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 869
Senate Bill 104
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Attorney General Hardy
Myers for Department of Justice)
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.
Adds defined terms youth and youth offender when appropriate in
provisions dealing with appeals in juvenile court cases.
Declares emergency, effective July 1, 2003.
A BILL FOR AN ACT
Relating to appeals in juvenile cases; amending ORS 419A.190,
419A.200, 419A.205, 419A.208 and 419A.211; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 419A.200 is amended to read:
419A.200. (1) Except as provided in ORS 419A.190, any person or
entity, including, but not limited to, a party to a juvenile
court proceeding under ORS 419B.875 (1) or 419C.285 (1), whose
rights or duties are adversely affected by a judgment of the
juvenile court may appeal therefrom. An appeal from a circuit
court shall be taken to the Court of Appeals, and an appeal from
a county court shall be taken to the circuit court.
(2) If the proceeding is in the circuit court and no record of
the proceedings was kept, the court, on motion made not later
than 15 days after the entry of the court's judgment, shall grant
a rehearing and shall direct that a record of the proceedings be
kept. However, the court shall not grant a rehearing in a case
barred by ORS 419A.190 without the consent of the child { + ,
youth or youth offender + } affected by such case. If a rehearing
is held, the time for taking an appeal shall run from the date of
entry of the court's judgment after the rehearing.
(3)(a) The appeal may be taken by causing a notice of appeal,
in the form prescribed by ORS 19.250, to be served:
(A) On all parties who have appeared in the proceeding;
(B) On the trial court administrator or other person serving as
clerk of the juvenile court; and
(C) On the juvenile court transcript coordinator, if a
transcript is designated in connection with the appeal.
(b) The original of the notice with proof of service shall be
filed with:
(A) The Court of Appeals if the appeal is from a circuit court;
or
(B) The circuit court if the appeal is from a county court.
(c) The notice shall be filed not later than 30 days after the
entry of the court's judgment. On appeal from the county court,
the circuit court shall hear the matter de novo and its judgment
shall be appealable to the Court of Appeals in the same manner as
if the proceeding had been commenced in the circuit court.
(4) The counsel in the proceeding from which the appeal is
being taken shall file and serve those documents necessary to
commence an appeal if the counsel is requested to do so by the
party the counsel represents.
(5)(a) Upon motion of a person, other than the state, entitled
to appeal under subsection (1) of this section, the appellate
court shall grant the person leave to file a notice of appeal
after the time limits described in subsection (3) of this section
if:
(A) The person shows a colorable claim of error in the
proceeding from which the appeal is taken; and
(B) The person shows that the failure to file a timely notice
of appeal is not personally attributable to the person.
(b) A person other than the state is not entitled to relief
under this subsection for failure to file timely notice of
cross-appeal when the state appeals pursuant to ORS 419A.208.
(c) The request for leave to file a notice of appeal after the
time limits prescribed in subsection (3) of this section must be
filed no later than 90 days after entry of the judgment being
appealed and must be accompanied by the notice of appeal sought
to be filed. A request for leave under this subsection may be
filed by mail and is deemed filed on the date of mailing if the
request is mailed as provided in ORS 19.260.
(d) The court may not grant relief under this subsection unless
the state has notice and opportunity to respond to the person's
request for relief.
(6) An appeal to the Court of Appeals shall be conducted in the
same manner as an appeal under ORS chapter 19 except that:
(a) The court shall advance the appeal on the court's docket in
the same manner as appeals in criminal cases; and
(b) The court's scope of review is de novo on the record.
(7)(a) Except as provided in ORS 419A.208 (2), or when
otherwise ordered by the appellate court, the filing of an appeal
does not suspend an order or judgment of the juvenile court nor
discharge the child { + , youth or youth offender + } from the
custody of the person, institution or agency in whose custody the
child { + , youth or youth offender + } may have been placed nor
preclude the juvenile court after notice and hearing from
entering such further orders relating to the child's { + ,
youth's or youth offender's + } custody pending final disposition
of the appeal as it finds necessary by reason only of matters
transpiring subsequent to the order or judgment appealed from.
The trial court administrator shall immediately file certified
copies of any such order or judgment with the Court of Appeals.
(b) Notwithstanding the filing of an appeal from a
jurisdictional or dispositional judgment or an order entered
pursuant to ORS 419B.449 or 419B.476, the juvenile court may
proceed with the adjudication of a petition seeking termination
of the parental rights of a parent of the child who is subject to
the judgment from which the appeal is taken.
(c) The appeal of any judgment entered in a termination of
parental rights proceeding under paragraph (b) of this subsection
shall be consolidated, if appropriate, with any pending appeal of
an order or judgment entered under ORS 419B.325, 419B.449 or
419B.476. The consolidated appeal shall be conducted and advanced
on the court's docket in the same manner as termination of
parental rights cases.
(8) On appeal of a judgment or final order, the appellate court
may review any interlocutory order that:
(a) Involves the merits or necessarily affects the judgment or
final order appealed from; and
(b) Was made after entry of the last appealable judgment or
final order preceding entry of the judgment or final order being
appealed.
(9) The district attorney or Attorney General shall represent
the state in the appeal.
SECTION 2. ORS 419A.205 is amended to read:
419A.205. (1) For the purpose of being appealed, the following
are judgments:
(a) A judgment finding a child { + or youth + } to be within
the jurisdiction of the court;
(b) A judgment disposing of a petition including, but not
limited to, a disposition under ORS 419B.325 { + or
419C.411 + };
(c) Any final disposition of a petition; and
(d) A final order adversely affecting the rights or duties of a
party and made in a proceeding after judgment including, but not
limited to, a final order under ORS 419B.449 or 419B.476.
