73rd OREGON LEGISLATIVE ASSEMBLY--2005 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 1143
 
                         Senate Bill 234
 
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 Joint Interim Committee on
  Judiciary for Oregon Law Commission)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Modifies provisions relating to putative fathers in adoption,
juvenile court and other court proceedings. Modifies provisions
relating to establishment of paternity.
 
                        A BILL FOR AN ACT
Relating to paternity; amending ORS 109.070, 109.096, 109.098,
  419A.004, 419B.839 and 419B.875.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 419A.004 is amended to read:
  419A.004. As used in this chapter and ORS chapters 419B and
419C, unless the context requires otherwise:
  (1) 'CASA Volunteer Program' means a program approved or
sanctioned by the juvenile court to recruit, train and supervise
volunteer persons to serve as court appointed special advocates.
  (2) 'Child care center' means a residential facility for wards
or youth offenders that is licensed under the provisions of ORS
418.240.
  (3) 'Community service' has the meaning given that term in ORS
137.126.
  (4) 'Conflict of interest' means a person appointed to a local
citizen review board who has a personal or pecuniary interest in
a case being reviewed by that board.
  (5) 'Counselor' means a juvenile department counselor.
  (6) 'Court' means the juvenile court.
  (7) 'Court appointed special advocate' or 'CASA' means a person
appointed by the court pursuant to a CASA Volunteer Program to
act as special advocate pursuant to ORS 419A.170.
  (8) 'Court facility' has the meaning given that term in ORS
166.360.
  (9) 'Department' means the Department of Human Services.
  (10) 'Detention' or 'detention facility' means a facility
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063 for the detention of children, wards, youths or youth
offenders pursuant to a judicial commitment or order.
  (11) 'Director' means the director of a juvenile department
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063.
  (12) 'Guardian' means guardian of the person and not guardian
of the estate.
  (13) 'Indian child' means any unmarried person less than 18
years of age who is:
  (a) A member of an Indian tribe; or
  (b) Eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.
  (14) 'Juvenile court' means the court having jurisdiction of
juvenile matters in the several counties of this state.
  (15) 'Local citizen review board' means the board specified by
ORS 419A.090 and 419A.092.
  (16) 'Parent' means the biological or adoptive mother and the
legal   { - or adoptive - }  father of the child, ward, youth or
youth offender. A legal father   { - includes: - }
    { - (a) A nonimpotent, nonsterile man who was cohabiting with
his wife, who is the mother of the child, ward, youth or youth
offender, at the time of conception; - }
    { - (b) A man married to the mother of the child, ward, youth
or youth offender at the time of birth, when there is no judgment
of separation and the presumption of paternity has not been
disputed; - }
    { - (c) A biological father who marries the mother of the
child, ward, youth or youth offender after the birth of the
child, ward, youth or youth offender; - }
    { - (d) A biological father who has established or declared
paternity through filiation proceedings or under ORS 416.400 to
416.470; and - }
    { - (e) A biological father who has, with the mother,
established paternity through a voluntary acknowledgment of
paternity under ORS 109.070 - }  { +  is a man who has adopted
the child, ward, youth or youth offender or whose paternity has
been established or declared under ORS 109.070 or 416.400 to
416.470 or by a juvenile court + }.
  (17) 'Permanent foster care' means an out-of-home placement in
which there is a long-term contractual foster care agreement
between the foster parents and the department that is approved by
the juvenile court and in which the foster parents commit to
raise a ward in substitute care or youth offender until the age
of majority.
  (18) 'Planned permanent living arrangement' means an
out-of-home placement other than by adoption, placement with a
relative or placement with a legal guardian that is consistent
with the case plan and in the best interests of the ward.
  (19) 'Public building' has the meaning given that term in ORS
166.360.
  (20) 'Reasonable time' means a period of time that is
reasonable given a child or ward's emotional and developmental
needs and ability to form and maintain lasting attachments.
  (21) 'Records' means any information in written form, pictures,
photographs, charts, graphs, recordings or documents pertaining
to a case.
  (22) 'Resides' or 'residence,' when used in reference to the
residence of a child, ward, youth or youth offender, means the
place where the child, ward, youth or youth offender is actually
living or the jurisdiction in which wardship or jurisdiction has
been established.
  (23) 'Restitution' has the meaning given that term in ORS
137.103.
