72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 1405
House Bill 2093
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Committee on
Judiciary)
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.
Removes right to court-appointed counsel in dependency
proceedings.
A BILL FOR AN ACT
Relating to juveniles; amending ORS 135.055, 138.490, 151.216,
151.225, 151.450, 151.465, 419A.116, 419A.170, 419A.211,
419A.262, 419B.208 and 419B.923; and repealing ORS 419B.195,
419B.198 and 419B.201.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + ORS 419B.195, 419B.198 and 419B.201 are
repealed. + }
SECTION 2. ORS 135.055 is amended to read:
135.055. (1) Counsel appointed pursuant to ORS 135.045 or
135.050, if other than counsel provided pursuant to ORS 151.010
or 151.460, shall, upon certification by the court, be paid fair
compensation for representation in the case:
(a) By the county, subject to the approval of the governing
body of the county, in a proceeding in a county or justice court.
(b) By the State Court Administrator from funds available for
the purpose, in a proceeding in a circuit court.
(2) Except for counsel appointed pursuant to contracts or
counsel employed by the public defense services executive
director, compensation payable to appointed counsel under
subsection (1) of this section:
(a) In a proceeding in a county or justice court shall not be
less than $30 per hour.
(b) In a proceeding in a circuit court shall be subject to the
applicable compensation established under ORS 151.430 (5).
(3)(a) A person determined to be eligible for appointed counsel
is entitled to necessary and reasonable expenses for
investigation, preparation and presentation of the case. The
person or the counsel for the person may upon written request,
which shall not be disclosed to the district attorney prior to
conclusion of the case, secure approval and preauthorization of
payment of such expenses as are necessary and proper in the
investigation, preparation and presentation of the case,
including but not limited to travel, telephone calls,
photocopying or other reproduction of documents, necessary costs
associated with obtaining the attendance of witnesses for the
defense, expert witness fees and fees for interpreters and
assistive communication devices necessary for the purpose of
communication between counsel and a client or witness in the
case.
(b) In a county or justice court, the request shall be in the
form of a motion to the court. The motion must be accompanied by
a supporting affidavit which sets out in detail the purpose of
the requested expenditure, the name of the service provider or
other recipient of the funds, the dollar amount of the requested
expenditure which may not be exceeded without additional
authorization and the date or dates during which the service will
be rendered or events will occur for which the expenditure is
requested.
(c) In a circuit court, the request shall be in the form and
contain the information that is required by policies of the State
Court Administrator.
(d) Entitlement under this subsection to payment for expenses
is subject to policies and procedures established by the State
Court Administrator, including, but not limited to, cost
guidelines and standards established under ORS 151.430.
Entitlement to payment of extraordinary expenses is dependent
upon obtaining preauthorization from the court, if the case is in
county or justice court, or from the State Court Administrator,
if the case is in circuit court, except as otherwise provided in
the policies and procedures established by the State Court
Administrator. The presiding judge or trial judge has ultimate
authority for approval of expenses under this paragraph. Approved
and authorized expenses shall be paid:
(A) By the county, in respect to a proceeding in a county or
justice court.
(B) By the State Court Administrator from funds available for
the purpose, in respect to a proceeding in a circuit court.
(C) By the city, in respect to a proceeding in municipal court.
(4) Upon completion of all services by the counsel of a person
determined to be eligible for appointed counsel, the counsel
shall submit to the court a statement of all reasonable fees and
expenses of investigation, preparation, presentation and, if
counsel was appointed by the court, representation paid or
incurred, supported by appropriate receipts or vouchers and
certified by the counsel to be true and accurate. The counsel, at
that time, may request payment or reimbursement for any such
expenses for which payment has not yet been approved and
authorized.
(5) The total fees and expenses payable under this section
shall be subject to the review of the presiding judge for the
judicial district. The presiding judge shall certify that such
amount is fair reimbursement for fees and expenses for
representation in the case as provided in subsection (6) of this
section. Upon certification and any verification as provided
under subsection (6) of this section, the amount of the fees and
expenses approved by the court and not already paid shall be
paid:
(a) By the county, in respect to a proceeding in a county or
justice court.
