Chapter 374 Oregon Laws 2005

AN ACT

HB 2051

Relating to youth corrections; amending ORS 30.297, 30.298, 420.825, 420.888 and 420.890; and declaring an emergency.

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

SECTION 1. ORS 420.888 is amended to read:

420.888. As used in ORS 420.888 to 420.892:

(1) “Youth authority” means the Oregon Youth Authority.

(2) “Youth offender” [means a person at least 12 years of age and under 18 years of age who has been found to be within the jurisdiction of the juvenile court under ORS 419C.005] has the meaning given that term in ORS 419A.004.

(3) “Youth offender foster home” means any home maintained by a person who has under the care of the person in the home, for the purpose of providing the youth offender with supervision, food and lodging, a youth offender committed to the legal custody of the youth authority under ORS 419C.478 [for the purpose of providing the youth offender with supervision, food and lodging]. The youth offender must be [under 18 years of age,] unrelated to the person by blood or marriage and unattended by the youth offender’s parent or guardian. [“Youth offender foster home” may include, but need not be limited to, a foster home under the direct supervision of a private child-caring agency or institution providing services by contract with the Oregon Youth Authority. “Youth offender foster home” does not mean:]

[(a) A boarding school that is essentially and primarily engaged in educational work; or]

[(b) A home in which a child is provided with room and board by a school board.]

[(4) “Certificate of approval” means:]

[(a) A provisional certificate issued for 90 days; or]

[(b) A regular certificate that is effective for one year.]

SECTION 2. ORS 420.890 is amended to read:

420.890. (1) A person may not operate a youth offender foster home without a certificate of approval issued by the Oregon Youth Authority.

(2) A person may apply for a certificate of approval to operate a youth offender foster home by submitting an application to the youth authority on a form furnished by the youth authority.

(3)(a) Upon receipt of an application under subsection (2) of this section, the youth authority shall cause an investigation to be made of the applicant and the applicant’s home. The youth authority, in accordance with rules adopted under ORS 420.892, shall determine whether to issue a certificate of approval to the applicant [and, if a certificate of approval is to be issued, whether to issue a provisional certificate or a regular certificate]. The certificate must be in the form prescribed by the youth authority and must state [the period of time for which it is issued,] the name of the foster parent, the address of the premises to which the certificate applies and the maximum number of youth offenders to be maintained in the youth offender foster home at any one time. The certificate applies only to the premises designated in the certificate and a change of residence automatically terminates the certificate. The certificate is effective for one year.

(b) After notice and opportunity for hearing as provided in ORS 183.310 to 183.482, the youth authority may deny an application for a certificate of approval under paragraph (a) of this subsection. A person whose application for a certificate of approval has been denied may appeal the decision to the Court of Appeals in the manner provided in ORS 183.480 for the review of orders in contested cases.

(4)(a) After notice and opportunity for hearing as provided in ORS 183.310 to 183.482, the youth authority may revoke, deny an application to renew or attach conditions to a certificate of approval issued under subsection (3)(a) of this section for a violation of any provision of this section or ORS 420.892 or of the rules adopted under ORS 420.892.

(b) A person whose certificate of approval is revoked, not renewed or is made subject to conditions by a decision of the youth authority under paragraph (a) of this subsection may appeal the decision to the Court of Appeals in the manner provided in ORS 183.480 for the review of orders in contested cases.

SECTION 3. ORS 420.825 is amended to read:

420.825. Any child placed pursuant to ORS 420.810 to 420.840 may on order of the Director of Human Services or the authorized representative of the director be [returned to a youth correction facility or] replaced, if in the opinion of the director or the authorized representative of the director the child would benefit by removal from the foster home.

SECTION 4. ORS 30.297 is amended to read:

30.297. (1) Notwithstanding ORS 125.235, the Department of Human Services is liable for damages resulting from the intentional torts of a foster child who is residing in:

(a) A foster home that has been certified by the department under the provisions of ORS 418.625 to 418.645, even though the child is temporarily absent from that home;

(b) An approved home that is receiving payment from the department under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815, even though the child is temporarily absent from that home; or

(c) A developmental disability child foster home that has been certified by the department under the provisions of ORS 443.830 and 443.835, even though the foster child is temporarily absent from that home.

