Chapter 671 Oregon Laws 2005

AN ACT

SB 106

Relating to abuse of vulnerable persons; creating new provisions; amending ORS 124.005, 124.010, 124.015, 124.020, 124.024, 124.050, 124.075, 181.586 and 181.588; and declaring an emergency.

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

SECTION 1. ORS 124.005 is amended to read:

124.005. As used in ORS 124.005 to 124.040:

(1) “Abuse” means one or more of the following:

(a) Any physical injury caused by other than accidental means, or that appears to be at variance with the explanation given of the injury.

(b) Neglect that leads to physical harm through withholding of services necessary to maintain health and well-being.

(c) Abandonment, including desertion or willful forsaking of an elderly person or a person with disabilities or the withdrawal or neglect of duties and obligations owed an elderly person or a person with disabilities by a caregiver or other person.

(d) Willful infliction of physical pain or injury.

(e) Use of derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to threaten significant physical or emotional harm to the elderly person or person with disabilities.

(f) Causing any sweepstakes promotion to be mailed to an elderly person or a person with disabilities who had received sweepstakes promotional material in the United States mail, spent more than $500 in the preceding year on any sweepstakes promotions, or any combination of sweepstakes promotions from the same service, regardless of the identities of the originators of the sweepstakes promotion and who represented to the court that the person felt the need for the court’s assistance to prevent the person from incurring further expense.

(g) Wrongfully taking or appropriating money or property, or knowingly subjecting an elderly person or person with disabilities to alarm by conveying a threat to wrongfully take or appropriate money or property, which threat reasonably would be expected to cause the elderly person or person with disabilities to believe that the threat will be carried out.

(h) Sexual contact with a nonconsenting elderly person or person with disabilities or with an elderly person or person with disabilities considered incapable of consenting to a sexual act as described in ORS 163.315. As used in this paragraph, “sexual contact” has the meaning given that term in ORS 163.305.

(2) “Elderly person” means any person 65 years of age or older who is not subject to the provisions of ORS 441.640 to 441.665.

(3) “Guardian petitioner” means a guardian or guardian ad litem for an elderly person or a person with disabilities who files a petition under ORS 124.005 to 124.040 on behalf of the elderly person or person with disabilities.

(4) “Interfere” means to interpose in a way that hinders or impedes.

(5) “Intimidate” means to compel or deter conduct by a threat.

(6) “Menace” means to act in a threatening manner.

(7) “Molest” means to annoy, disturb or persecute with hostile intent or injurious effect.

(8) “Person with disabilities” means a person described in:

(a) [ORS 410.040 (5) if the person meets a criterion listed in] ORS 410.040 (5)(b); or

(b) ORS 410.715.

(9) “Petitioner” means an elderly person or a person with disabilities who files a petition under ORS 124.005 to 124.040.

(10) “Sweepstakes” means:

(a) A procedure for awarding a prize that is based on chance;

(b) A procedure in which a person is required to purchase anything, pay anything of value or make a donation as a condition of winning a prize or of receiving or obtaining information about a prize; or

(c) A procedure that is advertised in a way that creates a reasonable impression that a payment of anything of value, purchase of anything or making a donation is a condition of winning a prize or receiving or obtaining information about a prize.

(11) “Sweepstakes promotion” means an offer to participate in a sweepstakes.

SECTION 2. ORS 124.010 is amended to read:

124.010. (1)(a) Except as provided in subsection (8) of this section, an elderly person or a person with disabilities who has been the victim of abuse within the preceding 180 days or a guardian or guardian ad litem of an elderly person or a person with disabilities who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 124.005 to 124.040, if the elderly person or person with disabilities is in immediate and present danger of further abuse from the abuser.

(b) The elderly person or person with disabilities or the guardian or guardian ad litem of the elderly person or person with disabilities may seek relief by filing a petition with the circuit court alleging that the elderly person or person with disabilities is in immediate and present danger of further abuse from the respondent, alleging that the elderly person or person with disabilities has been the victim of abuse committed by the respondent within the 180 days preceding the filing of the petition and describing the nature of the abuse and the approximate dates thereof. The abuse must have occurred not more than 180 days before the filing of the petition.

(c) A petitioner or guardian petitioner is not required to provide in the petition information regarding the relationship between the elderly person or person with disabilities and the respondent.

(d) Allegations in the petition must be made under oath or affirmation. The circuit court has jurisdiction over all proceedings under ORS 124.005 to 124.040.

(2) The petitioner or guardian petitioner has the burden of proving a claim under ORS 124.005 to 124.040 by a preponderance of the evidence.

(3) The right to petition for relief under ORS 124.005 to 124.040 is not affected by the fact that the elderly person or person with disabilities has left the residence or household to avoid abuse.

(4) A petition filed under ORS 124.005 to 124.040 must disclose the existence of any Elderly Persons and Persons With Disabilities Abuse Prevention Act proceedings, any Abuse Prevention Act proceedings, [or] any marital annulment, dissolution or separation proceedings pending between the parties or any protective proceedings under ORS chapter 125.

(5) Upon the filing of a petition under ORS 124.005 to 124.040, the clerk of the court shall give the petitioner or guardian petitioner information provided by the Department of Human Services about local adult protective services, domestic violence shelters and local legal services available.