  (24) 'Serious physical injury' means:
  (a) A serious physical injury as defined in ORS 161.015; or
  (b) A physical injury that:
  (A) Has a permanent or protracted significant effect on a
child's daily activities;
  (B) Results in substantial and recurring pain; or
  (C) In the case of a child under 10 years of age, is a broken
bone.
  (25) 'Shelter care' means a home or other facility suitable for
the safekeeping of a child, ward, youth or youth offender who is
taken into temporary custody pending investigation and
disposition.
  (26) 'Short-term detention facility' means a facility
established under ORS 419A.050 (3) for holding children, youths
and youth offenders pending further placement.
  (27) 'Substitute care' means an out-of-home placement directly
supervised by the department or other agency, including placement
in a foster family home, group home or other child caring
institution or facility. 'Substitute care' does not include care
in:
  (a) A detention facility, forestry camp or youth correction
facility;
  (b) A family home that the court has approved as a ward's
permanent placement, when a private child caring agency has been
appointed guardian of the ward and when the ward's care is
entirely privately financed; or
  (c) In-home placement subject to conditions or limitations.
  (28) 'Surrogate' means a person appointed by the court to
protect the right of the child, ward, youth or youth offender to
receive procedural safeguards with respect to the provision of
free appropriate public education.
  (29) 'Tribal court' means a court with jurisdiction over child
custody proceedings and that is either a Court of Indian
Offenses, a court established and operated under the code of
custom of an Indian tribe or any other administrative body of a
tribe that is vested with authority over child custody
proceedings.
  (30) 'Ward' means a person within the jurisdiction of the
juvenile court under ORS 419B.100.
  (31) 'Youth' means a person under 18 years of age who is
alleged to have committed an act that is a violation, or, if done
by an adult would constitute a violation, of a law or ordinance
of the United States or a state, county or city.
  (32) 'Youth care center' has the meaning given that term in ORS
420.855.
  (33) 'Youth offender' means a person who has been found to be
within the jurisdiction of the juvenile court under ORS 419C.005
for an act committed when the person was under 18 years of age.
  SECTION 2. ORS 419B.839 is amended to read:
  419B.839. (1) Summons in proceedings to establish jurisdiction
under ORS 419B.100 must be served on:
  (a) The   { - legal - }  parents of the child without regard to
who has legal or physical custody of the child;
  (b) The legal guardian of the child;
  (c) A putative father of the child   { - if he has provided or
offered to provide for the physical, emotional, custodial or
financial needs of the child in the previous six months or was
prevented from doing so by the mother of the child; - }  { +  who
has demonstrated a direct and significant commitment to the child
by assuming responsibilities normally associated with parenthood,
including but not limited to:
  (A) Residing with the child;
  (B) Contributing to or attempting to contribute to the
financial support of the child; or
  (C) Establishing psychological ties with the child;
  (d) A putative father of the child if notice of the initiation
of filiation proceedings as required by ORS 109.225 was on file
with the Center for Health Statistics of the Department of Human
Services prior to the initiation of the juvenile court
proceedings; + }
    { - (d) - }  { +  (e) + } The person who has physical custody
of the child, if the child is not in the physical custody of a
parent; and
 
    { - (e) - }  { +  (f) + } The child, if the child is 12 years
of age or older.
  (2) If it appears to the court that the welfare of the child or
of the public requires that the child immediately be taken into
custody, the court may indorse an order on the summons directing
the officer serving it to take the child into custody.
  (3) Summons may be issued requiring the appearance of any
person whose presence the court deems necessary.
   { +  (4) Summons under subsection (1) of this section is not
required to be given to a putative father who was a party to
filiation proceedings under ORS 109.125 that were dismissed or
resulted in a finding that he was not the father of the
child. + }
  SECTION 3. ORS 419B.875 is amended to read:
  419B.875. (1) Parties to proceedings in the juvenile court
under ORS 419B.100 and, except as provided in paragraph (h) of
this subsection, under ORS 419B.500 are:
  (a) The child or ward;
  (b) The   { - legal - }  parents or guardian of the child or
ward;
  (c) A putative father of the child or ward   { - if he has
provided or offered to provide for the physical, emotional,
custodial or financial needs of the child or ward in the previous
six months or was prevented from doing so by the mother of the
child or ward; - }  { +  who has demonstrated a direct and
significant commitment to the child by assuming responsibilities
normally associated with parenthood, including but not limited
to:
  (A) Residing with the child;
  (B) Contributing to or attempting to contribute to the
financial support of the child; or
  (C) Establishing psychological ties with the child; + }
  (d) The state;
  (e) The juvenile department;
  (f) A court appointed special advocate, if appointed;
  (g) The Department of Human Services or other child-caring
agency if the agency has temporary custody of the child or ward;
  (h) An intervenor who is granted intervention under ORS
419B.116. An intervenor under this paragraph is not a party to a
proceeding under ORS 419B.500;
  (i) A guardian ad litem appointed under subsection (2) of this
section; and
  (j) The tribe in cases subject to the Indian Child Welfare Act
if the tribe has intervened pursuant to the Indian Child Welfare
Act.
