Chapter 609
AN ACT
HB 2127
Relating to victims of juvenile crime; creating new provisions; and
amending ORS 135.953, 181.607, 419A.004, 419A.256, 419A.262, 419C.097,
419C.100, 419C.106, 419C.142, 419C.145, 419C.153, 419C.173, 419C.176, 419C.230,
419C.255, 419C.261, 419C.270, 419C.450, 419C.653 and 420A.122.
Be It Enacted by the People of
the State of
SECTION 1. Sections
2 and 3 of this 2007 Act are added to and made a part of ORS chapter 419C.
SECTION 2. (1)(a)
The victim of any act alleged in a petition filed under this chapter may be
present at and, upon request, must be informed in advance of critical stages of
the proceedings held in open court when the youth or youth offender will be
present.
(b) The victim must be
informed of any constitutional rights of the victim. Except as provided in ORS
147.417, the district attorney or juvenile department must ensure that victims
are informed of their constitutional rights. If a victim requests, the district
attorney or juvenile department must support the victim in exercising the
victim’s constitutional rights.
(2)(a) The victim has
the right, upon request, to be notified in advance of or to be heard at:
(A) A detention or
shelter hearing;
(B) A hearing to review
the placement of the youth or youth offender; or
(C) A dispositional
hearing.
(b) For a release
hearing, the victim has the right:
(A) Upon request, to be
notified in advance of the hearing;
(B) To appear personally
at the hearing; and
(C) If present, to
reasonably express any views relevant to the issues before the court.
(c) Failure to notify
the victim of a hearing under this subsection or failure of the victim to
appear at the hearing does not affect the validity of the proceeding.
(3) If the victim is not
present at a critical stage of the proceeding, the court shall ask the district
attorney or juvenile department whether the victim requested to be notified of
critical stages of the proceedings. If the victim requested to be notified, the
court shall ask the district attorney or juvenile department whether the victim
was notified of the date, time and place of the hearing. The validity of the
proceeding is not affected by the failure to notify the victim of a hearing or
failure of the victim to appear at a hearing that is a critical stage of the
proceeding, including but not limited to hearings under ORS 135.953, 181.607,
419A.262, 419C.097, 419C.142, 419C.173, 419C.450, 419C.261 or 419C.653.
(4) As used in this
section:
(a) “Critical stage of
the proceeding” means a hearing that:
(A) Affects the legal
interests of the youth or youth offender;
(B) Is held in open
court; and
(C) Is conducted in the
presence of the youth or youth offender.
(b) “Critical stage of
the proceeding” includes, but is not limited to:
(A) Detention and
shelter hearings;
(B) Hearings to review
placements;
(C) Hearings to set or
change conditions of release;
(D) Hearings to transfer
proceedings or to transfer parts of proceedings;
(E) Waiver hearings;
(F) Adjudication and
plea hearings;
(G) Dispositional
hearings, including but not limited to restitution hearings;
(H) Review or
dispositional review hearings;
(I) Hearings on motions
to amend, dismiss or set aside petitions, orders or judgments;
(J) Probation violation
hearings, including probation revocation hearings, when the basis for the
alleged violation directly implicates a victim’s rights or well-being;
(K) Hearings for relief
from the duty to report under ORS 181.607; and
(L) Expunction hearings.
(5) Nothing in this section
creates a cause of action for compensation or damages. This section may not be
used to invalidate an accusatory instrument, ruling of the court or otherwise
suspend or terminate any proceeding at any point after the case is commenced or
on appeal.
SECTION 3. (1)
If a victim or witness requests, the court shall order that the address and
telephone number of the victim or witness not be given to the youth or youth
offender unless good cause is shown to the court.
(2) If contacted by the
attorney of the youth or youth offender, an agent of the youth or youth
offender, or an agent of the attorney of the youth or youth offender, a victim
must be clearly informed by the attorney or agent, either in person or in
writing:
(a) Of the identity and
capacity of the person contacting the victim;
(b) That the victim does
not have to talk to the attorney or agent, or provide other discovery unless
the victim wishes; and
(c) That the victim may
have a representative of the state present during any interview.
(3) Unless the victim
consents after receiving a full advice of rights as provided in subsection (2)
of this section, a victim may not be required to be interviewed or deposed by
or give discovery to the youth or youth offender or the attorney for the youth or
youth offender, or an agent of the attorney or youth or youth offender. This
subsection does not prohibit the youth or youth offender from:
(a) Subpoenaing or
examining the victim in a proceeding when the purpose is other than for
discovery; or
(b) Subpoenaing books,
papers or documents as provided in ORS 136.580.
(4) Any preadjudication
release order must prohibit any contact with the victim, either directly or
indirectly, unless specifically authorized by the court. This subsection does
not limit contact by the attorney for the youth or youth offender, or an agent
of the attorney, other than the youth or youth offender, in the manner set
forth in subsection (2) of this section.
(5)(a) If a victim
notifies the district attorney or juvenile department that the youth or youth
offender, by direct or indirect contact, threatened or intimidated the victim,
the district attorney or juvenile department shall notify the court and the
attorney for the youth or youth offender. If the youth or youth offender is not
in custody and the court finds there is probable cause to believe the victim
has been threatened or intimidated by the youth or youth offender, by direct or
indirect contact, the court shall immediately issue an order to show cause why
the release status should not be revoked.
(b) After conducting a
hearing as the court deems appropriate, if the court finds that the victim has
been threatened or intimidated by the youth or youth offender, by direct or
indirect contact, the release status shall be revoked and the youth or youth
offender shall be held in detention until conditions of release sufficient to
ensure the safety of the victim and the community can be implemented.
(c) In any hearing
convened under this subsection, the victim has the right to be notified in
advance of the hearing, to appear personally at the hearing and, if present, to
express any views relevant to the issues before the court.
(6) For purposes of
subsections (4) and (5) of this section, “contact” has the meaning given that
term in ORS 163.730.
SECTION 4.
ORS 135.953 is amended to read:
135.953. (1) A defendant
may participate in mediation as part of a diversion agreement under ORS 135.881
to 135.901.