(6) For purposes of computing the 180-day period in this section and ORS 124.020, any time during which the respondent is incarcerated or has a principal residence more than 100 miles from the principal residence of the elderly person or person with disabilities is not counted as part of the 180-day period.

(7) If a guardian or guardian ad litem files a petition under this section on behalf of an elderly person or a person with disabilities, the elderly person or person with disabilities retains the right to:

(a) Contact and retain counsel;

(b) Have access to personal records;

(d) Request a hearing; and

(e) Present evidence and cross-examine witnesses at any hearing.

(8) An elderly person or a person with disabilities may not file a petition under ORS 124.005 to 124.040 against a guardian or conservator for the elderly person or the person with disabilities.

SECTION 3. ORS 124.020 is amended to read:

124.020. (1) When a petitioner or guardian petitioner files a petition under ORS 124.010, the circuit court shall hold an ex parte hearing in person or by telephone on the day the petition is filed or on the following judicial day. Upon a showing that the elderly person or person with disabilities named in the petition has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition and that there is an immediate and present danger of further abuse to the elderly person or person with disabilities, the court shall, if requested by the petitioner or guardian petitioner, order, for a period of one year or until the order is withdrawn or amended, whichever is sooner:

(a) That the respondent be required to move from the residence of the elderly person or person with disabilities, if in the sole name of the elderly person or person with disabilities or if jointly owned or rented by the elderly person or person with disabilities and the respondent, or if the parties are married to each other;

(b) That a peace officer accompany the party who is leaving or has left the parties’ residence to remove essential personal effects of the party;

(c) That the respondent be restrained from abusing, intimidating, molesting, interfering with or menacing the elderly person or person with disabilities, or attempting to abuse, intimidate, molest, interfere with or menace the elderly person or person with disabilities;

(d) That the respondent be restrained from entering, or attempting to enter, on any premises when it appears to the court that such restraint is necessary to prevent the respondent from abusing, intimidating, molesting, interfering with or menacing the elderly person or person with disabilities;

(e) That the respondent be:

(A) Restrained, effective on a date not less than 150 days from the date of the order, from mailing the elderly person or person with disabilities any sweepstakes promotion;

(B) Required to remove the elderly person or person with disabilities from the respondent’s sweepstakes promotion mailing list or place the elderly person or person with disabilities on a list of persons to whom sweepstakes promotions may not be mailed; and

(C) Required to promptly refund any payment received in any form from the elderly person or person with disabilities after the date the order is entered by the court; or

(f) Except as provided in subsection (2) of this section, other relief that the court considers necessary to provide for the safety and welfare of the elderly person or person with disabilities.

(2)(a) If the court finds that the elderly person or person with disabilities has been the victim of abuse as defined in ORS 124.005 (1)(g), the court may order only relief that the court considers necessary to prevent or remedy the wrongful taking or appropriation of the money or property of the elderly person or person with disabilities, including but not limited to:

(A) Directing the respondent to refrain from exercising control over the money or property of the elderly person or person with disabilities;

(B) Requiring the respondent to return custody or control of the money or property of the elderly person or person with disabilities to the elderly person or person with disabilities;

(C) Requiring the respondent to follow the instructions of the guardian or conservator of the elderly person or person with disabilities; or

(D) Prohibiting the respondent from transferring the money or property of the elderly person or person with disabilities to any person other than the elderly person or person with disabilities.

(b) The court may not use a restraining order issued under ORS 124.005 to 124.040:

(A) To allow any person other than the elderly person or person with disabilities to assume responsibility for managing any of the money or property of the elderly person or person with disabilities; or

(B) For relief that is more appropriately obtained in a protective proceeding filed under ORS chapter 125 including, but not limited to, giving control and management of the financial accounts or property of the elderly person or person with disabilities for any purpose other than the relief granted under paragraph (a) of this subsection.

[(2)] (3) The showing required under subsection (1) of this section may be made by testimony of:

(a) The elderly person or person with disabilities;

(b) The guardian or guardian ad litem of the elderly person or person with disabilities;

(d) Adult protective services workers who have conducted an investigation.

[(3)] (4) Immediate and present danger under this section includes but is not limited to situations in which the respondent has recently threatened the elderly person or person with disabilities with additional abuse.

[(4)] (5) When a guardian petitioner files a petition on behalf of an elderly person or a person with disabilities, the guardian petitioner shall provide information about the elderly person or person with disabilities and not about the guardian petitioner where the petition, order or related forms described in subsection [(5)] (6) of this section require information about the petitioner.

[(5)] (6) An instruction brochure shall be available from the clerk of the court explaining the rights set forth under ORS 124.005 to 124.040. The petition, order and related forms shall be available from the clerk of the court and shall be in substantially the following form:

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON FOR

THE COUNTY OF ________

____________, ) PETITION FOR

Petitioner ) RESTRAINING ORDER

(your name) ) TO PREVENT ABUSE

) OF ELDERLY

) PERSONS OR

) PERSONS WITH

vs. ) DISABILITIES

)

) NO. ___

____________, )

Respondent )

(person to be )

restrained) )

YOU MUST PROVIDE COMPLETE AND TRUTHFUL INFORMATION. IF YOU DO NOT, THE COURT MAY DISMISS ANY RESTRAINING ORDER AND MAY ALSO HOLD YOU IN CONTEMPT OF COURT.

