74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
House Bill 2190
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Human Services)
CHAPTER ................
AN ACT
Relating to custody of children; creating new provisions; and
amending ORS 107.135, 418.016, 419A.116, 419A.255, 419B.343,
419B.443, 419B.449, 419B.476, 419B.875 and 419B.918.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 418.016 is amended to read:
418.016. (1) To protect the health and safety of children who
are in the custody of the Department of Human Services and who
may be placed in a foster home or adoptive home or with a
relative caregiver, the department shall adopt rules pursuant to
ORS 181.534 and ORS chapter 418 to require that criminal records
checks be conducted under ORS 181.534 on:
(a) All persons who seek to be foster parents, adoptive parents
or relative caregivers; and
(b) Other individuals over 18 years of age who will be in the
household of the foster parent, adoptive parent or relative
caregiver.
(2) Rules adopted under subsection (1) of this section shall
include:
(a) A list of crimes for which a conviction disqualifies a
person from becoming a foster parent, adoptive parent or relative
caregiver;
(b) A requirement that persons who have been convicted of
crimes listed in the rules are disqualified from becoming a
foster parent, adoptive parent or relative caregiver; and
(c) A provision that the department may approve a person who
has been convicted of certain crimes listed in the rules if the
person demonstrates to the department that:
(A) The person possesses the qualifications to be a foster
parent or adoptive parent regardless of having been convicted of
a listed crime; or
(B) The disqualification would create emotional harm to the
child for whom the person is seeking to become a foster parent,
adoptive parent or relative caregiver and placement of the child
with the person would be a safe placement that is in the best
interests of the child.
{ - (3) In accordance with 42 U.S.C. 671(a)(20)(B), the
Legislative Assembly elects to make the provisions related to
criminal records checks set forth in 42 U.S.C. 671(a)(20)(A)
inapplicable to this state. - }
Enrolled House Bill 2190 (HB 2190-B) Page 1
SECTION 2. { + The amendments to ORS 418.016 by section 1 of
this 2007 Act become operative on October 1, 2008. + }
SECTION 3. ORS 419A.116 is amended to read:
419A.116. (1) After reviewing each case, the local citizen
review board shall make written findings and recommendations with
respect to:
(a) Whether reasonable efforts were made prior to the
placement, to prevent or eliminate the need for removal of the
child or ward from the home;
(b) If the case plan at the time of the review is to reunify
the family, whether the Department of Human Services has made
reasonable efforts or, if the Indian Child Welfare Act applies,
active efforts to make it possible for the child or ward to
safely return home and whether the parent has made sufficient
progress to make it possible for the child or ward to safely
return home;
(c) If the case plan at the time of the review is something
other than to reunify the family, whether the department has made
reasonable efforts to place the child or ward in a timely manner
in accordance with the case plan { + , including, if appropriate,
placement of the child or ward through an interstate
placement, + } and to complete the steps necessary to finalize
the permanent placement of the child or ward;
(d) The continuing need for and appropriateness of the
placement;
(e) Compliance with the case plan;
(f) The progress which has been made toward alleviating the
need for placement;
(g) A likely date by which the child or ward may be returned
home or placed for adoption;
(h) Other problems, solutions or alternatives the board
determines should be explored; and
(i) Whether the court should appoint an attorney or other
person as special advocate to represent or appear on behalf of
the child or ward under ORS 419B.195.
(2) The local citizen review board may, if the case plan has
changed during the period since the last review by a local
citizen review board or court hearing, make written findings and
recommendations with respect to:
(a) Whether the Department of Human Services has made
reasonable efforts or, if the Indian Child Welfare Act applies,
active efforts to make it possible for the child or ward to
safely return home and whether the parent has made sufficient
progress to make it possible for the child or ward to safely
return home, if a plan to reunify the family was in effect for
any part of the period since the last review or hearing; or
(b) Whether the department has made reasonable efforts to place
the child or ward in a timely manner in accordance with the case
plan { + , including, if appropriate, placement of the child or
ward through an interstate placement, + } and { + to + }
complete the steps necessary to finalize the permanent placement
of the child or ward, if a case plan other than to reunify the
family was in effect for any part of the period since the last
review or hearing.
(3) In determining whether the Department of Human Services has
made reasonable efforts or, if the Indian Child Welfare Act
applies, active efforts to make it possible for the child or ward
to safely return home, the local citizen review board shall
consider the child or ward's health and safety the paramount
concerns.
Enrolled House Bill 2190 (HB 2190-B) Page 2
(4) No later than 10 days after receiving the findings and
recommendations of the local citizen review board, a party
adversely affected by the findings and recommendations may
request judicial review.