(b) By the State Court Administrator from funds available for
the purpose, in respect to a proceeding in a circuit court.
(6)(a) The presiding judge shall certify to the administrative
authority responsible for paying fees and expenses under this
section that the amount for payment is reasonable and that the
amount is properly payable out of public funds.
(b) With any certification by the court of fees or expenses
that the State Court Administrator is to pay for counsel or other
costs of indigent representation under ORS 33.015 to 33.155,
135.045, 135.055, 135.705, 144.317, 144.343, 151.430, 151.450,
151.460, 151.505, 161.346, 161.365, 161.665, 163.105,
{ - 419B.195, 419B.201, - } 419B.205, 419B.518, 419C.200,
419C.206, 426.255 and 426.307, the court shall include any
information identified and requested by the State Court
Administrator as needed for audit, statistical or any other
purpose pertinent to insure the proper disbursement of state
funds or pertinent to the provision of appointed counsel
compensated at state expense.
(c) The presiding judge may authorize the trial court
administrator to make the certification required under this
section in some or all cases where the amount for payment meets
the policies and procedures established by the State Court
Administrator under ORS 151.430 (5) and (6). The authorization
must be in writing and must specify the types of cases to which
the authorization applies.
(7) As used in this section unless the context requires
otherwise, 'counsel' includes a legal advisor appointed under ORS
135.045.
SECTION 3. ORS 138.490 is amended to read:
138.490. (1) When an attorney has been appointed by a court or
magistrate other than the Supreme Court or Court of Appeals under
ORS 135.045, 135.050, { - 419B.195, - } 419B.205, 419C.200 or
426.100, and the case later is taken to a court on an appeal or
on a post-conviction proceeding, and that attorney previously
appointed is consulted or joined by counsel appointed on the
appeal or post-conviction proceeding, the circuit court from
which or to which the case is taken:
(a) May certify an amount that the attorney be paid as
reasonable compensation, determined and allowed as provided in
ORS 135.055 for a proceeding in a circuit court, for those
services not compensated pursuant to an earlier certification for
payment in the case; and
(b) May certify an amount that the attorney be reimbursed for
reasonable and necessary expenses incurred in connection with the
consultation or joinder.
(2) The state shall pay the attorney, from funds available for
the purpose, the sum certified under this section and verified as
provided in ORS 135.055.
SECTION 4. ORS 151.216, as amended by section 106, chapter 962,
Oregon Laws 2001, is amended to read:
151.216. (1) The Public Defense Services Commission shall:
(a) Establish and maintain a public defense system that ensures
the provision of public defense services in the most
cost-efficient manner consistent with the Oregon Constitution,
the United States Constitution and Oregon and national standards
of justice.
(b) Establish an office of public defense services and appoint
a public defense services executive director who serves at the
pleasure of the commission.
(c) Submit the budget of the commission and the office of
public defense services to the Legislative Assembly after the
budget is submitted to the commission by the director and
approved by the commission. The Chief Justice of the Supreme
Court and the chairperson of the commission shall present the
budget to the Legislative Assembly.
(d) Review and approve any public defense services contract
negotiated by the director before the contract can become
effective.
(e) Adopt a compensation plan for the office of public defense
services that is commensurate with other state agencies.
(f) Adopt rules regarding:
(A) The determination of financial eligibility of persons
entitled to be represented by appointed counsel at state expense;
(B) The appointment of counsel;
(C) The fair compensation of counsel appointed to represent a
person financially eligible for appointed counsel at state
expense;
(D) Appointed counsel compensation disputes;
(E) Any other costs associated with the representation of a
person by appointed counsel in the state courts that are required
to be paid by the state under ORS 34.355, 135.055, 138.500,
138.590, 161.365, 419A.211, { - 419B.201, - } 419B.208,
419B.518, 419B.908, 419C.206, 419C.209, 419C.408, 426.100,
426.135, 426.250, 426.307, 427.265, 427.295, 436.265 or 436.315
or any other provision of law that expressly provides for payment
of such compensation, costs or expenses by the commission;
(F) Professional qualification standards for counsel appointed
to represent public defense clients;
(G) Performance standards for legal representation;
(H) Procedures for the contracting of public defense services;
and
(I) Any other matters necessary to carry out the duties of the
commission.