If you wish to have your residential address or telephone number withheld from respondent, use a contact address and telephone number so the Court and the Sheriff can reach you if necessary.

ATTACH ADDITIONAL PAGES

IF NECESSARY.

I am the Petitioner and I state that the following information is true:

I am a resident of ___________ County, Oregon.

Respondent is a resident of _________ County, Oregon.

I am either 65 years of age or older (I am ____ years of age) or I am a person with disabilities (CIRCLE THE ONE THAT DESCRIBES YOU).

1. CHECK AND FILL OUT ANY SECTION(S) that apply to you and respondent:

__ A. Respondent and I have been living together since ____, __(year).

__ B. Respondent and I lived together from ____, __ (year), to_____, __(year).

__ C. I have been under the care of respondent since ____, __(year).

__ D. I was under the care of respondent from ____, __ (year), to_____, __(year).

__ E. Respondent has sent me sweepstakes promotions.

__ F. None of the above.

2. To qualify for a restraining order, respondent must have done one or more of the following:

Within the last 180 days, respondent has:

__ A. Caused me physical injury by other than accidental means.

__ B. Attempted to cause me physical injury by other than accidental means.

__ C. Placed me in fear of immediate serious physical injury.

__ D. Caused me physical harm by withholding services necessary to maintain my health and well-being.

__ E. Abandoned or deserted me by withdrawing or neglecting to perform duties and obligations.

__ F. Used derogatory or inappropriate names, phrases or profanity, ridicule, harassment, coercion, threats, cursing, intimidation or inappropriate sexual comments or conduct of such a nature as to place me in fear of significant physical or emotional harm.

__ G. Sent me sweepstakes promotions, and I feel the need for the court’s assistance to protect me from further expense. I am an elderly person or a person with disabilities. In the past year, I spent more than $500 on sweepstakes promotions that I received in the United States mail.

__ H. Wrongfully taken or appropriated my money or property, or alarmed me by conveying a threat to me that my money or property would be wrongfully taken or appropriated, which I reasonably believed would be carried out.

__ I. Had nonconsensual sexual contact with me or sexual contact to which I was incapable of consenting.

NOTICE TO PETITIONER: Sweepstakes companies are allowed up to 150 days to stop sending you sweepstakes entry materials. For a time after the court issues a restraining order, you may receive additional solicitations from respondent. However, beginning on the date the restraining order is issued, the respondent must immediately reject any further orders from you and must return any money you send to the company after the date the restraining order is issued.

3. Any period of time after the abuse occurred during which respondent was incarcerated (in jail or prison) or lived more than 100 miles from your home is not counted as part of the 180-day period, and you may still be eligible for a restraining order.

Respondent was incarcerated from_______, __(year), to ______, __ (year).

Respondent lived more than 100 miles from my home from _____, __ (year), to_____, __(year).

4. Did the abuse happen within the last 180 days not including the times respondent was incarcerated (in jail or prison) or lived more than 100 miles from your home? Yes No

Date and location of abuse:

_______________

How did respondent injure or threaten to injure you?

_______________

5. Are there incidents other than those described in question 4 above, in which respondent injured or threatened to injure you? If yes, explain:

_______________

6. The abuse I am complaining about was witnessed by ______ (affidavit attached). Other persons with knowledge of the abuse are ______ (affidavit attached).

7. I am in immediate and present danger of further abuse by respondent because:

_______________

8. In any of the above incidents:

Were drugs, alcohol or weapons involved? Yes No

Did you need medical help? Yes No

Were the police or the courts involved? Yes No

If you have circled yes to any of the above questions, explain:

_______________

9. A. There (is) (is not) another Elderly Persons and Persons With Disabilities Abuse Prevention Act or Abuse Prevention Act proceeding pending between respondent and me. It is filed in ____ (County), ____(State), and I am (Petitioner) or (Respondent) in that case.

The case number of the case is: __________

B. There (is) (is not) another lawsuit pending between respondent and me for divorce, annulment or legal separation.

If yes, type of lawsuit: __________

It is filed in _____ (County), _____(State).

C. There (is) (is not) a protective proceeding filed in ____ (County), ____(State).

10. Respondent may be required to move from your residence if it is in your sole name, or if it is jointly owned or rented by you and respondent, or if you and respondent are married.

I (do) (do not) want respondent to move from my residence.

My residence is:

Owned Leased Rented

By: __________

PETITIONER ASKS THE COURT TO GRANT THE RELIEF INDICATED IN THE “PETITIONER’S REQUEST” COLUMN OF THE PROPOSED RESTRAINING ORDER, WHICH IS ATTACHED.

______________________________________________________________________________

PETITIONER MUST NOTIFY THE COURT

OF ANY CHANGE OF ADDRESS.

ALL NOTICES OF HEARING WILL

BE SENT TO THIS ADDRESS

AND DISMISSALS MAY BE

ENTERED IF YOU DO NOT APPEAR

AT A SCHEDULED HEARING.

If you wish to have your residential address or telephone number withheld from respondent, use a contact address and telephone number so the Court and the Sheriff can reach you if necessary.

________________

PETITIONER

STATE OF OREGON )

) ss.

County of ________ )

SUBSCRIBED AND SWORN TO before me this ___ day of _________, 2__.