  (2) When a court determines that a parent or guardian, due to
mental or physical disability, cannot adequately act in the
parent's or guardian's interests or give direction to the
parent's or guardian's counsel on decisions the parent or
guardian must make, the court shall appoint some suitable person
to act as guardian ad litem for the parent or guardian.
  (3) The rights of the parties include, but are not limited to:
  (a) The right to notice of the proceeding and copies of the
petitions, answers, motions and other papers;
  (b) The right to appear with counsel and, except for
intervenors under subsection (1)(h) of this section, to have
counsel appointed as otherwise provided by law;
  (c) The right to call witnesses, cross-examine witnesses and
participate in hearings;
  (d) The right of appeal; and
  (e) The right to request a hearing.
   { +  (4) A putative father who was a party to filiation
proceedings under ORS 109.125 that were dismissed or resulted in
a finding that he was not the father of the child is not a party
to a proceeding under ORS 419B.100 or 419B.500. + }
 
    { - (4)(a) - }  { +  (5)(a) + } A person granted rights of
limited participation under ORS 419B.116 is not a party to a
proceeding under ORS 419B.100 or 419B.500 but has only those
rights specified in the order granting rights of limited
participation.
  (b) Persons moving for or granted rights of limited
participation are not entitled to appointed counsel but may
appear with retained counsel.
    { - (5) - }  { +  (6) + } If a foster parent, preadoptive
parent or relative is currently providing care for a child or
ward, the Department of Human Services shall give the foster
parent, preadoptive parent or relative notice of a hearing
concerning the child or ward and the court shall give the person
an opportunity to be heard. Except when allowed to intervene, the
foster parent, preadoptive parent or relative providing care for
the child or ward is not considered a party to the juvenile court
proceeding solely because of notice and an opportunity to be
heard.
    { - (6) - }  { +  (7) + } When a legal grandparent of a child
or ward requests in writing and provides a mailing address, the
Department of Human Services shall give the legal grandparent
notice of a hearing concerning the child or ward and the court
shall give the legal grandparent an opportunity to be heard.
Except when allowed to intervene, a legal grandparent is not
considered a party to the juvenile court proceeding solely
because of notice and an opportunity to be heard.
    { - (7) - }  { +  (8) + } Interpreters for parties and
persons granted rights of limited participation shall be
appointed in the manner specified by ORS 45.275 and 45.285.
  SECTION 4. ORS 109.070 is amended to read:
  109.070. (1) The paternity of a person may be established as
follows:
  (a) The child of a wife cohabiting with her husband who was not
impotent or sterile at the time of the conception of the child
shall be conclusively presumed to be the child of her husband,
whether or not the marriage of the husband and wife may be void.
  (b) A child born in wedlock, there being no judgment of
separation from bed or board, shall be presumed to be the child
of the mother's husband, whether or not the marriage of the
husband and wife may be void. This shall be a disputable
presumption.
  (c) By the marriage of the parents of a child after birth of
the child.
  (d) By filiation proceedings.
  (e) By filing with the State Registrar of the Center for Health
Statistics the voluntary acknowledgment of paternity form as
provided for by ORS 432.287. Except as otherwise provided in
  { - subsection (2) - }  { +  subsections (2) to (4) + } of this
section, this filing establishes paternity for all purposes.
  (f) By having established paternity through a voluntary
acknowledgment of paternity process in another state.
  (g) By paternity being established or declared by other
provision of law.