(g) Reimburse the State Court Administrator from funds
deposited in the subaccount established under ORS 151.225 for the
costs of personnel and other costs associated with location of
eligibility verification and screening personnel pursuant to ORS
151.489 by the State Court Administrator.
(2) Rules adopted by the commission supersede any conflicting
rules, policies or procedures of the Public Defender Committee,
State Court Administrator, circuit courts, the Court of Appeals,
the Supreme Court and the Psychiatric Security Review Board
related to the exercise of the commission's administrative
responsibilities under this section and transferred duties,
functions and powers as they occur.
(3) The commission may accept gifts, grants or contributions
from any source, whether public or private. However, the
commission may not accept a gift, grant or contribution if
acceptance would create a conflict of interest. Moneys accepted
under this subsection shall be deposited in the Public Defense
Services Account created in ORS 151.225 and expended for the
purposes for which given or granted.
(4) The commission may not:
(a) Make any decision regarding the handling of any individual
case;
(b) Have access to any case file; or
(c) Interfere with the director or any member of the staff of
the director in carrying out professional duties involving the
legal representation of public defense clients.
SECTION 5. ORS 151.225, as amended by section 106b, chapter
962, Oregon Laws 2001, is amended to read:
151.225. (1) There is created a Public Defense Services Account
in the General Fund. The Public Defense Services Account is
continuously appropriated to the Public Defense Services
Commission to pay compensation of counsel and other expenses in
connection with the legal representation of persons for which the
commission is responsible by law.
(2) All moneys appropriated to the commission to pay
compensation of counsel and other expenses in connection with the
legal representation of persons for which the commission is
responsible by law shall be deposited in the Public Defense
Services Account.
(3) All moneys received by the Judicial Department under ORS
135.050 (8), 151.487 (1), 151.505 (3), 419A.211 { - , 419B.198
(1) - } or 419C.203 (1) shall be deposited in a separate
subaccount created in the Public Defense Services Account to be
used by the public defense services executive director to
reimburse the actual costs and expenses, including personnel
expenses, incurred in administration and support of the public
defense system.
(4) All gifts, grants or contributions accepted by the
commission under ORS 151.216 shall be deposited in a separate
subaccount created in the Public Defense Services Account to be
used by the commission for the purpose for which the gift, grant
or contribution was given or granted.
(5) As used in this section, 'other expenses in connection with
the legal representation of persons for which the commission is
responsible by law' includes expenses incurred in the
administration of the public defense system.
SECTION 6. ORS 151.450 is amended to read:
151.450. The State Court Administrator shall:
(1) Pay the compensation for counsel, other than counsel
employed or compensated by the Public Defense Services
Commission, appointed to represent indigents in the state courts,
including in cases seeking judicial review under ORS 144.335 when
appointed counsel employed or compensated by the Public Defense
Services Commission cannot provide representation due to a
conflict of interest, and other costs and expenses of that
representation that are required to be paid by the state under
ORS 33.015 to 33.155, 34.355, 135.055, 138.500, 138.590, 161.327,
161.365, 161.385, 419A.211, { - 419B.195, 419B.201, - }
419B.205, 419B.518, 419C.200, 419C.206, 426.100, 426.135,
426.275, 426.307, 427.265, 427.295, 436.265 or 436.315 or any
other provisions of law that expressly provide for payment of
such compensation costs or expenses by the State Court
Administrator.
(2) Develop a system for conducting financial and performance
audits of indigent defense contracts.
SECTION 7. ORS 151.465 is amended to read:
151.465. (1) There is created a State Court Indigent Defense
Account in the General Fund which is continuously appropriated to
the State Court Administrator to pay compensation of counsel and
other expenses in connection with the legal representation of
indigent persons, for which the State Court Administrator is
responsible by law. Such expenses shall be paid only from funds
specifically appropriated therefor, and no other moneys
appropriated to the Judicial Department or State Court
Administrator shall be used for these purposes.
(2) All moneys appropriated to the Judicial Department or State
Court Administrator to pay compensation of counsel and other
expenses in connection with the legal representation of indigent
persons for which the State Court Administrator is responsible by
law shall be deposited in the State Court Indigent Defense
Account.
