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 2288
(To Resolve Conflicts)
B-Engrossed
House Bill 3338
Ordered by the Senate June 25
Including House Amendments dated May 9 and Senate Amendments
dated
June 25 to resolve conflicts
Sponsored by 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.
Modifies provisions relating to desertion by parent in adoption
proceedings.
Modifies provisions relating to adoption of person who is 18
years of age or older or is legally married.
A BILL FOR AN ACT
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:
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. + }
{ - (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;
(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.
{ - (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. + }
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