______________________________

NOTARY PUBLIC FOR OREGON

My commission expires: _________

RELEVANT DATA

RESPONDENT ____________________

Sex __ Telephone # __________

Residence Address __________________

City/State/Zip _______________

County _______________

Birthdate _________ Age __

Race _________

Height _____ Weight _____

Eye Color __________

Hair Color __________

PETITIONER (you)_____________ GUARDIAN PETITIONER

Sex ___ *Telephone #__________ Name _____________

*Residence Address_____________ Address _____________

City/State/Zip_______________ _________________

County_________________ Telephone # ____________

Birthdate __________ Age ___

Race __________

Height _____ Weight _____

Eye Color __________

Hair Color __________

*If you wish to have your residential address or telephone number withheld from respondent, use a contact address and telephone number so the Court and the Sheriff can reach you if necessary.

PLEASE FILL OUT THIS INFORMATION

TO AID IN SERVICE OF

THE RESTRAINING ORDER

Where is respondent most likely to be located?

Residence Hours __________

Employment Hours __________

Address: _________

__________________

Employment Hours __________

Address: _________

__________________

Description of vehicle _____________

_________________________________

Does respondent have any weapons or access to weapons? Explain:

______________________________________________________________________________

Has respondent ever been arrested for or convicted of a violent crime? Explain:

______________________________________________________________________________

Is there anything about respondent’s character, past behavior or the present situation that indicates that respondent may be a danger to self or other? Explain:

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF ________

______, )

Petitioner )

(your name) ) RESTRAINING ORDER

) TO PREVENT ABUSE

) OF ELDERLY PERSONS

vs. ) OR PERSONS WITH

) DISABILITIES

)

) NO. _____

______, )

Respondent )

(person to be restrained) )

)

TO THE RESPONDENT:

VIOLATION OF THIS RESTRAINING ORDER

MAY RESULT IN YOUR ARREST AND IN

CIVIL AND/OR CRIMINAL PENALTIES.

REVIEW THIS ORDER CAREFULLY.

EACH PROVISION MUST BE OBEYED.

SEE YOUR RIGHTS TO A HEARING.

The Court, having reviewed the petition, makes the following findings:

Judge’s Initials

__ Petitioner been abused by respondent as defined by ORS 124.005;

__ The abuse of petitioner by respondent occurred within the last 180 days as provided in ORS 124.010;

__ There is an immediate and present danger of further abuse to petitioner.

IT IS HEREBY ORDERED that:

Petitioner’s Request Judge’s Initials

[ ] 1. Respondent is restrained (prohibited) from intimidating, ___

molesting, interfering with or menacing petitioner, or

attempting to intimidate, molest, interfere with or menace

petitioner.

[ ] 2. Respondent is restrained (prohibited) from entering, or ___

attempting to enter:

(Include names and address unless withheld for safety reasons.)

[ ] Petitioner’s residence. ___

[ ] Petitioner’s business or place of employment. ___

[ ] Petitioner’s school. ___

[ ] Other locations. ___

[ ] 3. Respondent is restrained (prohibited) from:

[ ] Contacting, or attempting to contact, petitioner by telephone. ___

[ ] Contacting, or attempting to contact, petitioner by mail. ___

[ ] 4. Respondent shall move from and not return to the re- ___

sidence located at ________ except with a

peace officer in order to remove essential personal effects

of the respondent, including, but not limited to:

clothing, toiletries, medications, Social Security cards,

birth certificates, identification and tools of the trade.

[ ] 5. A peace officer shall accompany the petitioner to the ___

parties’ residence in order to remove essential personal

effects of petitioner, including, but not limited to:

clothing, toiletries, medications, Social Security cards,

birth certificates, identification and tools of the trade.

[ ] 6. Beginning on a date not less than 150 ___

days from the date of this order, the respondent shall

not mail the petitioner any further sweepstakes promotions.

[ ] 7. Respondent shall remove the petitioner from ___

the respondent’s sweepstakes promotion mailing list or

shall place the petitioner on the respondent’s list of

persons to whom sweepstakes promotions may not be mailed.

[ ] 8. Respondent shall refund any payment received ___

in any form from the petitioner after the date

this order is entered by the court.

[ ] 9. Other relief:_______________________________ ___

________________________________________

[ ] 10. No further service is necessary because respondent ___

appeared in person before the Court.

IT IS FURTHER ORDERED that:

SECURITY AMOUNT FOR VIOLATION OF ANY PROVISION OF THIS ORDER IS $5,000 unless otherwise specified.

Other Amount ($ )

THE ABOVE PROVISIONS OF THIS RESTRAINING ORDER ARE IN EFFECT FOR

A PERIOD OF ONE YEAR OR UNTIL THE ORDER IS VACATED, MODIFIED OR

SUPERSEDED, WHICHEVER OCCURS FIRST.

DATED this ___ day of __________, 2__.

______________________________

CIRCUIT COURT JUDGE (signature)

______________________________

CIRCUIT COURT JUDGE (printed)

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF ___________

)

__________, ) NO. ___

Petitioner, )

vs. ) AFFIDAVIT OF PROOF

__________, ) OF SERVICE

Respondent. )

)

STATE OF )

OREGON )

) ss.

County of _____ )

I am a resident of the State of Oregon. I am a competent person 18 years of age or older. I am not an attorney for or a party to this case, or an officer, director or employee of any party to this case.