(3) All money received by the Judicial Department under ORS
151.505 (3) or ORS 135.050 (7), 151.487 (1), 419A.211 { - ,
419B.198 (1) - } and 419C.203 (1) shall be deposited in a
separate subaccount created in the State Court Indigent Defense
Account to be used by the State Court Administrator to reimburse
the actual costs and expenses, including personnel expenses,
incurred in administration and support of the indigent defense
program under ORS 151.430 to 151.497.
SECTION 8. ORS 419A.116 is amended to read:
419A.116. (1) After reviewing each case, the local citizen
review board shall make written findings and recommendations with
respect to:
(a) Whether reasonable efforts were made prior to the
placement, to prevent or eliminate the need for removal of the
child from the home;
(b) If the case plan at the time of the review is to reunify
the family, whether the Department of Human Services 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;
(c) If the case plan at the time of the review is something
other than to reunify the family, whether the department has made
reasonable efforts to place the child in a timely manner in
accordance with the case plan and to complete the steps necessary
to finalize the permanent placement of the child;
(d) The continuing need for and appropriateness of the
placement;
(e) Compliance with the case plan;
(f) The progress which has been made toward alleviating the
need for placement;
(g) A likely date by which the child may be returned home or
placed for adoption; { + and + }
(h) Other problems, solutions or alternatives the board
determines should be explored { + . + } { - ; and - }
{ - (i) Whether the court should appoint an attorney or other
person as special advocate to represent or appear on behalf of
the child under ORS 419B.195. - }
(2) The local citizen review board may, if the case plan has
changed during the period since the last review by a local
citizen review board or court hearing, make written findings and
recommendations with respect to:
(a) Whether the Department of Human Services 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, if a plan to
reunify the family was in effect for any part of the period since
the last review or hearing; or
(b) Whether the department has made reasonable efforts to place
the child in a timely manner in accordance with the case plan and
complete the steps necessary to finalize the permanent placement
of the child, if a case plan other than to reunify the family was
in effect for any part of the period since the last review or
hearing.
(3) In determining whether the Department of Human Services 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, the local citizen review board shall consider
the child's health and safety the paramount concerns.
(4) No later than 10 days after receiving the findings and
recommendations of the local citizen review board, a party
adversely affected by the findings and recommendations may
request judicial review.
SECTION 9. ORS 419A.170 is amended to read:
419A.170. (1) In every case involving an abused or neglected
child that results in a judicial proceeding in juvenile court,
the court shall appoint a court appointed special advocate. The
court appointed special advocate shall be deemed a party in these
proceedings, and in the furtherance thereof, may be represented
by counsel, file pleadings and request hearings and may subpoena,
examine and cross-examine witnesses. If the court appointed
special advocate is represented by counsel, counsel shall be paid
from funds available to the Court Appointed Special Advocate
Volunteer Program. No funds from the State Indigent Defense Fund
or Judicial Department operating funds shall be used for this
purpose.
(2) Subject to the direction of the court, the duties of the
court appointed special advocate shall be to:
(a) Investigate all relevant information about the case;
(b) Advocate for the child, ensuring that all relevant facts
are brought before the court;
(c) Facilitate and negotiate to ensure that the court, the
Department of Human Services, if applicable, and the child's
attorney, if any, fulfill their obligations to the child in a
timely fashion; and
(d) Monitor all court orders to ensure compliance and to bring
to the court's attention any change in circumstances that may
require a modification of the court's order.
(3) If a juvenile court does not have available to it a CASA
Volunteer Program, or a sufficient number of qualified CASA
volunteers, the court may, in fulfillment of the requirements of
this section, appoint a juvenile department employee or other
suitable person to represent the child's interest in court
pursuant to ORS 419A.012 { - or 419B.195 - } .
(4) Any person appointed as a court appointed special advocate
in any judicial proceeding on behalf of the child shall be immune
from any liability for defamation or statements made in good
faith by that person, orally or in writing, in the course of the
case review or judicial proceeding.