SECTION 4. ORS 419A.255 is amended to read:
419A.255. (1) The clerk of the court shall keep a record of
each case, including therein the summons and other process, the
petition and all other papers in the nature of pleadings,
motions, orders of the court and other papers filed with the
court, but excluding reports and other material relating to the
child, ward, youth or youth offender's history and prognosis. The
record of the case 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. The
attorneys are entitled to copies of the record of the case.
(2) Reports and other material relating to the child, ward,
youth or youth offender's history and prognosis are privileged
and, except at the request of the child, ward, youth or youth
offender, may not be disclosed directly or indirectly to anyone
other than the judge of the juvenile court, those acting under
the judge's direction, service providers in the case and the
attorneys of record for the child, ward, youth or youth offender
or the child, ward, youth or youth offender's parent, guardian,
court appointed special advocate, surrogate or person allowed to
intervene in a proceeding involving the child, ward, youth or
youth offender. Reports and other material relating to a youth
offender's history and prognosis in cases under ORS 419C.005 may
be disclosed to the superintendent of the school district in
which the youth offender resides. The service providers in the
case, school superintendents and attorneys are entitled to
examine and obtain copies of any reports or other material
relating to the child, ward, youth or youth offender's history
and prognosis. Any service provider in the case, school
superintendent or attorney who examines or obtains copies of such
reports or materials is responsible for preserving their
confidentiality. A service provider or school superintendent who
obtains copies of such reports or materials shall return the
copies to the court upon the conclusion of the service provider's
or superintendent's involvement in the case.
(3) Except as otherwise provided in subsection (7) of this
section, no information appearing in the record of the case or in
reports or other material relating to the child, ward, youth or
youth offender's history or prognosis may be disclosed to any
person not described in subsection (2) of this section without
the consent of the court, except for purposes of evaluating the
child, ward, youth or youth offender's eligibility for special
education as provided in ORS chapter 343, and no such information
may be used in evidence in any proceeding to establish criminal
or civil liability against the child, ward, youth or youth
offender, whether such proceeding occurs after the child, ward,
youth or youth offender has reached 18 years of age or otherwise,
except for the following purposes:
(a) In connection with a presentence investigation after guilt
has been admitted or established in a criminal court.
(b) In connection with a proceeding in another juvenile court
concerning the child, ward, youth or youth offender or an appeal
from the juvenile court.
Enrolled House Bill 2190 (HB 2190-B) Page 3
(4) If the court finds that the child, ward, youth, youth
offender or parent is without financial means to purchase all or
a necessary part of the transcript of the evidence or
proceedings, the court shall order upon motion the transcript or
part thereof to be furnished. The transcript or part thereof
furnished under this subsection shall be paid for in the same
manner as furnished transcripts are paid for in criminal cases.
(5) Notwithstanding any other provision of law, the following
are not confidential and not exempt from disclosure:
(a) The name and date of birth of the youth or youth offender;
(b) The basis for the juvenile court's jurisdiction over the
youth or youth offender;
(c) The date, time and place of any juvenile court proceeding
in which the youth or youth offender is involved;
(d) The act alleged in the petition that if committed by an
adult would constitute a crime if jurisdiction is based on ORS
419C.005;
(e) That portion of the juvenile court order providing for the
legal disposition of the youth or youth offender when
jurisdiction is based on ORS 419C.005;
(f) The names and addresses of the youth or youth offender's
parents or guardians; and
(g) The register described in ORS 7.020 when jurisdiction is
based on ORS 419C.005.
(6) Notwithstanding any other provision of law, when a youth
has been taken into custody under ORS 419C.080, the following
information shall be disclosed unless, and only for so long as,
there is a clear need to delay disclosure in the course of a
specific investigation, including the need to protect the
complaining party or the victim:
(a) The youth's name and age and whether the youth is employed
or in school;
(b) The youth offense for which the youth was taken into
custody;
(c) The name and age of the adult complaining party and the
adult victim, unless the disclosure of such information is
otherwise prohibited or restricted;
(d) The identity of the investigating and arresting agency; and
(e) The time and place that the youth was taken into custody
and whether there was resistance, pursuit or a weapon used in
taking the youth into custody.
(7)(a) Information contained in reports and other materials
relating to a child, ward, youth or youth offender's history and
prognosis that, in the professional judgment of the juvenile
counselor, caseworker, school superintendent, teacher or
detention worker to whom the information for the reports or other
materials has been provided, indicates a clear and immediate
danger to another person or to society shall be disclosed to the
appropriate authority and the person or entity who is in danger
from the child, ward, youth or youth offender.
(b) An agency or a person who discloses information under
paragraph (a) of this subsection has immunity from any liability,
civil or criminal, that might otherwise be incurred or imposed
for making the disclosure.