(2) An appeal from a judgment finding a child { + or youth + }
to be within the jurisdiction of the court does not deprive the
juvenile court of jurisdiction to proceed with a disposition of
the matter.
(3) If an appeal is taken from a judgment finding a child
{ + or youth + } to be within the jurisdiction of the court
before the juvenile court enters a judgment disposing of the
matter under ORS 419B.325 { + or 419C.411 + }, any necessary
modification of the appeal must be made according to the rules of
the appellate court.
(4) When an appeal is taken from a judgment finding a child
{ + or youth + } to be within the jurisdiction of the court, if
the appellate court:
(a) Reverses the judgment, the judgment disposing of the matter
is reversed; or
(b) Modifies the judgment, a party may move for relief as
otherwise provided by law.
SECTION 3. ORS 419A.208 is amended to read:
419A.208. (1) In addition to the state's right to appeal under
ORS 419A.200, the state may appeal from any of the following
orders of a judge or referee:
(a) An order made prior to an adjudicatory hearing dismissing
or setting aside a delinquency petition;
(b) An order that sets aside a petition for delinquency if the
order is made after an adjudicatory hearing in which the
{ - juvenile - } { + youth + } is found to be within the
jurisdiction of the court;
(c) An order made prior to an adjudicatory hearing suppressing
or limiting evidence or refusing to suppress or limit evidence;
or
(d) An order made prior to an adjudicatory hearing for the
return or restoration of things seized.
(2) If the state pursuant to subsection (1) of this section
appeals a preadjudicatory order, and the { - child - } { +
youth + } is in detention in the same proceeding pursuant to ORS
419C.109, 419C.136, 419C.139, 419C.170 and 419C.173, the juvenile
court shall consider release of the { - child - } { +
youth + } from detention during the pendency of the appeal in
accordance with the following provisions:
(a) When the { - child - } { + youth + } is charged with an
act that would be murder if committed by an adult, release shall
be denied when the proof is evident or the presumption strong
that the { - child - } { + youth + } committed the act.
(b) The { - child - } { + youth + } shall be released upon
the { - child's - } { + youth's + } personal recognizance
unless release criteria show to the satisfaction of the juvenile
court that the { - child - } { + youth + } would not be
likely to appear before the court as ordered upon later
appearance dates and that such a release is therefore
unwarranted. Release criteria shall include the following:
(A) The { - child's - } { + youth's + } education and
employment status and history and financial condition;
(B) The nature and extent of the { - child's - } { +
youth's + } family relationships;
(C) The { - child's - } { + youth's + } past and present
residences;
(D) The names of persons who agree to assist the
{ - child - } { + youth + } in attending court at the proper
time;
(E) The nature of the current petition;
(F) The { - child's - } { + youth's + } juvenile record, if
any, and, if the { - child - } { + youth + } has previously
been released pending trial, whether the { - child - } { +
youth + } appeared as required;
(G) Any facts indicating the possibility of violations of law
if the { - child - } { + youth + } is released without
restrictions;
(H) Any facts tending to indicate that the { - child - }
{ + youth + } has strong ties to the community; and
(I) Any other facts tending to indicate the likelihood that the
{ - child - } { + youth + } will appear before the court as
ordered upon later appearance dates.
(c) If the court finds that release of the { - child - }
{ + youth + } on the { - child's - } { + youth's + }
personal recognizance is unwarranted, it shall order conditional
release. The court may impose upon the released { - child - }
{ + youth + } one or more of the following conditions, but
shall impose the least onerous condition reasonably likely to
ensure the { - child's - } { + youth's + } later appearance:
(A) Release of the { - child - } { + youth + } into the
care of a parent or other responsible person or organization for
supervising the
{ - child - } { + youth + } and assisting the { - child - }
{ + youth + } in appearing in court. The supervisor shall
immediately notify the court in the event that the
{ - child - } { + youth + } breaches the terms of the
conditional release.
(B) Reasonable restrictions on the activities, movements,
associations and residences of the { - child - } { +
youth + }.
(C) Any other reasonable restriction designed to ensure the
{ - child's - } { + youth's + } appearance.
SECTION 4. ORS 419A.211 is amended to read:
419A.211. (1) If the child { + , youth, 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 or 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,
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 5. ORS 419A.211, as amended by section 56, chapter 962,
Oregon Laws 2001, is amended to read:
419A.211. (1) If the child { + , youth, 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 or 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,
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 6. ORS 419A.190 is amended to read:
419A.190. Except as provided in ORS 153.108 (1), proceedings in
adult criminal court and other juvenile court adjudicatory
proceedings based on an act alleged in a petition or citation to
have been committed by a child { + , youth or youth offender + }
or allegations arising out of the same conduct are barred when
the juvenile court judge or referee has begun taking evidence in
an adjudicatory hearing or has accepted a child's { + or
youth's + } admission or answer of no contest to the allegations
of the petition or citation. This section { - shall - } { +
does + } not prevent appeal of any preadjudicatory order of the
court { - which - } { + that + } could be appealed in a
criminal case, including, but not limited to, an order
suppressing evidence.
SECTION 7. { + This 2003 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2003 Act takes effect July 1,
2003. + }
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