(5) Any person appointed as a court appointed special advocate,
CASA Volunteer Program director, CASA Volunteer Program employee
or member of the board of directors or trustees of any CASA
Volunteer Program shall be immune from any liability for acts or
omissions or errors in judgment made in good faith in the course
or scope of that person's duties or employment as part of a CASA
Volunteer Program.
(6) Whenever the court appoints a court appointed special
advocate or other person under subsections (1) to (3) of this
section to represent the child, it may require a parent, if able,
or guardian of the estate, if the estate is able, to pay, in
whole or in part, the reasonable costs of CASA services including
reasonable attorney fees. The court's order of payment shall be
enforceable in the same manner as an order of support under ORS
419B.408.
(7) Upon presentation of the order of appointment by the court
appointed special advocate, any agency, hospital, school
organization, division, office or department of the state,
doctor, nurse or other health care provider, psychologist,
psychiatrist, police department or mental health clinic shall
permit the court appointed special advocate to inspect and copy
any records relating to the child or children involved in the
case, without the consent of the child or children or parents.
(8) All records and information acquired or reviewed by a court
appointed special advocate during the course of official duties
shall be deemed confidential under ORS 419A.255.
(9) For the purposes of a Child Abuse Prevention and Treatment
Act (42 U.S.C. 5101 et seq.) grant to this state under Public Law
No. 93-247, or any related state or federal legislation, a court
appointed special advocate or other person appointed pursuant to
subsections (1) to (3) of this section shall be deemed a guardian
ad litem to represent the interests of the minor in proceedings
before the court. Any provisions of this section and ORS 419B.035
and 419B.045 that shall cause this state to lose federal funding
shall be considered null and void.
(10) There is created a Court Appointed Special Advocate (CASA)
Fund in the General Fund. The fund shall consist of all moneys
credited thereto. Moneys appropriated to the Court Appointed
Special Advocate Fund by this section and ORS 419B.035 and
419B.045 may be used only to carry out the purposes of this
section. The State Commission on Children and Families may apply
for and receive funds from federal and private sources for
carrying out the provisions of this section and ORS 419B.035 and
419B.045.
(11) The state commission may expend moneys from the Court
Appointed Special Advocate Fund directly or indirectly through
contracts or grants for the creation, supervision and operation
of CASA Volunteer Programs statewide in accordance with the
provisions of ORS 419A.045 to 419A.048. The commission may also
expend moneys from the Court Appointed Special Advocate Fund to
pay the reasonable costs of its administration of the Court
Appointed Special Advocate Fund. The commission shall adopt rules
for carrying out its responsibilities under this section and ORS
419B.035 and 419B.045.
SECTION 10. ORS 419A.170, as amended by section 91, chapter
962, Oregon Laws 2001, is amended to read:
419A.170. (1) In every case involving an abused or neglected
child that results in a judicial proceeding in juvenile court,
the court shall appoint a court appointed special advocate. The
court appointed special advocate shall be deemed a party in these
proceedings, and in the furtherance thereof, may be represented
by counsel, file pleadings and request hearings and may subpoena,
examine and cross-examine witnesses. If the court appointed
special advocate is represented by counsel, counsel shall be paid
from funds available to the Court Appointed Special Advocate
Volunteer Program. No funds from the Public Defense Services
Account or Judicial Department operating funds shall be used for
this purpose.
(2) Subject to the direction of the court, the duties of the
court appointed special advocate shall be to:
(a) Investigate all relevant information about the case;
(b) Advocate for the child, ensuring that all relevant facts
are brought before the court;
(c) Facilitate and negotiate to ensure that the court,
Department of Human Services, if applicable, and the child's
attorney, if any, fulfill their obligations to the child in a
timely fashion; and
(d) Monitor all court orders to ensure compliance and to bring
to the court's attention any change in circumstances that may
require a modification of the court's order.
(3) If a juvenile court does not have available to it a CASA
Volunteer Program, or a sufficient number of qualified CASA
volunteers, the court may, in fulfillment of the requirements of
this section, appoint a juvenile department employee or other
suitable person to represent the child's interest in court
pursuant to ORS 419A.012 { - or 419B.195 - } .
(4) Any person appointed as a court appointed special advocate
in any judicial proceeding on behalf of the child shall be immune
from any liability for defamation or statements made in good
faith by that person, orally or in writing, in the course of the
case review or judicial proceeding.