(2) A court, including,
but not limited to, a justice court, may:
(a) Authorize, in a
pretrial release order, contact between a defendant and a victim as part of
mediation between the defendant and the victim;
(b) Consider mediation
as the basis of a compromise of crimes under ORS 135.703; or
(c) Include
participation in mediation as a condition of probation under ORS 137.540.
(3) A district attorney
or city attorney:
(a) May suspend
prosecution of a case referred to mediation and dismiss the charges in the
referred case if the defendant successfully completes the terms of the
agreement resulting from the mediation; or
(b) May include, with a
defendant, mediation between the defendant and the victim as part of a plea
agreement entered into under ORS 135.405.
(4) A county juvenile
department may include mediation between a child and a victim as one of the
terms of [an informal disposition]
a formal accountability agreement under ORS 419C.230 or an authorized
diversion program under ORS 419C.225.
(5) The Department of
Corrections may use mediation for the purposes of rehabilitation and treatment.
(6) Mediation may be
used in any other appropriate manner in resolving disputes involving criminal
matters.
SECTION 5.
ORS 181.607 is amended to read:
181.607. (1)(a) No
sooner than two years, but no later than five years, after the termination of
juvenile court jurisdiction over a person required to report under ORS 181.595,
181.596 or 181.597, the person may file a petition for relief from the duty to
report. The person must file the petition in the juvenile court in which the person
was adjudicated for the act that requires reporting.
(b) The juvenile court
in which a petition under this section is filed may transfer the matter to the
juvenile court of the county that last supervised the person if the court
determines that the convenience of the parties, the victim and witnesses
require the transfer.
(c) The juvenile court
has exclusive original jurisdiction in any proceeding under this section.
(d) The person, the
district attorney and the juvenile department are parties to a hearing on a
petition filed under this section.
(2) When a person files
a petition under this section and the petition was filed:
(a) No later than three
years after the termination of juvenile court jurisdiction, the state has the
burden of proving by clear and convincing evidence that the person is not
rehabilitated and continues to pose a threat to the safety of the public.
(b) More than three
years, but no later than five years, after the termination of juvenile court
jurisdiction, the person has the burden of proving by clear and convincing
evidence that the person is rehabilitated and does not pose a threat to the
safety of the public.
(3) In determining
whether the state or the person has met the burden of proof established in
subsection (2) of this section, the juvenile court may consider but need not be
limited to considering:
(a) The extent and
impact of any physical or emotional injury to the victim;
(b) The nature of the
act that subjected the person to the duty of reporting as a sex offender;
(c) Whether the person
used or threatened to use force in committing the act;
(d) Whether the act was
premeditated;
(e) Whether the person
took advantage of a position of authority or trust in committing the act;
(f) The age of any
victim at the time of the act, the age difference between any victim and the
person and the number of victims;
(g) The vulnerability of
the victim;
(h) Other acts committed
by the person that would be crimes if committed by an adult and criminal
activities engaged in by the person before and after the adjudication;
(i) Statements,
documents and recommendations by or on behalf of the victim or the parents of
the victim;
(j) The person’s
willingness to accept personal responsibility for the act and personal
accountability for the consequences of the act;
(k) The person’s ability
and efforts to pay the victim’s expenses for counseling and other
trauma-related expenses or other efforts to mitigate the effects of the act;
(L) Whether the person
has participated in and satisfactorily completed a sex offender treatment
program or any other intervention, and if so the juvenile court may also
consider:
(A) The availability,
duration and extent of the treatment activities;
(B) Reports and
recommendations from the providers of the treatment;
(C) The person’s
compliance with court or supervision requirements regarding treatment; and
(D) The quality and
thoroughness of the treatment program;
(m) The person’s
academic and employment history;
(n) The person’s use of
drugs or alcohol before and after the adjudication;
(o) The person’s history
of public or private indecency;
(p) The person’s
compliance with and success in completing the terms of supervision;
(q) The results of
psychological examinations of the person;
(r) The protection
afforded the public by the continued existence of the records; and
(s) Any other relevant
factors.
(4) In a hearing under
this section, the juvenile court may receive testimony, reports and other
evidence without regard to whether the evidence is admissible under ORS 40.010
to 40.210 and 40.310 to 40.585 if the evidence is relevant to the determination
and findings required under this section. As used in this subsection, “relevant
evidence” has the meaning given that term in ORS 40.150.
(5) When a petition is
filed under this section, the state has the right to have a psychosexual
evaluation of the person conducted. The state shall file notice with the
juvenile court of its intention to have the person evaluated. If the person
objects to the evaluator chosen by the state, the juvenile court for good cause
shown may direct the state to select a different evaluator.
(6) As soon as
practicable after a petition has been filed under this section, the district
attorney or juvenile department shall make a reasonable effort to notify
the victim of the crime that the person has filed a petition seeking relief
under this section and, if the victim has requested, to inform the victim of
the date, time and place of a hearing on the petition in advance of the hearing.
(7)(a) When a petition
has been filed under this section and the petition was filed:
(A) No later than three
years after the termination of juvenile court jurisdiction, the court shall
hold a hearing on the petition no sooner than 60 days and no later than 120
days after the date of filing.
(B) More than three
years, but no later than five years, after the termination of juvenile court
jurisdiction, the court shall hold a hearing no sooner than 90 days and no
later than 150 days after the date of filing.
(b) Notwithstanding
paragraph (a) of this subsection, upon a showing of good cause, the court may
extend the period of time in which a hearing on the petition must be held.
(8) When the state has
the burden of proof under subsection (2) of this section and proves by clear
and convincing evidence that the person is not rehabilitated and continues to
pose a threat to the safety of the public, the court shall deny the petition.
When the person has the burden of proof under subsection (2) of this section
and proves by clear and convincing evidence that the person is rehabilitated
and does not pose a threat to the safety of the public, the court shall grant
the petition.
(9) When a juvenile
court enters an order relieving a person of the requirement to report under ORS
181.595, 181.596 or 181.597, the person shall send a certified copy of the
juvenile court order to the Department of State Police.
(10) If a person commits
an act that could be charged as a sex crime listed in ORS 137.707 and the
person is 15, 16 or 17 years of age at the time the act is committed, the state
and the person may stipulate that the person may not petition for relief under
this section as part of an agreement that the person be subject to the
jurisdiction of the juvenile court rather than being prosecuted as an adult
under ORS 137.707.