On the ___ day of _________, 2__, I served the Restraining Order to Prevent Abuse of Elderly Persons or Persons With Disabilities and the Petition for Restraining Order to Prevent Abuse of Elderly Persons or Persons With Disabilities in this case personally upon the above-named respondent in ______ County by delivering to the respondent a copy of those papers, each of which was certified to be a true copy of each original.

_________________________

Signature of _____________

SUBSCRIBED AND SWORN TO before me this ___ day of _________, 2__.

_____________________________

NOTARY PUBLIC FOR OREGON

My Commission Expires: ____

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF ______

)

_________, ) NO. ___

Petitioner, )

vs. ) MOTION AND ORDER

_________, ) OF DISMISSAL

Respondent. )

)

Comes now petitioner, _____, and moves this Court for an order allowing the voluntary withdrawal and dismissal of the Restraining Order on file herein.

___________________________

Petitioner

SUBSCRIBED AND SWORN TO before me this ___ day of _________, 2__.

_____________________________

NOTARY PUBLIC FOR OREGON

My Commission Expires: ____

IT IS SO ORDERED this ___ day of _________, 2__.

___________________________

JUDGE

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF ______

_________, )

(D.O.B.___) ) NOTICE TO RESPONDENT

Petitioner, ) (Elderly Persons and

) Persons With Disabilities

) Abuse Prevention Act)

)

and ) NO. ___

)

_________, )

(D.O.B.___) )

Respondent. )

THIS FORM MUST BE

ATTACHED TO SERVICE COPY

OF RESTRAINING ORDER

TO RESPONDENT: A TEMPORARY RESTRAINING ORDER HAS BEEN ISSUED BY THE COURT WHICH AFFECTS YOUR RIGHTS AND IS NOW IN EFFECT. THIS ORDER BECOMES EFFECTIVE IMMEDIATELY. IF YOU WISH TO CONTEST THE CONTINUATION OF THIS ORDER, YOU MUST COMPLETE THIS FORM AND MAIL OR DELIVER IT TO:

REQUESTS FOR HEARING MUST BE MADE WITHIN 30 DAYS AFTER YOU RECEIVE THE ORDER. YOU MUST INCLUDE YOUR ADDRESS AND TELEPHONE NUMBER WITH YOUR REQUEST FOR A HEARING. THE HEARING WILL BE HELD WITHIN 21 DAYS. AT THE HEARING, A JUDGE WILL DECIDE WHETHER THE ORDER SHOULD BE CANCELED OR CHANGED. THE ONLY PURPOSE OF THIS HEARING WILL BE TO DETERMINE IF THE TERMS OF THE COURT’S TEMPORARY ORDER SHOULD BE CANCELED, CHANGED OR EXTENDED.

Keep in mind that this order remains in effect until the court that issued the order modifies or dismisses it. If you are arrested for violating this order, the security amount (bail) is $5,000, unless a different amount is ordered by the court. Violation of this order constitutes contempt of court and is punishable by a fine of up to $500 or one percent of your annual gross income, whichever is greater, a jail term of up to six months, or both. Other sanctions may be imposed.

______________________________________________________________________________

REQUEST FOR HEARING

I am the Respondent in the above-referenced action and I request a hearing to contest all or part of the order as follows (mark one or more):

__ The order restraining me from contacting, or attempting to contact, the petitioner.

__ Other _______________

I (will) (will not) be represented by an attorney at the hearing.

Notice of the time and place of the hearing can be mailed to me at the address below my signature.

Date: _______________

______________________________

SIGNATURE OF RESPONDENT

______________________________

ADDRESS

______________________________

TELEPHONE NUMBER

______________________________________________________________________________

[(6)] (7) If the court orders relief:

(a) The clerk of the court shall provide without charge the number of certified true copies of the petition and order necessary to effect service and shall have a true copy of the petition and order delivered to the county sheriff for service upon the respondent, unless the court finds that further service is unnecessary because the respondent appeared in person before the court.

(b) The county sheriff shall serve the respondent personally unless the petitioner or guardian petitioner elects to have the respondent served personally by a private party or by a peace officer who is called to the scene of a domestic disturbance at which the respondent is present, and who is able to obtain a copy of the order within a reasonable amount of time. Proof of service shall be made in accordance with ORS 124.030.

(A) Personally;

(B) By mailing certified true copies of the petition and order by certified mail to the address to which the elderly person or person with disabilities would have sent the payment for goods or services promoted in the sweepstakes promotion had the elderly person or person with disabilities been ordering the goods or services; or

(d) No filing fee, service fee or hearing fee shall be charged for proceedings seeking only the relief provided under ORS 124.005 to 124.040.

[(7)] (8) If the county sheriff:

(a) Determines that the order and petition are incomplete, the order and petition shall be returned to the clerk of the court. The clerk of the court shall notify the petitioner or guardian petitioner, at the address provided by the petitioner or guardian petitioner, of the error or omission.

(b) After accepting the order and petition, cannot complete service within 10 days, the sheriff shall notify the petitioner or guardian petitioner, at the address provided by the petitioner or guardian petitioner, that the documents have not been served. If the petitioner or guardian petitioner does not respond within 10 days, the county sheriff shall hold the order and petition for future service and file a return to the clerk of the court showing that service was not completed.