(5) Any person appointed as a court appointed special advocate,
CASA Volunteer Program director, CASA Volunteer Program employee
or member of the board of directors or trustees of any CASA
Volunteer Program shall be immune from any liability for acts or
omissions or errors in judgment made in good faith in the course
or scope of that person's duties or employment as part of a CASA
Volunteer Program.
(6) Whenever the court appoints a court appointed special
advocate or other person under subsections (1) to (3) of this
section to represent the child, it may require a parent, if able,
or guardian of the estate, if the estate is able, to pay, in
whole or in part, the reasonable costs of CASA services including
reasonable attorney fees. The court's order of payment shall be
enforceable in the same manner as an order of support under ORS
419B.408.
(7) Upon presentation of the order of appointment by the court
appointed special advocate, any agency, hospital, school
organization, division, office or department of the state,
doctor, nurse or other health care provider, psychologist,
psychiatrist, police department or mental health clinic shall
permit the court appointed special advocate to inspect and copy
any records relating to the child or children involved in the
case, without the consent of the child or children or parents.
(8) All records and information acquired or reviewed by a court
appointed special advocate during the course of official duties
shall be deemed confidential under ORS 419A.255.
(9) For the purposes of a Child Abuse Prevention and Treatment
Act (42 U.S.C. 5101 et seq.) grant to this state under Public Law
No. 93-247, or any related state or federal legislation, a court
appointed special advocate or other person appointed pursuant to
subsections (1) to (3) of this section shall be deemed a guardian
ad litem to represent the interests of the minor in proceedings
before the court. Any provisions of this section and ORS 419B.035
and 419B.045 that shall cause this state to lose federal funding
shall be considered null and void.
(10) There is created a Court Appointed Special Advocate (CASA)
Fund in the General Fund. The fund shall consist of all moneys
credited thereto. Moneys appropriated to the Court Appointed
Special Advocate Fund by this section and ORS 419B.035 and
419B.045 may be used only to carry out the purposes of this
section. The State Commission on Children and Families may apply
for and receive funds from federal and private sources for
carrying out the provisions of this section and ORS 419B.035 and
419B.045.
(11) The state commission may expend moneys from the Court
Appointed Special Advocate Fund directly or indirectly through
contracts or grants for the creation, supervision and operation
of CASA Volunteer Programs statewide in accordance with the
provisions of ORS 419A.045 to 419A.048. The commission may also
expend moneys from the Court Appointed Special Advocate Fund to
pay the reasonable costs of its administration of the Court
Appointed Special Advocate Fund. The commission shall adopt rules
for carrying out its responsibilities under this section and ORS
419B.035 and 419B.045.
SECTION 11. ORS 419A.211 is amended to read:
419A.211. (1) If { - the child - } { + a youth
offender + }, parent or guardian is shown to be without
sufficient financial means to employ suitable counsel possessing
skills and experience commensurate with the nature and complexity
of the case to represent the person in an appeal as provided in
ORS 419A.200 and 419A.208, the court, upon request of the person
or upon its own motion, shall appoint suitable counsel to
represent the person. Counsel appointed by the court shall be
paid compensation determined by the appellate court as provided
in ORS 135.055 if the circuit court is the appellate court or as
provided in ORS 138.500 if the Court of Appeals or the Supreme
Court is the appellate court.
(2)(a) When the court appoints counsel to represent the
{ - child - } { + youth offender + }, it may require the
parent, if able, or guardian of the estate, if the estate is
able, to pay to the State Court Indigent Defense Account in the
General Fund in full or in part the administrative costs of
determining the ability of the parents or estate to pay for legal
services and the costs of the legal and other services that are
related to the provision of appointed counsel.
(b) The test of the parent's or estate's ability to pay costs
under paragraph (a) of this subsection shall be the same test as
applied to appointment of counsel for defendants under ORS
135.050. If counsel is provided at state expense, the court shall
apply this test in accordance with the rules of the State Court
Administrator adopted under ORS 151.487.
(c) If counsel is provided at state expense, the court shall
determine the amount the parents or estate shall be required to
pay for the costs of administrative, legal and other services
related to the provision of appointed counsel in the same manner
as this amount is determined under ORS 151.487.