SECTION 6.
ORS 181.607, as amended by section 30, chapter 843, Oregon Laws 2005, is
amended to read:
181.607. (1)(a) No
sooner than two years, but no later than five years, after the termination of
juvenile court jurisdiction or, if the person was placed under the jurisdiction
of the Psychiatric Security Review Board under ORS 419C.529, board jurisdiction
over a person required to report under ORS 181.595, 181.596 or 181.597, the
person may file a petition for relief from the duty to report. The person must
file the petition in the juvenile court in which the person was adjudicated for
the act that requires reporting.
(b) The juvenile court
in which a petition under this section is filed may transfer the matter to the
juvenile court of the county that last supervised the person if the court
determines that the convenience of the parties, the victim and witnesses
require the transfer.
(c) The juvenile court
has exclusive original jurisdiction in any proceeding under this section.
(d) The person, the
district attorney and the juvenile department are parties to a hearing on a
petition filed under this section.
(2) When a person files
a petition under this section and the petition was filed:
(a) No later than three
years after the termination of juvenile court jurisdiction or, if the person
was placed under the jurisdiction of the Psychiatric Security Review Board
under ORS 419C.529, board jurisdiction, the state has the burden of proving by
clear and convincing evidence that the person is not rehabilitated and
continues to pose a threat to the safety of the public.
(b) More than three
years, but no later than five years, after the termination of juvenile court
jurisdiction or, if the person was placed under the jurisdiction of the
Psychiatric Security Review Board under ORS 419C.529, board jurisdiction, the
person has the burden of proving by clear and convincing evidence that the
person is rehabilitated and does not pose a threat to the safety of the public.
(3) In determining
whether the state or the person has met the burden of proof established in
subsection (2) of this section, the juvenile court may consider but need not be
limited to considering:
(a) The extent and
impact of any physical or emotional injury to the victim;
(b) The nature of the
act that subjected the person to the duty of reporting as a sex offender;
(c) Whether the person
used or threatened to use force in committing the act;
(d) Whether the act was
premeditated;
(e) Whether the person
took advantage of a position of authority or trust in committing the act;
(f) The age of any
victim at the time of the act, the age difference between any victim and the
person and the number of victims;
(g) The vulnerability of
the victim;
(h) Other acts committed
by the person that would be crimes if committed by an adult and criminal
activities engaged in by the person before and after the adjudication;
(i) Statements,
documents and recommendations by or on behalf of the victim or the parents of
the victim;
(j) The person’s
willingness to accept personal responsibility for the act and personal
accountability for the consequences of the act;
(k) The person’s ability
and efforts to pay the victim’s expenses for counseling and other trauma-related
expenses or other efforts to mitigate the effects of the act;
(L) Whether the person
has participated in and satisfactorily completed a sex offender treatment
program or any other intervention, and if so the juvenile court may also
consider:
(A) The availability,
duration and extent of the treatment activities;
(B) Reports and
recommendations from the providers of the treatment;
(C) The person’s
compliance with court, board or supervision requirements regarding treatment;
and
(D) The quality and
thoroughness of the treatment program;
(m) The person’s
academic and employment history;
(n) The person’s use of
drugs or alcohol before and after the adjudication;
(o) The person’s history
of public or private indecency;
(p) The person’s compliance
with and success in completing the terms of supervision;
(q) The results of
psychological examinations of the person;
(r) The protection
afforded the public by the continued existence of the records; and
(s) Any other relevant
factors.
(4) In a hearing under
this section, the juvenile court may receive testimony, reports and other
evidence without regard to whether the evidence is admissible under ORS 40.010
to 40.210 and 40.310 to 40.585 if the evidence is relevant to the determination
and findings required under this section. As used in this subsection, “relevant
evidence” has the meaning given that term in ORS 40.150.
(5) When a petition is
filed under this section, the state has the right to have a psychosexual
evaluation of the person conducted. The state shall file notice with the
juvenile court of its intention to have the person evaluated. If the person
objects to the evaluator chosen by the state, the juvenile court for good cause
shown may direct the state to select a different evaluator.
(6) As soon as
practicable after a petition has been filed under this section, the district
attorney or juvenile department shall make a reasonable effort to notify
the victim of the crime that the person has filed a petition seeking relief
under this section and, if the victim has requested, to inform the victim of
the date, time and place of a hearing on the petition in advance of the hearing.
(7)(a) When a petition
has been filed under this section and the petition was filed:
(A) No later than three years
after the termination of juvenile court jurisdiction or, if the person was
placed under the jurisdiction of the Psychiatric Security Review Board under
ORS 419C.529, board jurisdiction, the court shall hold a hearing on the
petition no sooner than 60 days and no later than 120 days after the date of
filing.
(B) More than three
years, but no later than five years, after the termination of juvenile court
jurisdiction or, if the person was placed under the jurisdiction of the
Psychiatric Security Review Board under ORS 419C.529, board jurisdiction, the
court shall hold a hearing no sooner than 90 days and no later than 150 days
after the date of filing.
(b) Notwithstanding
paragraph (a) of this subsection, upon a showing of good cause, the court may
extend the period of time in which a hearing on the petition must be held.
(8) When the state has
the burden of proof under subsection (2) of this section and proves by clear
and convincing evidence that the person is not rehabilitated and continues to
pose a threat to the safety of the public, the court shall deny the petition.
When the person has the burden of proof under subsection (2) of this section
and proves by clear and convincing evidence that the person is rehabilitated
and does not pose a threat to the safety of the public, the court shall grant
the petition.
(9) When a juvenile
court enters an order relieving a person of the requirement to report under ORS
181.595, 181.596 or 181.597, the person shall send a certified copy of the
juvenile court order to the Department of State Police.
(10) If a person commits
an act that could be charged as a sex crime listed in ORS 137.707 and the
person is 15, 16 or 17 years of age at the time the act is committed, the state
and the person may stipulate that the person may not petition for relief under
this section as part of an agreement that the person be subject to the
jurisdiction of the juvenile court rather than being prosecuted as an adult
under ORS 137.707.
SECTION 7.
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 or a county juvenile probation officer.