[(8)(a)] (9)(a) Within 30 days after a restraining order is served on the respondent under this section or within 30 days after notice is served on the elderly person or person with disabilities under ORS 124.024, the respondent, elderly person or person with disabilities may request a court hearing upon any relief granted. The hearing request form shall be available from the clerk of the court and shall be in substantially the form provided in subsection [(5)] (6) of this section.

(b) If the respondent, elderly person or person with disabilities requests a hearing under paragraph (a) of this subsection, the clerk of the court shall notify the petitioner or guardian petitioner of the date and time of such hearing, and shall supply the petitioner or guardian petitioner with a copy of the request for a hearing. The petitioner or guardian petitioner shall give to the clerk of the court information sufficient to allow such notification.

(c) The hearing is not limited to the issues raised in the request for hearing form and may include testimony from witnesses to the abuse and adult protective services workers. The hearing may be held in person or by telephone. If the respondent, elderly person or person with disabilities seeks to raise an issue at the hearing not previously raised in the request for hearing form, the petitioner or guardian petitioner is entitled to a reasonable continuance for the purpose of preparing a response to the issue.

(d) The court shall exercise its discretion in a manner that protects the elderly person or person with disabilities from traumatic confrontation with the respondent.

SECTION 4. ORS 124.050 is amended to read:

124.050. As used in ORS 124.050 to 124.095:

(1) “Abuse” means one or more of the following:

(a) Any physical injury caused by other than accidental means, or which appears to be at variance with the explanation given of the injury.

(b) Neglect which leads to physical harm through withholding of services necessary to maintain health and well-being.

(c) Abandonment, including desertion or willful forsaking of an elderly person or the withdrawal or neglect of duties and obligations owed an elderly person by a caretaker or other person.

(d) Willful infliction of physical pain or injury.

(e) An act that constitutes a crime under ORS 163.375, 163.405, 163.411, 163.415, 163.425, 163.427, 163.465 or 163.467.

(f) Wrongfully taking or appropriating money or property, or knowingly subjecting an elderly person or person with disabilities to alarm by conveying a threat to wrongfully take or appropriate money or property, which threat reasonably would be expected to cause the elderly person or person with disabilities to believe that the threat will be carried out.

[(2) “Department” means the Department of Human Services.]

[(3)] (2) “Elderly person” means any person 65 years of age or older who is not subject to the provisions of ORS 441.640 to 441.665.

[(4)] (3) “Law enforcement agency” means:

(a) Any city or municipal police department.

(b) Any county sheriff’s office.

(d) Any district attorney.

[(5)] (4) “Public or private official” means:

(a) Physician, naturopathic physician, osteopathic physician, chiropractor or podiatric physician and surgeon, including any intern or resident.

(b) Licensed practical nurse, registered nurse, nurse’s aide, home health aide or employee of an in-home health service.

(c) Employee of the Department of Human Services, county health department or community mental health and developmental disabilities program.

(d) Peace officer.

(e) Member of the clergy.

(f) Licensed clinical social worker.

(g) Physical, speech or occupational therapists.

(h) Senior center employee.

(i) Information and referral or outreach worker.

(j) Licensed professional counselor or licensed marriage and family therapist.

(k) Any public official who comes in contact with elderly persons in the performance of the official’s official duties.

(L) Firefighter or emergency medical technician.

SECTION 5. ORS 124.075 is amended to read:

124.075. (1) Anyone participating in good faith in the making of a report [pursuant to ORS 124.050 to 124.070] of elder abuse and who has reasonable grounds for the making [thereof,] the report shall have immunity from any civil liability that might otherwise be incurred or imposed with respect to the making or content of such report. Any such participant shall have the same immunity with respect to participating in any judicial proceeding resulting from such report.

(2) The identity of the person making the report shall be treated as confidential information and shall be disclosed only with the consent of that person or by judicial process, or as required to perform the functions under ORS 124.070.

SECTION 6. Section 7 of this 2005 Act is added to and made a part of ORS 112.455 to 112.555.

SECTION 7. ORS 112.455 to 112.555 apply to an abuser only if the decedent dies within five years after the abuser is convicted of a felony by reason of conduct that constitutes physical abuse of the decedent, as described in ORS 124.105, or financial abuse of the decedent, as described in ORS 124.110.

SECTION 8. Sections 6 and 7 of this 2005 Act become operative on the effective date of chapter 270, Oregon Laws 2005 (Enrolled House Bill 2415).

SECTION 9. ORS 124.015 is amended to read:

124.015. (1) The court shall hold a hearing within 21 days following the request, and may cancel or change any order issued under ORS 124.020 if the respondent, elderly person or person with disabilities requests a hearing pursuant to ORS 124.020 [(8)] (9).

(2) In addition to the relief granted under ORS 124.020, the court, in a hearing held pursuant to subsection (1) of this section, may:

(a) Require either party to move from any residence whose title or right to occupy such premises is held jointly by the parties; and

(b) Assess against any party reasonable attorney fees and such costs as may be incurred in the hearing.

(3)(a) If the respondent is represented by an attorney, time for the hearing may be extended for up to five days at the request of the petitioner or guardian petitioner so that the petitioner or guardian petitioner may seek representation.

(b) If the elderly person or person with disabilities is represented by an attorney, time for the hearing may be extended for up to five days at the request of the respondent or guardian petitioner so that the respondent or guardian petitioner may seek representation.