(c) Nothing in this subsection affects the provisions of ORS
146.750, 146.760, 419B.035, 419B.040 and 419B.045. The disclosure
of information under this section does not make the information
admissible in any court or administrative proceeding if it is not
otherwise admissible.
Enrolled House Bill 2190 (HB 2190-B) Page 4
(8) A county juvenile department is the agency responsible for
disclosing youth and youth offender records if the records are
subject to disclosure.
(9) A petition filed under ORS 419B.851 alleging that a child
who is a foreign national is within the jurisdiction of the
court, or a motion requesting an implementation plan other than
return of a ward to the ward's parent, is subject to disclosure
to the consulate for the child or ward's country as provided
under ORS 419B.851 (3).
(10) Nothing in this section prohibits a guardian appointed
under ORS 419B.365 or 419B.366 from disclosing or providing
copies of letters of guardianship when so required to fulfill the
duties of a guardian.
{ + (11) The court shall cooperate in the sharing of
information with a court in another state to facilitate an
interstate placement of a child or ward. + }
SECTION 5. ORS 419B.343 is amended to read:
419B.343. (1) To ensure effective planning for wards, the
Department of Human Services shall take into consideration
recommendations and information provided by the committing court
before placement in any facility. The department shall ensure
that the case planning in any case:
(a) For the reunification of the family bears a rational
relationship to the jurisdictional findings that brought the ward
within the court's jurisdiction under ORS 419B.100;
(b) Incorporates the perspective of the ward and the family
and, whenever possible, allows the family to assist in designing
its own service programs, based on an assessment of the family's
needs and the family's solutions and resources for change; and
(c) Is integrated with other agencies in cooperation with the
caseworkers.
(2) Except in cases when the plan is something other than to
reunify the family, the department shall include in the case
plan:
(a) Appropriate services to allow the parent the opportunity to
adjust the parent's circumstances, conduct or conditions to make
it possible for the ward to safely return home within a
reasonable time; and
(b) A concurrent permanent plan to be implemented if the parent
is unable or unwilling to adjust the parent's circumstances,
conduct or conditions in such a way as to make it possible for
the ward to safely return home within a reasonable time.
(3) Any time after a ward attains 14 years of age, if the
department determines that it is appropriate, but in no case
later than the date the ward attains 16 years of age, the
department shall ensure that the case planning in the case
addresses the ward's needs and goals for a successful transition
to independent living, including needs and goals related to
housing, physical and mental health, education, employment,
community connections and supportive relationships.
{ + (4) The case plan for a ward in substitute care must
include the health and education records of the ward, including
the most recent information available regarding:
(a) The names and addresses of the ward's health and education
providers;
(b) The grade level of the ward's academic performance;
(c) The ward's school record;
(d) Whether the ward's placement takes into account proximity
to the school in which the ward is enrolled at the time of
placement;
Enrolled House Bill 2190 (HB 2190-B) Page 5
(e) The ward's immunizations;
(f) Any known medical problems of the ward;
(g) The ward's medications; and
(h) Any other relevant health and education information
concerning the ward that the department determines is appropriate
to include in the records. + }
SECTION 6. ORS 419B.443 is amended to read:
419B.443. (1) The agency shall file the reports required by ORS
419B.440 (2) and (3) at the end of the initial six-month period
and no less frequently than each six months thereafter. The
agency shall file reports more frequently if the court so orders.
The reports shall include, but not be limited to:
(a) A description of the problems or offenses that necessitated
the placement of the child or ward with the agency;
(b) A description of the type and an analysis of the
effectiveness of the care, treatment and supervision that the
agency has provided for the child or ward, together with a list
of all placements made since the child or ward has been in the
guardianship or legal custody of an agency and the length of time
the child or ward has spent in each placement;
(c) A description of agency efforts to return the child or ward
to the parental home or find permanent placement for the child or
ward, including, when applicable, efforts to assist the parents
in remedying factors which contributed to the removal of the
child or ward from the home;
(d) A proposed treatment plan or proposed continuation or
modification of an existing treatment plan, including, when
applicable, terms of visitation to be allowed and expected of
parents and a description of efforts expected of the child or
ward and the parents to remedy factors that have prevented the
child or ward from safely returning home within a reasonable
time; { - and - }
(e) If continued substitute care is recommended, a proposed
timetable for the child or ward's return home or other permanent
placement or a justification of why extended substitute care is
necessary { - . - } { + ; and
(f) If the child or ward has been placed in foster care outside
the state, whether the child or ward has been visited not less
frequently than every six months by a state or private
agency. + }
(2) Notwithstanding the requirements of subsection (1) of this
section, reports following the initial report need not contain
information contained in prior reports.