(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 father of the child, ward, youth or
youth offender. As used in this subsection, “legal father” means:
(a) 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 416.465 or by a
juvenile court; and
(b) In cases in which
the Indian Child Welfare Act applies, a man who is a father under applicable
tribal law.
(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) “Victim” means
any person determined by the district attorney or juvenile department to have
suffered direct financial, psychological or physical harm as a result of an act
that has brought the youth or youth offender before the juvenile court. When
the victim is a minor, “victim” includes the legal guardian of the minor. The
youth or youth offender may not be considered the victim. When the victim of
the crime cannot be determined, the people of
(31) “Violent felony”
means any offense that, if committed by an adult, would constitute a felony
and:
(a) Involves actual or
threatened serious physical injury to a victim; or
(b) Is a sexual offense.
As used in this paragraph, “sexual offense” has the meaning given the term “sex
crime” in ORS 181.594.
[(30)] (32) “Ward” means a person within the jurisdiction of
the juvenile court under ORS 419B.100.
[(31)] (33) “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)] (34) “Youth care center” has the meaning given that
term in ORS 420.855.
[(33)] (35) “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 8.
ORS 419A.004, as amended by section 1, chapter 843, Oregon Laws 2005, 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 or a county juvenile probation officer.
(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 father of the child, ward, youth or
youth offender. As used in this subsection, “legal father” means:
(a) 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 416.465 or by a
juvenile court; and
(b) In cases in which
the Indian Child Welfare Act applies, a man who is a father under applicable
tribal law.
(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) “Victim” means
any person determined by the district attorney or juvenile department to have
suffered direct financial, psychological or physical harm as a result of an act
that has brought the youth or youth offender before the juvenile court. When
the victim is a minor, “victim” includes the legal guardian of the minor. The
youth or youth offender may not be considered the victim. When the victim of
the crime cannot be determined, the people of
(31) “Violent felony”
means any offense that, if committed by an adult, would constitute a felony
and:
(a) Involves actual or
threatened serious physical injury to a victim; or
(b) Is a sexual offense.
As used in this paragraph, “sexual offense” has the meaning given the term “sex
crime” in ORS 181.594.
[(30)] (32) “Ward” means a person within the jurisdiction of
the juvenile court under ORS 419B.100.
[(31)] (33) “Young person” means a person who has been found
responsible except for insanity under ORS 419C.411 and placed under the
jurisdiction of the Psychiatric Security Review Board.
[(32)] (34) “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.
[(33)] (35) “Youth care center” has the meaning given that
term in ORS 420.855.
[(34)] (36) “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 9.
ORS 419A.256 is amended to read:
419A.256. (1)(a)
Once prepared and filed with the court, a transcript of a juvenile court
proceeding is part of the record of the case maintained by the clerk of the
court under ORS 419A.255 (1) and is subject to the provisions of ORS 419A.255
(1) and (3) governing access and disclosure.
(b) Notwithstanding
ORS 419A.255, if a transcript, audiotape or videotape has been prepared in any
proceeding under ORS chapter 419C, the victim may obtain a copy by paying the
actual cost of preparation.
(2) The official audio,
video or other recording of a juvenile court proceeding shall be withheld from
public inspection but is open to inspection by the child, ward, youth, youth
offender, parent, guardian, court appointed special advocate, surrogate or a
person allowed to intervene in a proceeding involving the child, ward, youth or
youth offender, and their attorneys.
SECTION 10.
ORS 419A.262 is amended to read:
419A.262. (1) An
expunction proceeding shall be commenced in the county where the subject person
resided at the time of the most recent termination.
(2) Upon application of
either a person who is the subject of a record or a juvenile department, or
upon its own motion, the juvenile court shall order expunction if, after a
hearing when the matter is contested, it finds that:
(a) At least five years
have elapsed since the date of the person’s most recent termination;
(b) Since the date of
the most recent termination, the person has not been convicted of a felony or a
Class A misdemeanor;
(c) No proceedings
seeking a criminal conviction or an adjudication in a juvenile court are
pending against the person;
(d) The person is not
within the jurisdiction of any juvenile court on the basis of a petition
alleging an act or behavior as defined in ORS 419B.100 (1)(a) to (c) and (f) or
419C.005; and
(e) The juvenile
department is not aware of any pending investigation of the conduct of the person
by any law enforcement agency.
(3) In the case of an
application by the juvenile department or of the court acting upon its own
motion, expunction shall not be ordered if actual notice of expunction has not
been given to the person in accordance with subsection (10) of this section
unless the person has reached 21 years of age.
(4) When a person who is
the subject of a record kept by a juvenile court or juvenile department reaches
18 years of age, the juvenile court, after a hearing when the matter is
contested, shall order expunction if:
(a) The person never has
been found to be within the jurisdiction of the court; or
(b) The conditions of
subsection (2) of this section have been met.
(5) Expunction shall not
be ordered under this section if actual notice of expunction has not been given
to the person in accordance with subsection (10) of this section unless the
person has reached 21 years of age.
(6) Subsections (4) and
(5) of this section [shall] apply
only to cases [which result]
resulting in termination after September 13, 1975.
(7) Notwithstanding
subsections (2) and (4) to (6) of this section, upon application of a person
who is the subject of a record kept by a juvenile court or juvenile department,
upon application of the juvenile department, or upon its own motion, the
juvenile court, after a hearing when the matter is contested, may order
expunction of all or any part of the person’s record if it finds that to do so
would be in the best interests of the person and the public. In the case of an
application by the juvenile department or of the court acting upon its own
motion, expunction shall not be ordered if actual notice of expunction has not
been given to the person in accordance with subsection (10) of this section
unless the person has reached 21 years of age.
(8) When an expunction
proceeding is commenced by application of the person whose records are to be
expunged, the person shall set forth as part of the application the names of
the juvenile courts, juvenile departments, institutions and law enforcement and
other agencies [which] that
the person has reason to believe possess an expungible record of the person.
The juvenile department shall provide the names and addresses of the juvenile
courts, juvenile departments, institutions and law enforcement and other
agencies [which] that a
reasonable search of department files indicates have expungible records.
(9) When an expunction
proceeding is commenced by application of the juvenile department or upon the
court’s own motion, the application or motion shall set forth the names and
addresses of the juvenile courts, juvenile departments, institutions and law
enforcement and other agencies [which]
that a reasonable search of department files indicates have expungible
records and those provided by the subject person.