(4) The court may approve any consent agreement to bring about a cessation of abuse of the parties. However, the court may not approve a term in a consent agreement that provides for restraint of a party to the agreement unless the other party petitioned for and was granted an order under ORS 124.010. An order or consent agreement made under this section may be amended at any time and shall continue in effect for a period of one year from the date of the order issued under ORS 124.020.

(5) An order or agreement made under ORS 124.005 to 124.040 or ORS 133.310 and 133.381 may not in any manner affect title to any real property.

(6) No undertaking shall be required in any proceeding under ORS 124.005 to 124.040.

(7) Any proceeding under ORS 124.005 to 124.040 shall be in addition to and not in lieu of any other available civil or criminal remedies.

(8) Notwithstanding any right or remedy established in ORS chapter 90 or ORS 105.105 to 105.168, a petitioner or guardian petitioner may enforce an order issued under ORS 124.005 to 124.040.

SECTION 10. ORS 124.024 is amended to read:

124.024. (1) A guardian petitioner must give notice of the petition, order and related forms described in ORS 124.020 [(5)] (6) to the elderly person or person with disabilities named in the petition.

(2) The guardian petitioner must also serve on the elderly person or person with disabilities a notice that contains a statement of the rights of an elderly person or a person with disabilities as follows:

(a) The right to contact and retain counsel;

(b) The right to have access to personal records;

(d) The right to request a hearing to contest all or part of the restraining order; and

(e) The right to present evidence and cross-examine witnesses at any hearing.

(3) Notice provided under subsection (1) of this section must be similar to the notice provided to the respondent under ORS 124.020 [(5)] (6) and must contain an objection form that the elderly person or person with disabilities may complete and mail to the court.

(4) Notice under this section must be personally served on the elderly person or person with disabilities. The date of personal service must be not later than 72 hours after the court issues a restraining order under ORS 124.020.

(5) Proof of service under this section must be filed in the proceeding before the court holds a hearing under ORS 124.015.

SECTION 11. ORS 181.586 is amended to read:

181.586. (1)(a) If the State Board of Parole and Post-Prison Supervision for a person on parole or post-prison supervision or the Department of Corrections or a community corrections agency for a person on probation makes a determination that the person under its supervision is a predatory sex offender, the agency supervising the person shall notify:

(A) Anyone whom the agency determines is appropriate that the person is a predatory sex offender; and

(B) A long term care facility, as defined in ORS 442.015, or a residential care facility, as defined in ORS 443.400, that the person is a predatory sex offender if the agency knows that the person is seeking admission to the facility.

(b) When a predatory sex offender has been subsequently convicted of another crime and is on supervision for that crime, the agency supervising the person, regardless of the nature of the crime for which the person is being supervised:

(A) May notify anyone whom the agency determines is appropriate that the person is a predatory sex offender; and

(B) Shall notify a long term care facility, as defined in ORS 442.015, or a residential care facility, as defined in ORS 443.400, that the person is a predatory sex offender if the agency knows that the person is seeking admission to the facility[, regardless of the nature of the crime for which the person is being supervised].

(2) In making a determination under subsection (1) of this section, the agency shall consider notifying:

(a) The person’s family;

(b) The person’s sponsor;

(c) Residential neighbors and churches, community parks, schools, convenience stores, businesses and other places that children or other potential victims may frequent; and

(d) Any prior victim of the offender.

(3) When an agency determines that notification is necessary, the agency may use any method of communication that the agency determines is appropriate. The notification:

(a) May include, but is not limited to, distribution of the following information:

[(a)] (A) The person’s name and address;

[(b)] (B) A physical description of the person including, but not limited to, the person’s age, height, weight and eye and hair color;

[(c)] (C) The type of vehicle that the person is known to drive;

[(d)] (D) Any conditions or restrictions upon the person’s probation, parole, post-prison supervision or conditional release;

[(e)] (E) A description of the person’s primary and secondary targets;

[(f)] (F) A description of the person’s method of offense;

[(g)] (G) A current photograph of the person; and

[(h)] (H) The name or telephone number of the person’s parole and probation officer.

(b) Shall include, if the notification is required under subsection (1)(a)(B) or (b)(B) of this section, the information described in paragraph (a)(D), (F) and (H) of this subsection.

(4) Not later than 10 days after making its determination that a person is a predatory sex offender, the agency supervising the person shall:

(a) Notify the Department of State Police of the person’s status as a predatory sex offender;

(b) Enter into the Law Enforcement Data System the fact that the person is a predatory sex offender; and

(c) Send to the Department of State Police, by electronic or other means, all of the information listed in subsection (3) of this section that is available.

(5) When the Department of State Police receives information regarding a person under subsection (4) of this section, the Department of State Police, upon request, may make the information available to the public.

(6) Upon termination of its supervision of a person determined to be a predatory sex offender, the agency supervising the person shall:

(a) Notify the Department of State Police:

(A) Of the person’s status as a predatory sex offender;

(B) Whether the agency made a notification regarding the person under this section; and

(b) Send to the Department of State Police, by electronic or other means, the documents relied upon in determining that the person is a predatory sex offender and in establishing the person’s level of supervision.

(7) The agency supervising a person determined to be a predatory sex offender shall verify the residence address of the person every 90 days.

