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 1640
House Bill 2490
Sponsored by Representative SHETTERLY
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.
Modifies requirements in protective proceedings in which
respondent or protected person is minor.
A BILL FOR AN ACT
Relating to minors; amending ORS 109.119, 125.025 and 125.055.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 109.119 is amended to read:
109.119. (1) { + (a) + } 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, 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.
{ + (b) A protective proceeding under ORS chapter 125 in
which the respondent or protected person is a minor must comply
with subsections (2), (3) and (4) 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;
(C) Circumstances detrimental to the child exist if relief is
denied;
(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) 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) 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.
(c) 'Grandparent' means the legal parent of the child's legal
parent.
(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 2. ORS 109.119, as amended by section 1e, chapter 873,
Oregon Laws 2001, is amended to read:
109.119. (1) { + (a) + } 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, 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.
{ + (b) A protective proceeding under ORS chapter 125 in
which the respondent or protected person is a minor must comply
with subsections (2), (3) and (4) 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;
(C) Circumstances detrimental to the child exist if relief is
denied;
(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) Costs for the representation of an intervenor under this
section or ORS 419B.875 may not be charged against funds
appropriated for public 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) 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.
(c) 'Grandparent' means the legal parent of the child's legal
parent.
(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 3. ORS 125.025 is amended to read:
125.025. (1) A court having jurisdiction over a protective
proceeding shall exercise continuing authority over the
proceeding. Subject to the provisions of this chapter, the court
may act upon the petition or motion of any person or upon its own
authority at any time and in any manner it deems appropriate to
determine the condition and welfare of the respondent or
protected person and to inquire into the proper performance of
the duties of a fiduciary appointed under the provisions of this
chapter.
(2) A court having jurisdiction over a protective proceeding in
which the respondent or protected person is a minor shall { + :
(a) + } { - Consider and - } Apply all relevant provisions
of the Indian Child Welfare Act codified at 25 U.S.C. sections
1901 et seq. { + ; and
(b) Apply ORS 109.119 (2), (3) and (4). + }
(3) A court having jurisdiction over a protective proceeding
may:
(a) Compel the attendance of any person, including respondents,
protected persons, fiduciaries and any other person who may have
knowledge about the person or estate of a respondent or protected
person. The court may require those persons to respond to
inquiries and produce documents that are subject to discovery
under ORCP 36.
(b) Appoint counsel for a respondent or protected person.
(c) Appoint investigators, visitors and experts to aid the
court in the court's investigation.
(d) Exercise jurisdiction over any transaction entered into by
a fiduciary to determine if a conflict of interest existed and
enter an appropriate judgment with respect to the transaction.
(e) Surcharge a surety for any loss caused by failure of a
fiduciary to perform a fiduciary duty or any other duty imposed
by this chapter, including a surcharge for attorney fees incurred
by a respondent or protected person by reason of the failure.
(f) Require immediate delivery of a protected person or
property of the protected person, including records, accounts and
documents relating to that property, to the court or to a place
it designates.
(g) Require the fiduciary to produce any and all records that
might provide information about the treatment or condition of the
protected person or property of the protected person.
(h) Remove a fiduciary whenever that removal is in the best
interests of the protected person.
(i) Appoint a successor fiduciary when a fiduciary has died,
resigned or been removed.
(j) Require a respondent or protected person to submit to a
physical or mental examination pursuant to ORCP 44.
(k) Make provisions for parenting time or visitation { + in
accordance with ORS 107.102, 107.159, 107.431, 107.434 or 109.119
(3) and (4) + } or order support for any minor who is a
respondent or protected person in a protective proceeding.
(L) Impose any conditions and limitations upon the fiduciary
that the court considers appropriate, including limitations on
the duration of the appointment. Any conditions or limitations
imposed on the fiduciary must be reflected in the letters of
appointment.
(4) If the court finds that a conservator should be appointed,
the court may exercise all the powers over the estate and affairs
of the protected person that the protected person could exercise
if present and not under disability, except the power to make a
will. The court shall exercise those powers for the benefit of
the protected person and members of the household of the
protected person.