(10)(a) Notice and
a copy of an application for expunction under subsections (2) to (7) of
this section shall be given to:
[(a)] (A) The district attorney of the county in which the
expunction proceeding is commenced and the district attorney of each county in
which the record sought to be expunged is kept; and
[(b)] (B) The person who is the subject of the record if the
person has not initiated the expunction proceeding.
(b) A district
attorney who receives notice under this subsection shall notify the victim of
the acts that resulted in the disposition that is the subject of the
application for expunction and shall mail a copy of the application for
expunction to the victim’s last known address.
(11) Within 30 days of
receiving the notice of application for expunction under subsection (10) of
this section, a district attorney shall give written notice of any objection
and the grounds therefor to the person whose records are to be expunged and to
the juvenile court. If no objection is filed the court may decide the issue of
expunction either without a hearing or after full hearing pursuant to
subsections (12) to (15) of this section.
(12) When an expunction
is pending pursuant to subsections (2) to (7) of this section, the court may
proceed with or without a hearing, except that:
(a) The court may not
enter an expunction judgment without a hearing if a timely objection to
expunction has been filed pursuant to subsection (11) of this section; and
(b) The court may not
deny an expunction without a hearing if the proceeding is based on an
application of the subject.
(13)(a) Notice of
a hearing on a pending expunction shall be served on the subject and any
district attorney filing a timely objection pursuant to subsection (11) of this
section.
(b) When a district
attorney receives notice of a hearing for expunction of a record concerning a
youth or youth offender proceeding under ORS chapter 419C, if the victim of the
acts that resulted in the disposition that is the subject of the application
for expunction requests, the district attorney shall mail notice of the hearing
to the victim’s last-known address.
(14) The court shall
conduct a hearing on a pending expunction in accord with the provisions of ORS
419B.195, 419B.198, 419B.201, 419B.205, 419B.208, 419B.310, 419B.812 to
419B.839 and 419B.908. Rules of evidence shall be as in a hearing to establish
juvenile court jurisdiction and as defined in ORS 419B.310 (3) and 419C.400
(2). The burden of proof shall be with the party contesting expunction.
(15) At the conclusion
of a hearing on a pending expunction, the court shall issue judgment granting
or denying expunction.
(16) The juvenile court
or juvenile department shall send a copy of an expunction judgment to each
agency subject to the judgment. Upon receipt of a copy of the judgment, [an] the agency [subject thereto] shall comply and,
within 21 days of the date of receipt, return the copy to the juvenile court or
juvenile department with an indorsement indicating compliance.
(17) When all agencies
subject to an expunction judgment have indicated their compliance or in any
event no later than six weeks following the date the judgment was delivered as
required by subsection (16) of this section, the juvenile court shall provide
the person who is the subject of the record with a copy of the expunction
judgment, a list of complying and noncomplying agencies, and a written notice
of rights and effects of expunction. The juvenile court and juvenile department
then shall expunge forthwith all records which they possess and which are
subject to the judgment, except the original expunction judgment and the list
of complying and noncomplying agencies which [shall] must be preserved under seal.
(18) In addition to
those agencies identified in ORS 419A.260 (1)(d), the juvenile, circuit,
municipal and justice courts, and the district and city attorneys of this
state, are bound by an expunction judgment of any juvenile court of appropriate
jurisdiction in this state issuing an expunction judgment.
(19) Upon entry of an
expunction judgment, the contact [which]
that is the subject of the expunged record shall not be disclosed by any
agency. An agency that is subject to an expunction judgment shall respond to
any inquiry about the contact by indicating that no record or reference
concerning the contact exists.
(20) A person who is the
subject of a record [which] that
has been expunged under this section may assert that the record never existed
and that the contact, which was the subject of the record, never occurred
without incurring a penalty for perjury or false swearing under the laws of
this state.
(21) Juvenile courts, by
court rule or by order related to a particular matter, may direct that records
concerning a subject person be destroyed. No such records shall be destroyed
until at least three years have elapsed after the date of the subject’s most
recent termination. In the event the record has been expunged, the expunction
judgment and list of complying and noncomplying agencies [shall] may not be destroyed, but shall be preserved under
seal. The destruction [herein defined]
of records under this subsection does not constitute expunction.
(22) An expunction
judgment and list of complying and noncomplying agencies shall be released from
confidentiality only on order of the court originating the expunction judgment,
based on a finding that review of a particular case furthers compliance with
the expunction provisions of this chapter.
(23) A subject has a
right of action against any person who intentionally violates the
confidentiality provisions of this section. In any such proceeding, punitive
damages up to an amount of $1,000 may be sought in addition to any actual
damages. The prevailing party shall be entitled to costs and reasonable attorney
fees.
(24) Intentional
violation of the confidentiality provisions of this section by a public
employee is cause for dismissal.
(25) A person who
intentionally releases all or part of an expunged record commits a Class C
misdemeanor.
SECTION 11.
ORS 419C.097 is amended to read:
419C.097. (1) As
soon as practicable after the youth is taken into custody under ORS 419C.080
and 419C.088, the person taking the youth into custody shall notify the youth’s
parent, guardian or other person responsible for the youth. The notice shall
inform the parent, guardian or other person of the action taken and the time
and place of the hearing.
(2) If the victim
requests, the district attorney or juvenile department shall notify the victim
of the time and place of the hearing.
SECTION 12.
ORS 419C.100 is amended to read:
419C.100. The person
taking the youth into custody under ORS 419C.080 and 419C.088 shall release the
youth to the custody of the youth’s parent, guardian or other responsible
person in this state, except in the following cases:
(1) When the court has
issued a warrant of arrest against the youth.
(2) When the person
taking the youth into custody has probable cause to believe that release of
the youth may endanger the welfare of the youth, the victim or
others [may be endangered by the release
of the youth].
(3) When the person
taking the youth into custody has probable cause to believe that the youth,
while in or on a public building or court facility within the last 120 days,
possessed a firearm or destructive device in violation of ORS 166.250, 166.370
or 166.382.
SECTION 13.