  (2)  { - (a) - }  A party to a voluntary acknowledgment of
paternity may rescind the acknowledgment within the earlier of:
    { - (A) - }  { +  (a) + } Sixty days after filing the
voluntary acknowledgment   { - of paternity - } ; or
    { - (B) - }  { +  (b) + } The date of a proceeding relating
to the child, including a proceeding to establish a support
order, in which the party wishing to rescind the
 { + voluntary + } acknowledgment is also a party to the
proceeding. For the purposes of this   { - subparagraph - }
 { + paragraph + }, the date of a proceeding is the date on which
an order is entered in the proceeding.
 
 
    { - (b)(A) - }  { +  (3)(a) + } A signed voluntary
acknowledgment of paternity filed in this state may be
challenged { +  in circuit court + }:
    { - (i) - }  { +  (A) + } At any time after the 60-day period
on the basis of fraud, duress or material mistake of fact  { - .
The party bringing the challenge has the burden of proof. - }
 { +  by:
  (i) A party to the voluntary acknowledgment;
  (ii) The child named in the voluntary acknowledgment; or
  (iii) The Department of Human Services or the administrator, as
defined in ORS 25.010, if the child named in the voluntary
acknowledgment is in the care and custody of the department
pursuant to ORS chapter 419B and the department or administrator
has a reasonable belief that the voluntary acknowledgment was the
result of fraud, duress or material mistake of fact. + }
    { - (ii) - }  { +  (B) + } Within one year after the
voluntary acknowledgment has been filed, unless   { - the
provisions of paragraph (c) of this subsection apply - }  { +
subsection (4) of this section applies + }. No challenge to the
voluntary acknowledgment may be allowed more than one year after
the voluntary acknowledgment has been filed, unless
  { - the provisions of sub-subparagraph (i) of this subparagraph
apply - }  { +  subparagraph (A) of this paragraph applies + }.
    { - (B) - }  { +  (b) + } Legal responsibilities arising from
the voluntary acknowledgment of paternity, including child
support obligations, may not be suspended during the challenge,
except for good cause.
   { +  (c) The party bringing a challenge under this subsection
has the burden of proof. + }
    { - (c) - }  { +  (4)(a) + } No later than one year after a
voluntary acknowledgment of paternity form is filed in this state
 { - and if genetic parentage tests have not been previously
completed - } , a party to the  { + voluntary + }
acknowledgment { + , the child named in the voluntary
acknowledgment + } or the state, if child support enforcement
services are being provided under ORS 25.080, may apply to the
court or to the administrator, as defined in ORS 25.010, for an
order requiring that the parties and the child submit to genetic
parentage tests.  { + The state Child Support Program shall pay
the costs for genetic parentage tests performed under this
paragraph subject to recovery from the party who requested the
tests. + }
    { - (d) - }  { +  (b) + } If the results of the tests
 { + performed under paragraph (a) of this subsection + } exclude
the male party as a possible father of the child { +  or the
court determines under subsection (3) of this section that the
male party is not the father of the child + }, a party   { - or
the state, if child support enforcement services are being
provided under ORS 25.080, - }  { +  to the challenge + } may
apply to the court for   { - an order - }  { +  a judgment + } of
nonpaternity.  { + The party submitting the application for a
judgment of nonpaternity to the court shall send a certified true
copy of the judgment to the State Registrar of the Center for
Health Statistics and to the Department of Justice as the state
disbursement unit. + } Upon receipt of   { - an order - }  { +  a
judgment + } of nonpaternity, the   { - Director of Human
Services - }   { + State Registrar of the Center for Health
Statistics + } shall correct any records
  { - maintained by the State Registrar of the Center for Health
Statistics - }  { +  it maintains + } that indicate that the male
party is the parent of the child.
    { - (e) The state Child Support Program shall pay any costs
for genetic parentage tests subject to recovery from the party
who requested the tests. - }
 
 
   { +  (c) Support paid prior to a judgment of nonpaternity
under paragraph (b) of this subsection shall not be returned to
the payer. + }
  SECTION 5. ORS 109.096 is amended to read:
  109.096. (1) When the paternity of a child has not been
established under ORS 109.070, the putative father   { - shall
be - }  { +  is + } entitled to reasonable notice in adoption
 { - , juvenile court, - }  or other court proceedings concerning
the custody of the child { + , except for juvenile court
proceedings, + } if the petitioner knows, or by the exercise of
ordinary diligence should have known:
  (a) That the child resided with the putative father at any time
during the 60 days immediately preceding the initiation of the
proceeding, or at any time since the child's birth if the child
is less than 60 days old when the proceeding is initiated; or
  (b) That the putative father repeatedly has contributed or
tried to contribute to the support of the child during the year
immediately preceding the initiation of the proceeding, or during
the period since the child's birth if the child is less than one
year old when the proceeding is initiated.