SECTION 12. ORS 181.588 is amended to read:

181.588. (1) Notwithstanding any other provision of law, when a person who has been under supervision by the Department of Corrections or a community corrections agency is no longer under supervision, the Department of State Police, the chief of police of a city police department or a county sheriff may notify the public that the person is a predatory sex offender if:

(a) While the person was under supervision, the person was determined to be a predatory sex offender as provided in ORS 181.585 and notification under ORS 181.586 was made to someone other than the person’s family; and

(b) The person’s last primary supervising authority has notified the Department of State Police that the person was under a high level of supervision at the termination of the person’s most recent period of supervision.

(2) The Department of State Police, the chief of police of a city police department or a county sheriff may notify the public that a person is a predatory sex offender if:

(a) The Department of State Police, the chief of police or the county sheriff determines that the person is a predatory sex offender as provided in ORS 181.585; and

(b) The person was not under supervision in this state or for some other reason was not subject to a determination under ORS 181.586.

(3) When the circumstances authorizing notification to the public of a person’s status as a predatory sex offender under subsection (1) or (2) of this section exist, the Department of State Police, chief of police or county sheriff shall notify a long term care facility, as defined in ORS 442.015, or a residential care facility, as defined in ORS 443.400, that the person is a predatory sex offender if the department, chief of police or county sheriff knows that the person is seeking admission to the facility.

[(3)] (4) Notification under subsection (1), [or] (2) or (3) of this section may include distribution of any information listed in ORS 181.586 (3)(a). Notification under subsection (3) of this section shall include distribution of the information listed in ORS 181.586 (3)(b).

SECTION 13. (1) As used in this section:

(a) “Area agency” has the meaning given that term in ORS 410.040.

(b) “Long term care facility” has the meaning given that term in ORS 442.015.

(c) “Move from a long term care facility” has the meaning given that term in ORS 441.357.

(d) “Residential care facility” has the meaning given that term in ORS 443.400.

(2) If the Department of Human Services or an area agency knows that a person who is on probation, parole or post-prison supervision after being convicted of a sex crime, as defined in ORS 181.594, is applying for admission to a long term care facility or a residential care facility, the department or area agency shall notify the facility of the person’s status as a sex offender.

(3) When a person who is on probation, parole or post-prison supervision after being convicted of a sex crime, as defined in ORS 181.594, applies for admission to a long term care facility or a residential care facility, the person shall notify the facility of the person’s status as a sex offender.

(4) A long term care facility or a residential care facility may refuse admission to a person who is on probation, parole or post-prison supervision after being convicted of a sex crime, as defined in ORS 181.594.

(5) Notwithstanding ORS 441.362 and 441.605 (4), the department may move a resident from a long term care facility without providing 30 days’ written notice to the resident if the department or area agency learns that the resident is on probation, parole or post-prison supervision after being convicted of a sex crime, as defined in ORS 181.594. The department shall give the resident a copy of a written notice containing information about the resident’s right to a hearing in accordance with ORS chapter 183 and the grounds for contesting the move at the time the department moves the resident.

(6)(a) Notwithstanding ORS 441.605 (4), a long term care facility may transfer or discharge a resident without reasonable advance notice of the transfer or discharge if:

(A) The facility was not notified prior to admission of the resident that the resident is on probation, parole or post-prison supervision after being convicted of a sex crime, as defined in ORS 181.594;

(B) The facility learns that the resident is on probation, parole or post-prison supervision after being convicted of a sex crime, as defined in ORS 181.594; and

(C) The resident meets the criteria established by the department by rule for transfer or discharge under this subsection.

(b) The facility shall give the resident a copy of a written notice containing information about the resident’s right to a hearing in accordance with ORS chapter 183 and the grounds for contesting the move at the time the facility transfers or discharges the resident.

(7)(a) A residential care facility may transfer or discharge a resident without reasonable advance notice of the transfer or discharge if:

(B) The facility learns that the resident is on probation, parole or post-prison supervision after being convicted of a sex crime, as defined in ORS 181.594; and

(C) The resident meets the criteria established by the department by rule for transfer or discharge under this subsection.

(8) If a resident requests a hearing under subsection (5), (6) or (7) of this section, the hearing must be held within five business days of the move, transfer or discharge of the resident.

(9) The department shall establish the criteria required by subsections (6)(a)(C) and (7)(a)(C) of this section so that application of the criteria results in the identification of only those persons who present a current risk of harm to another person within the facility.

SECTION 14. (1) Section 13 of this 2005 Act and the amendments to ORS 181.586 and 181.588 by sections 11 and 12 of this 2005 Act become operative on January 1, 2006.

(2) The amendments to ORS 181.586 and 181.588 by sections 11 and 12 of this 2005 Act apply to persons determined to be predatory sex offenders before, on or after January 1, 2006.

(3) Section 13 of this 2005 Act applies to persons applying for admission to a long term care facility or a residential care facility on or after January 1, 2006.

SECTION 15. The Department of Human Services may take any action before January 1, 2006, that is necessary to enable the department to exercise, on or after January 1, 2006, the duties, powers and functions of the department pursuant to section 13 of this 2005 Act.

SECTION 16. Section 13 of this 2005 Act is repealed on January 2, 2010.

SECTION 17. 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 July 29, 2005

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

Effective date July 29, 2005

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