ORS 419C.106 is amended to read:
419C.106. (1) Except
where the youth is taken into custody pursuant to an order of the court, the
person taking the youth into custody under ORS 419C.080 and 419C.088 shall
promptly file with the court or a counselor a brief written report stating all
of the following:
(a) The youth’s name,
age and address.
(b) The name and address
of the person having legal or physical custody of the youth.
(c) Efforts to notify
the person having legal or physical custody of the youth and the results of
those efforts.
(d) Reasons for and
circumstances under which the youth was taken into custody and, if known,
the name and contact information of any victim.
(e) If the youth is not
taken to court, the placement of the youth.
(f) If the youth was not
released, the reason why the youth was not released.
(g) If the youth is not
taken to court, why the type of placement was chosen.
(2) The person taking
the youth into custody under ORS 419C.080 and 419C.088 shall also send a copy
of the report under subsection (1) of this section to the district attorney.
SECTION 14.
ORS 419C.142 is amended to read:
419C.142. (1)
Whenever a hearing concerning the detention of a youth under this chapter is
held, notice of the hearing shall be given to:
(a) The youth [and,];
(b) If any can be found, to a parent or guardian
of the youth or to any other person responsible for the youth[.]; and
(c) If the victim
requests notice, the victim.
(2) The notice shall state the time, place and
purpose of the hearing. If a parent, guardian or other person cannot be found
and personally notified prior to the hearing, a written notice of the hearing
shall be left at the residence, if known, of a parent, guardian or other
person.
SECTION 15.
ORS 419C.145 is amended to read:
419C.145. (1) A youth
may be held or placed in detention before adjudication on the merits if one or
more of the following circumstances exists:
(a) The youth is a
fugitive from another jurisdiction;
(b) The youth is alleged
to be within the jurisdiction of the court under ORS 419C.005, by having
committed or attempted to commit an offense which, if committed by an adult,
would be chargeable as:
(A) A crime involving
infliction of physical injury to another person;
(B) A misdemeanor under
ORS 166.023; or
(C) Any felony crime;
(c) The youth has
willfully failed to appear at one or more juvenile court proceedings by having
disobeyed a proper summons, citation or subpoena;
(d) The youth is
currently on probation imposed as a consequence of the youth previously having
been found to be within the jurisdiction of the court under ORS 419C.005, and
there is probable cause to believe the youth has violated one or more of the
conditions of that probation;
(e) The youth is subject
to conditions of release pending or following adjudication of a petition
alleging that the youth is within the jurisdiction of the court pursuant to ORS
419C.005 and there is probable cause to believe the youth has violated a
condition of release; [or]
(f) The youth is alleged
to be in possession of a firearm in violation of ORS 166.250[.]; or
(g) The youth is
required to be held or placed in detention for the reasonable protection of the
victim.
(2) A youth detained
under subsection (1) of this section must be released to the custody of a
parent or other responsible person, released upon the youth’s own recognizance
or placed in shelter care unless the court or its authorized representative
makes written findings that there is probable cause to believe that the youth
may be detained under subsection (1) of this section, that describe why it is
in the best interests of the youth to be placed in detention and that one or
more of the following circumstances are present:
(a) No means less
restrictive of the youth’s liberty gives reasonable assurance that the youth
will attend the adjudicative hearing; or
(b) The youth’s behavior
endangers the physical welfare of the youth, the victim or another
person, or endangers the community.
(3) When a youth is
ordered held or placed in detention, the court or its authorized representative
shall state in writing the basis for its detention decision and a finding
describing why it is in the best interests of the youth to be placed in
detention. The youth shall have the opportunity to rebut evidence received by
the court and to present evidence at the hearing.
(4) In determining
whether release is appropriate under subsection (2) of this section, the court
or its authorized representative shall consider the following:
(a) The nature and
extent of the youth’s family relationships and the youth’s relationships with
other responsible adults in the community;
(b) The youth’s previous
record of referrals to juvenile court and recent demonstrable conduct;
(c) The youth’s past and
present residence;
(d) The youth’s
education status and school attendance record;
(e) The youth’s past and
present employment;
(f) The youth’s previous
record regarding appearance in court;
(g) The nature of the
charges against the youth and any mitigating or aggravating factors;
(h) The youth’s mental
health; [and]
(i) The reasonable
protection of the victim; and
[(i)] (j) Any other facts relevant to the likelihood of the
youth’s appearance in court or likelihood that the youth will comply with the
law and other conditions of release.
(5) Notwithstanding
subsection (2) of this section, the court may not release a youth when:
(a) There is probable
cause to believe the youth committed an offense that, if committed by an adult,
would constitute a violent felony; and
(b) There is clear and
convincing evidence that the youth poses a danger of serious physical injury to
or sexual victimization of the victim or members of the public while the youth
is on release.
SECTION 16.
ORS 419C.153 is amended to read:
419C.153. Any youth
ordered detained under ORS 419C.145, 419C.150 and 419C.156 shall have a review
hearing at least every 10 days, excluding Saturdays, Sundays and judicial holidays.
At the review hearing the court shall determine whether sufficient cause exists
to require continued detention of the youth. In addition, the court may review
and may confirm, revoke or modify any order for the detention or release of the
youth under this section or ORS 419C.109, 419C.136, 419C.139, 419C.145,
419C.150 or 419C.156 and, in the event that the youth is alleged to have
committed an offense which if committed by an adult would be a misdemeanor or
Class C felony, may do so ex parte. Release of a youth may not be revoked,
however, except upon a finding that the youth may be detained under this
section or ORS 419C.145, 419C.150 and 419C.156, and after a hearing is held in
accordance with ORS 419C.109, 419C.136 and 419C.139. If the victim requests,
the district attorney or juvenile department shall notify the victim of the
review hearing.
SECTION 17.
ORS 419C.173 is amended to read:
419C.173. (1)
When the youth is taken, or is about to be taken, into temporary custody
pursuant to ORS 419C.080 and 419C.088 and placed in shelter care, a parent or
youth shall be given the opportunity to present evidence to the court at the
hearing specified in ORS 419C.170, and at any subsequent review hearing, that
the youth can be returned home without further danger of suffering physical
injury or emotional harm, endangering or harming others, or not remaining
within the reach of the court process prior to adjudication.
(2) If the victim
requests, the district attorney or juvenile department shall notify the victim
of a hearing under this section.