  (2) Except as provided in subsection (3) or (4) of this
section, a verified statement of the mother of the child or of
the petitioner, or an affidavit of another person with knowledge
of the facts, filed in the proceeding and asserting that the
child has not resided with the putative father, as provided in
subsection (1)(a) of this section, and that the putative father
has not contributed or tried to contribute to the support of the
child, as provided in subsection (1)(b) of this section,
 { - shall be - }  { +  is + } sufficient proof to enable the
court to grant the relief sought without notice to the putative
father.
  (3) The putative father   { - shall be - }  { +  is + }
entitled to reasonable notice in a proceeding for the adoption of
the child if notice of the initiation of filiation proceedings as
required by ORS 109.225 was on file with the Center for Health
Statistics of the Department of Human Services prior to the
child's being placed in the physical custody of a person or
persons for the purpose of adoption by them. If the notice of the
initiation of filiation proceedings was not on file at the time
of the placement, the putative father   { - shall be - }  { +
is + } barred from contesting the adoption proceeding.
  (4) Except as otherwise provided in subsection (3) of this
section, the putative father   { - shall be - }  { +  is + }
entitled to reasonable notice in   { - juvenile court or
other - }  court proceedings  { + concerning the custody of the
child, other than juvenile court proceedings, + } if notice of
the initiation of filiation proceedings as required by ORS
109.225 was on file with the Center for Health Statistics prior
to the initiation of the   { - juvenile court or other court - }
proceedings.
  (5) Notice under this section   { - shall not be - }  { +  is
not + } required to be given to a putative father who was a party
to filiation proceedings under ORS 109.125   { - which either - }
 { +  that + } were dismissed or resulted in a finding that he
was not the father of the child.
  (6) The notice required under this section shall be given in
the manner provided in ORS 109.330.
  (7) No notice given under this section need disclose the name
of the mother of the child.
  (8) A putative father has the primary responsibility to protect
his rights, and nothing in this section shall be used to set
aside an act of a permanent nature including, but not limited to,
adoption or termination of parental rights, unless the father
establishes within one year after the entry of the final judgment
or order fraud on the part of a petitioner in the proceeding with
 
respect to matters specified in subsections (1) to (5) of this
section.
  SECTION 6. ORS 109.098 is amended to read:
  109.098. (1) If a putative father of a child by due appearance
in a proceeding of which he is entitled to notice under ORS
109.096 objects to the relief sought, the court:
  (a) May stay the adoption  { - , juvenile court - }  or other
court proceeding to await the outcome of the filiation
proceedings only if notice of the initiation of filiation
proceedings was on file as required by ORS 109.096 (3) or (4).
  (b) Shall, if filiation proceedings are not pending, inquire as
to the paternity of the child, the putative father's past
endeavors to fulfill his obligation to support the child and to
contribute to the pregnancy-related medical expenses, the period
that the child has lived with the putative father, the putative
father's fitness to care for and rear the child and whether the
putative father is willing to be declared the father of the child
and to assume the responsibilities of a father.
  (2) If after inquiry under subsection (1)(b) of this section
the court finds:
  (a) That the putative father is the father of the child and is
fit and willing to assume the responsibilities of a father, it
shall have the power:
  (A) Upon the request of the putative father, to declare his
paternity and to certify the fact of paternity in the manner
provided in ORS 109.094; and
  (B) To award custody of the child to the mother or the father
as may be in the best interests of the child, or to take any
other action which the court may take if the parents are or were
married to each other.
  (b) That the putative father is not the father of the child, it
may grant the relief sought in the proceeding without the
putative father's consent.
  (c) That the putative father is the natural father of the child
but is not fit or willing to assume the responsibilities of a
father, it may grant the relief sought in the proceeding or any
other relief that the court deems to be in the best interests of
the child, notwithstanding the father's objection.
  (3) If a putative father of a child is given the notice of a
proceeding required by ORS 109.096 and he fails to enter due
appearance and to object to the relief sought therein within the
time specified in the notice, the court may grant the relief
sought without the putative father's consent.
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