(2) Notwithstanding ORS 125.235, the Oregon Youth Authority is liable for damages resulting from the intentional torts of a youth offender who is residing in a youth offender foster home that has been certified by the authority under the provisions of ORS 420.888 to 420.892, even though the youth offender is temporarily absent from that home.

(3) Except as otherwise provided in this section, the liability of the department and the authority under this section is subject to the same requirements and limitations provided in ORS 30.260 to 30.300, and a claim under this section shall be treated as a claim for damages within the scope of ORS 30.260 to 30.300 for the purposes of ORS 278.120.

(4) Notwithstanding subsections (1) and (2) of this section:

(a) The department and the authority are not liable for any damages arising out of the operation of a motor vehicle by a foster child or youth offender; and

(b) The department and the authority are only liable for theft by a foster child or youth offender upon a showing by clear and convincing evidence that the foster child or youth offender committed the theft.

(5) For the purposes of this section:

(a) “Authority” means the Oregon Youth Authority.

(b) “Department” means the Department of Human Services.

(A) A minor child under the custody or guardianship of the department by reason of appointment pursuant to ORS chapter 125, 419A, 419B or 419C;

(B) A minor child under the physical custody of the department pursuant to a voluntary agreement with the parent under ORS 418.015 (1);

(C) A minor child placed in a certified foster home, pending hearing, by any person authorized by the department to make that placement;

(D) A person under 21 years of age who has been placed in an approved home that is receiving payment from the department under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815; or

(E) A child residing in a developmental disability child foster home certified under ORS 443.830 and 443.835.

(d) “Youth offender” has the meaning given in ORS [420.888] 419A.004.

SECTION 5. ORS 30.298 is amended to read:

30.298. (1) Except as otherwise provided in this section, the Department of Human Services is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a foster child if the foster child is residing in:

(a) A foster home that is maintained by the foster parents and that has been certified by the department under the provisions of ORS 418.625 to 418.645;

(b) An approved home that is maintained by the foster parents and that is receiving payment from the department under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815; or

(c) A developmental disability child foster home that has been certified by the department under the provisions of ORS 443.830 and 443.835.

(2) Except as otherwise provided in this section, the Oregon Youth Authority is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a youth offender if the youth offender resides in a youth offender foster home that is maintained by the foster parents and that has been certified by the authority under the provisions of ORS 420.888 to 420.892.

(3) Except as otherwise provided in this section, the liability of the department and of the authority under this section is subject to the same requirements and limitations provided in ORS 30.260 to 30.300, and a claim under this section shall be treated as a claim for damages within the scope of ORS 30.260 to 30.300 for the purposes of ORS 278.120.

(4) Notwithstanding ORS 30.260 to 30.300:

(a) In no event shall the liability of the department or the authority under this section exceed $5,000 for any number of claims arising out of a single occurrence;

(b) The liability of the department and the authority under this section is limited to economic damages, and in no event shall the department or the authority be liable for noneconomic damages;

(c) The department and the authority are liable under this section only to the extent the loss is not covered by other insurance; and

(d) No claim shall be allowed under this section unless written notice of the claim is delivered to the Oregon Department of Administrative Services within 90 days after the alleged loss or injury.

(5) The department and the authority are not liable under this section for:

(a) Damage to or destruction of currency, securities or any other intangible property;

(b) The unexplained disappearance of any property; or

(6) In no event does the liability of the department or the authority under this section for damage to property exceed the difference between the fair market value of the property immediately before its damage or destruction and its fair market value immediately thereafter. The department and the authority are not liable for the costs of any betterments to the property that may be required by code, statute or other law as a condition of repair, replacement or reconstruction.

(7) The liability imposed under this section is in addition to that imposed for the intentional torts of a foster child or youth offender under ORS 30.297, but any amounts paid under this section shall reduce any recovery that may be made under ORS 30.297.

(8) For the purposes of this section:

(a) “Authority” means the Oregon Youth Authority.

(b) “Department” means the Department of Human Services.

(d) “Foster child” has that meaning given in ORS 30.297.

(e) “Youth offender” has the meaning given in ORS [420.888] 419A.004.

SECTION 6. This 2005 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2005 Act takes effect on its passage.

Approved by the Governor June 29, 2005

Filed in the office of Secretary of State June 29, 2005

Effective date June 29, 2005

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