(3) At the hearing:
[(1)] (a) The court shall make a written finding as to
whether reasonable efforts have been made, considering the circumstances of the
youth’s conduct, to prevent or eliminate the need for removal of the youth from
the home;
[(2)] (b) In determining whether a youth shall be removed or
continued out of the home, the court shall consider whether the provision of
reasonable and available services can prevent or eliminate the need to remove
the youth from the home; and
[(3)] (c) The court shall make a written finding in every
order of removal that it is in the best interest of the youth and the community
that the youth be removed from the home or continued in care.
SECTION 18.
ORS 419C.176 is amended to read:
419C.176. If the court
finds that release of the youth on the youth’s own recognizance is unwarranted
and if probable cause exists to believe that the youth may be detained under
ORS 419A.063, 419C.145 or 419C.453, the court may make a conditional release of
the youth subject to such conditions as will protect the safety of the youth, the
victim, other persons and the community and insure the youth’s appearance
in court.
SECTION 19.
ORS 419C.230 is amended to read:
419C.230. (1) A formal
accountability agreement may be entered into when a youth has been referred to
a county juvenile department, and a juvenile department counselor has probable
cause to believe that the youth may be found to be within the jurisdiction of
the juvenile court for one or more acts specified in ORS 419C.005.
(2) Notwithstanding
subsection (1) of this section, unless authorized by the district attorney, a
formal accountability agreement may not be entered into when the youth:
(a) Is alleged to have
committed an act that if committed by an adult would constitute:
(A) A felony sex offense
under ORS 163.355, 163.365, 163.375, 163.385, 163.395, 163.405, 163.408,
163.411, 163.425 or 163.427; or
(B) An offense involving
the use or possession of a firearm, as defined in ORS 166.210, or destructive
device, as described in ORS 166.382; or
(b) Is being referred to
the county juvenile department for a second or subsequent time for commission
of an act that if committed by an adult would constitute a felony.
(3) The juvenile department
must consult the victim before entering into a formal accountability agreement
if:
(a) The victim has
requested consultation in plea negotiations; and
(b) The formal
accountability agreement involves an alleged act that if committed by an adult
would constitute a violent felony.
SECTION 20.
ORS 419C.255 is amended to read:
419C.255. (1) The
petition shall set forth in ordinary and concise language such of the following
facts as are known and indicate any which are not known:
(a) The name, age and
residence of the youth.
(b) The facts which
bring the youth within the jurisdiction of the court as provided in ORS
419C.005.
(c) The name and
residence of the youth’s parents or, if the youth has no parents or the names
and residences of both parents are unknown, then the name and address of the
youth’s guardian, if the youth has a guardian.
(d) The name and
residence of the person having physical custody of the youth.
(2) A petition alleging
jurisdiction under ORS 419C.005 shall set forth in addition the name [and city of residence if known] of any
person who was physically injured or who suffered loss of or damage to property
as a result of the conduct alleged.
SECTION 21.
ORS 419C.270 is amended to read:
419C.270. In all
proceedings brought under ORS 419C.005, the following rules of criminal
procedure apply:
(1) ORS 133.673, 133.693
and 133.703;
(2) ORS 135.455, 135.465
and 135.470;
(3) ORS 135.610, 135.630
(3) to (6), 135.640 and 135.670;
(4) ORS 135.711,
135.713, 135.715, 135.717, 135.720, 135.725, 135.727, 135.730, 135.733,
135.735, 135.737, 135.740 and 135.743;
(5) ORS 135.805 and
135.815 (1)(a) to (e);
(6) ORS 135.825,
135.835, 135.845 and 135.855 to 135.873;
[(7) ORS 135.970;] and
[(8)] (7) ORS 136.432[,
147.417, 147.419 and 147.421].
SECTION 22.
ORS 419C.450 is amended to read:
419C.450. (1)(a) It is
the policy of the State of
(A) Include in the
judgment a requirement that the youth offender pay the victim restitution in a
specific amount that equals the full amount of the victim’s injury, loss or
damage as determined by the court; or
(B) Include in the
judgment a requirement that the youth offender pay the victim restitution, and
that the specific amount of restitution will be established by a supplemental
judgment based upon a determination made by the court within 90 days of entry
of the judgment. In the supplemental judgment, the court shall establish a
specific amount of restitution that equals the full amount of the victim’s
injury, loss or damage as determined by the court. The court may extend the time
within which the determination and supplemental judgment may be completed for
good cause. The lien, priority of the lien and ability to enforce a specific
amount of restitution established under this subparagraph by a supplemental
judgment relates back to the date of the original judgment that is
supplemented.
(b) After the district
attorney makes a presentation described in paragraph (a) of this subsection, if
the court is unable to find from the evidence presented that a victim suffered
injury, loss or damage, the court shall make a finding on the record to that
effect.
(c) No finding made by
the court or failure of the court to make a finding under this subsection
limits or impairs the rights of a person injured to sue and recover damages in
a civil action under subsection (2) of this section.
(d) The court may order
restitution, including but not limited to counseling and treatment expenses,
for emotional or psychological injury under this section only:
(A) When the act that
brought the youth offender within the jurisdiction of the court would
constitute aggravated murder, murder or a sex crime if committed by an adult;
and
(B) For an injury
suffered by the victim or a member of the victim’s family who observed the act.
(e) If the youth
offender will be present at a hearing under this subsection and the victim
requests notice, the district attorney or juvenile department shall notify the
victim of the hearing.
(2) Restitution for
injury inflicted upon a person by the youth offender, for property taken,
damaged or destroyed by the youth offender and for a reward offered by the
victim or an organization authorized by the victim and paid for information
leading to the apprehension of the youth offender, shall be required as a
condition of probation. Restitution does not limit or impair the right of a
victim to sue in a civil action for damages suffered, nor shall the fact of
consultation by the victim be admissible in such civil action to prove consent
or agreement by the victim. However, the court shall credit any restitution
paid by the youth offender to a victim against any judgment in favor of the
victim in such civil action. Before setting the amount of such restitution, the
court shall notify the person upon whom the injury was inflicted or the owner
of the property taken, damaged or destroyed and give such person an opportunity
to be heard on the issue of restitution.