(d) The court's order of payment shall be enforceable in the
same manner as an order of support under ORS 419B.408 and
419C.600.
(3) When the court appoints counsel and the { - child - }
{ + youth offender + }, parent or guardian is without
sufficient financial means to employ counsel, the compensation
for counsel and costs and expenses necessary to the appeal shall
be allowed and paid as provided in ORS 135.055 if the circuit
court is the appellate court or as provided in ORS 138.500 if the
Court of Appeals or the Supreme Court is the appellate court.
SECTION 12. ORS 419A.211, as amended by section 56, chapter
962, Oregon Laws 2001, is amended to read:
419A.211. (1) If { - the child - } { + a youth
offender + }, parent or guardian is determined to be entitled to,
and financially eligible for, appointment of counsel at state
expense in an appeal as provided in ORS 419A.200 and 419A.208,
the court, upon request of the person or upon its own motion,
shall appoint suitable counsel to represent the person. Counsel
appointed by the court shall be paid compensation determined by
the public defense services executive director as provided in ORS
135.055 if the circuit court is the appellate court or as
provided in ORS 138.500 if the Court of Appeals or the Supreme
Court is the appellate court.
(2)(a) When the court appoints counsel to represent the
{ - child - } { + youth offender + }, it may order the
parent, if able, or guardian of the estate, if the estate is
able, to pay to the Public Defense Services Account in the
General Fund, through the clerk of the court, in full or in part
the administrative costs of determining the ability of the
parents or estate to pay for legal services and the costs of the
legal and other services that are related to the provision of
appointed counsel.
(b) The test of the parent's or estate's ability to pay costs
under paragraph (a) of this subsection is the same test as
applied to appointment of counsel for defendants under ORS
151.216. If counsel is provided at state expense, the court shall
apply this test in accordance with the guidelines adopted by the
Public Defense Services Commission under ORS 151.485.
(c) If counsel is provided at state expense, the court shall
determine the amount the parents or estate is required to pay for
the costs of administrative, legal and other services related to
the provision of appointed counsel in the same manner as this
amount is determined under ORS 151.487.
(d) The court's order of payment is enforceable in the same
manner as an order of support under ORS 419B.408 and 419C.600.
(3) When the court appoints counsel and the { - child - }
{ + youth offender + }, parent or guardian has been determined
to be entitled to, and financially eligible for, appointed
counsel at state expense, the compensation for counsel and costs
and expenses necessary to the appeal shall be determined and paid
as provided in ORS 135.055 if the circuit court is the appellate
court or as provided in ORS 138.500 if the Court of Appeals or
the Supreme Court is the appellate court.
SECTION 13. 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 expunction judgment 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.812 to 419B.839
and 419B.908. Rules of evidence shall be as in a hearing to
establish juvenile court jurisdiction and as defined in ORS
419B.310 (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 judgment granting or denying expunction.
(16) The juvenile court or juvenile department shall send a
copy of an expunction judgment to each agency subject to the
judgment. Upon receipt of a copy of the judgment, 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 judgment have
indicated their compliance or in any event no later than six
weeks following the date the judgment 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 judgment, 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 judgment, except the original expunction judgment
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 judgment of any juvenile court of appropriate
jurisdiction in this state issuing an expunction judgment.
(19) Upon entry of an expunction judgment, 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 judgment 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 expunction judgment 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 expunction judgment and list of complying and
noncomplying agencies shall be released from confidentiality only
on order of the court originating the expunction judgment, 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 14. ORS 419B.208 is amended to read:
419B.208. Appointment of counsel for the { - child or - }
parent is subject to ORS 135.055, 151.430 to 151.480 and
applicable contracts entered into by the State Court
Administrator under ORS 151.460.
SECTION 15. ORS 419B.208, as amended by section 47, chapter
962, Oregon Laws 2001, is amended to read:
419B.208. Appointment of counsel for the { - child or - }
parent is subject to ORS 135.055, 151.216 and 151.219.
SECTION 16. ORS 419B.923 is amended to read:
419B.923. (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, 419B.325 and
419B.893 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.
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