(5) The powers of the court in protective proceedings may be
exercised by the court directly or through a fiduciary.
SECTION 4. ORS 125.055 is amended to read:
125.055. (1) A petition in a protective proceeding that seeks
the appointment of a fiduciary must designate the type of
fiduciary that the petitioner seeks to have appointed. If the
petition does not request the appointment of a fiduciary, or if
the petition requests both the appointment of a fiduciary and
some other protective order, the petition must contain a
statement of the nature of the protective order requested. The
caption of the petition must reflect the type of fiduciary whose
appointment is requested or, if the appointment of a fiduciary is
not requested, the nature of the protective order requested. An
original and duplicate copy of the petition must be filed with
the court.
(2) A petition in a protective proceeding must contain the
following information to the extent that the petitioner is aware
of the information or to the extent that the petitioner is able
to acquire the information with reasonable effort:
(a) The name, age, residence address and current location of
the respondent.
(b) The interest of the petitioner.
(c) The name, age and address of the petitioner and any person
nominated as fiduciary in the petition and the relationship of
the nominated person to the respondent.
(d) A statement as to whether the person nominated to be
fiduciary has been convicted of a crime, has filed for or
received protection under the bankruptcy laws or has had a
license revoked or canceled that was required by the laws of any
state for the practice of a profession or occupation. If the
nominated person has been convicted of a crime, filed for or
received protection under bankruptcy laws or had a professional
or occupational license revoked or canceled, the petition shall
contain a statement of the circumstances surrounding those
events. If the person nominated is not the petitioner, the
statement must indicate that the person nominated is willing and
able to serve.
(e) The name and address of any fiduciary that has been
appointed for the respondent by a court of any state, any trustee
for a trust established by or for the respondent, any person
appointed as a health care representative under the provisions of
ORS 127.505 to 127.660 and any person acting as attorney-in-fact
for the respondent under a power of attorney.
(f) The name and address of the respondent's treating physician
and any other person who is providing care to the respondent.
(g) The factual information that supports the request for the
appointment of a fiduciary or entry of other protective order,
and the names and addresses of all persons who have information
that would support a finding that an adult respondent is
incapacitated or financially incapable.
(h) A statement that indicates whether the nominated person
intends to place the respondent in a mental health treatment
facility, a nursing home or other residential facility.
(i) A general description of the estate of the respondent and
the respondent's sources of income and the amount of that income.
(j) A statement indicating whether the person nominated as
fiduciary is a public or private agency or organization that
provides services to the respondent or an employee of a public or
private agency or organization that provides services to the
respondent.
(3) In addition to the requirements of subsection (2) of this
section, if a petition seeks appointment of a guardian, the
petition must contain a statement on whether the guardian will
exercise any control over the estate of the respondent. If the
guardian will exercise any control over the estate of the
respondent, the petition must contain a statement of the monthly
income of the respondent, the sources of the respondent's income,
and the amount of any moneys that the guardian will be holding
for the respondent at the time of the appointment. If the
petition seeks the appointment of a guardian for an adult
respondent or { + of a + } temporary fiduciary who will exercise
the powers of a guardian for an adult respondent, the petition
must contain a statement notifying the court that a visitor must
be appointed.
(4) In addition to the requirements of subsection (2) of this
section, if a petition seeks appointment of a conservator or a
temporary fiduciary who will exercise the powers of a conservator
or if a petition seeks a protective order relating to the estate
of the respondent, the petition must contain the petitioner's
estimate of the value of the estate.
(5) A petitioner may join parties in a petition in the manner
provided by ORCP 28 for the joining of defendants.
{ + (6) A petition that seeks appointment of a guardian of a
minor must have an affidavit attached containing the information
described in ORS 109.767 (1). + }
SECTION 5. { + The amendments to ORS 109.119, 125.025 and
125.055 by sections 1 to 4 of this 2003 Act apply to petitions
for guardianship of a minor filed before, on or after the
effective date of this 2003 Act. + }
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