(3) If a judgment or
supplemental judgment described in subsection (1) of this section includes
restitution, a court may delay the enforcement of the monetary sanctions,
including restitution, only if the youth offender alleges and establishes to
the satisfaction of the court the youth offender’s inability to pay the
judgment in full at the time the judgment is entered. If the court finds that
the youth offender is unable to pay, the court may establish or allow an
appropriate supervising authority to establish a payment schedule, taking into
consideration:
(a) The availability to
the youth offender of paid employment during such time as the youth offender
may be committed to a youth correction facility;
(b) The financial
resources of the youth offender and the burden that payment of restitution will
impose, with due regard to the other obligations of the youth offender;
(c) The present and
future ability of the youth offender to pay restitution on an installment basis
or on other conditions to be fixed by the court; and
(d) The rehabilitative
effect on the youth offender of the payment of restitution and the method of
payment.
(4) Notwithstanding ORS
419C.501 and 419C.504, when the court has ordered a youth offender to pay
restitution, as provided in this section, the judgment shall be entered in the
register or docket of the court in the manner provided by ORS chapter 18 and enforced
in the manner provided by ORS 18.252 to 18.993. The judgment is in favor of the
state and may be enforced only by the state. Notwithstanding ORS 419A.255, a
judgment for restitution entered under this subsection is a public record.
Judgments entered under this subsection are subject to ORS 18.048.
(5) A person required to
pay restitution under subsection (1) of this section may file a motion
supported by an affidavit for satisfaction of the judgment or supplemental
judgment requiring payment of restitution in the circuit court of the county in
which the original judgment was entered if:
(a) At least 50 percent
of the monetary obligation is satisfied or at least 10 years have passed since
the original judgment was entered;
(b) The person has
substantially complied with all established payment plans;
(c) The person has not
been found to be within the jurisdiction of the juvenile court under ORS
419C.005 or convicted of an offense since the date the original judgment of
restitution was entered; and
(d) The person has
satisfactorily completed any required period of probation or parole for the act
for which the judgment of restitution was entered.
(6) When a person files
a motion described in subsection (5) of this section, the district attorney for
the county in which the motion was filed shall promptly notify the victim for
whose benefit the judgment of restitution was entered that the person has filed
the motion and that the victim may object in writing to the motion through the
district attorney.
(7) If the victim does
not object to the motion as provided in subsection (6) of this section, the
court shall hold a hearing on the motion and may enter an order granting a full
or partial satisfaction if the allegations in the affidavit supporting the motion
are true and failure to grant the motion would result in an injustice. In
determining whether an injustice would result, the court shall take into
account:
(a) The financial
resources of the defendant and the burden that continued payment of restitution
will impose, with due regard to the other obligations of the defendant;
(b) The ability of the
defendant to continue paying restitution on an installment basis or under other
conditions to be fixed by the court; and
(c) The rehabilitative
effect on the defendant of the continued payment of restitution and the method
of payment.
(8) A person may file a
motion under subsection (5) of this section no more than one time per year for
each judgment of restitution entered against the person.
SECTION 23.
ORS 419C.261 is amended to read:
419C.261. (1) The court,
on motion of an interested party or on its own motion, may at any time direct
that the petition be amended. If the amendment results in a substantial
departure from the facts originally alleged, the court shall grant such
continuance as the interests of justice may require. When the court directs the
amendment of a petition alleging that a youth has committed an act that would
constitute a sex crime, as defined in ORS 181.594, if committed by an adult,
the court shall make written findings stating the reason for directing the
amendment.
(2)(a) The court
may set aside or dismiss a petition filed under ORS 419C.005 in furtherance of
justice after considering the circumstances of the youth and the interests of
the state in the adjudication of the petition.
(b) If the victim
requests notice, the district attorney or juvenile department shall notify the
victim of a hearing to amend the petition in advance of the hearing.
(c) When the court sets aside or dismisses a
petition alleging that a youth has committed an act that would constitute a sex
crime, as defined in ORS 181.594, if committed by an adult, the court shall
make written findings stating the reason for setting aside or dismissing the
petition.
(3) The district
attorney or juvenile department must consult the victim regarding plea
negotiations if:
(a) The victim has
requested to be consulted regarding plea negotiations;
(b) The petition alleges
the youth committed an act that would constitute a violent felony, as defined
in ORS 419A.004, if committed by an adult; and
(c) The negotiations
could lead to an amendment of the petition for purposes of obtaining an
admission from the youth.
SECTION 24.
ORS 419C.653 is amended to read:
419C.653. (1) The court
may order that the youth offender or any other person be present during a
hearing under ORS 419C.626.
(2) The court shall
notify the parties listed in ORS 419C.626 and any other interested parties of
the hearing. The notice shall state the time and place of the hearing. Upon
request of the court, the Oregon Youth Authority or other legal custodian of
the youth offender shall provide the court with information concerning the
whereabouts and identity of such parties. If the victim requests notice, the
district attorney or juvenile department shall notify the victim of the time
and place of the hearing.
SECTION 25.
ORS 420A.122 is amended to read:
420A.122. (1) Prior to a
youth offender’s release or discharge from a youth correction facility, the Oregon
Youth Authority shall notify the following of the release or discharge:
(a) Law enforcement
agencies in the community in which the youth offender is going to reside; [and]
(b) The school district
in which the youth offender is going to reside[.]; and
(c) If requested by the
victim, as defined in ORS 419A.004, the victim.
(2) The youth authority
shall include in the notification:
(a) The youth offender’s
name and date of release or discharge;
(b) The type of
placement to which the youth offender is released;
(c) Whether school
attendance is a condition of release; and
(d) If the youth
offender is a sex offender, as defined in ORS 181.594, all other conditions of
release.
(3) The youth authority,
a law enforcement agency or anyone employed by or acting on behalf of the youth
authority or law enforcement agency [who
sends] with responsibility for sending records under this section is
not liable civilly or criminally for failing to disclose the information under
this section.
(4) No later than seven
days after a youth offender’s release or discharge from a youth correction
facility, the Department of Education or its contractor shall provide the youth
offender’s education records to the school district in which the youth offender
enrolls.
Approved by the Governor June 26, 2007
Filed in the office of Secretary of State June 27, 2007
Effective date January 1, 2008
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