SECTION 7. ORS 419B.449 is amended to read:
419B.449. (1) Upon receiving any report required by ORS
419B.440 { - and 419B.443 - } , the court may hold a hearing to
review the child or ward's condition and circumstances and to
determine if the court should continue jurisdiction and wardship
or order modifications in the care, placement and supervision of
the child or ward. The court shall hold a hearing:
(a) In all cases under ORS 419B.440 (3) when the parents'
rights have been terminated; or
(b) If requested by the child or ward, the attorney for the
child or ward, if any, the parents or the public or private
agency having guardianship or legal custody of the child or ward
within 30 days of receipt of the notice provided in ORS 419B.452.
(2) The court shall conduct a hearing provided in subsection
(1) of this section in the manner provided in ORS 419B.310,
except that the court may receive testimony and reports as
provided in ORS 419B.325. At the conclusion of the hearing, the
Enrolled House Bill 2190 (HB 2190-B) Page 6
court shall enter findings of fact if the decision is to continue
the child or ward in substitute care. Such findings shall
specifically state:
(a) Why continued care is necessary as opposed to returning the
child or ward home or taking prompt action to secure another
permanent placement; or
(b) The expected timetable for return or other permanent
placement.
(3) In making the findings under subsection (2) of this
section, the court shall consider the efforts made to develop the
concurrent case plan, including, but not limited to, { +
identification of appropriate permanent placement options for the
child or ward both inside and outside this state and, if adoption
is the concurrent case plan, + } identification and selection of
a suitable adoptive placement for the child or ward { - when
adoption is the concurrent case plan - } .
(4) In addition to findings of fact required by subsection (2)
of this section, the court may order the Department of Human
Services to consider additional information in developing the
case plan or concurrent case plan.
(5) Any final decision of the court made pursuant to the
hearing provided in subsection (1) of this section is appealable
under ORS 419A.200.
SECTION 8. ORS 419B.476 is amended to read:
419B.476. (1) A permanency hearing shall be conducted in the
manner provided in ORS 418.312, 419B.310, 419B.812 to 419B.839
and 419B.908, except that the court may receive testimony and
reports as provided in ORS 419B.325.
(2) At a permanency hearing the court shall:
(a) If the case plan at the time of the hearing is to reunify
the family, determine whether the Department of Human Services
has made reasonable efforts or, if the Indian Child Welfare Act
applies, active efforts to make it possible for the ward to
safely return home and whether the parent has made sufficient
progress to make it possible for the ward to safely return home.
In making its determination, the court shall consider the ward's
health and safety the paramount concerns.
(b) If the case plan at the time of the hearing is something
other than to reunify the family, determine whether the
department has made reasonable efforts to place the ward in a
timely manner in accordance with the plan { + , including, if
appropriate, reasonable efforts to place the ward through an
interstate placement, + } and to complete the steps necessary to
finalize the permanent placement.
{ + (c) If the case plan at the time of the hearing is
something other than to reunify the family, determine whether the
department has considered permanent placement options for the
ward, including, if appropriate, whether the department has
considered both permanent in-state placement options and
permanent interstate placement options for the ward. + }
(3)(a) In the circumstances described in paragraph (b) of this
subsection, in addition to making the determination required by
subsection (2)(a) or (b) of this section, at a permanency hearing
the court shall review the comprehensive plan for the ward's
transition to independent living and determine and make findings
as to:
(A) Whether the plan is adequate to ensure the ward's
successful transition to independent living;
(B) Whether the department has offered appropriate services
pursuant to the plan; and
Enrolled House Bill 2190 (HB 2190-B) Page 7
(C) Whether the department has involved the ward in the
development of the plan.
(b) The requirements of paragraph (a) of this subsection apply
when:
(A) The ward is 16 years of age or older; or
(B) The ward is 14 years of age or older and there is a
comprehensive plan for the ward's transition to independent
living.
(4) At a permanency hearing the court may:
(a) If the case plan changed during the period since the last
review by a local citizen review board or court hearing and a
plan to reunify the family was in effect for any part of that
period, determine whether the department has made reasonable
efforts or, if the Indian Child Welfare Act applies, active
efforts to make it possible for the ward to safely return home.
In making its determination, the court shall consider the ward's
health and safety the paramount concerns;
(b) If the case plan changed during the period since the last
review by a local citizen review board or court hearing and a
plan other than to reunify the family was in effect for any part
of that period, determine whether the department has made
reasonable efforts to place the ward in a timely manner in
accordance with the plan { + , including, if appropriate,
placement of the ward through an interstate placement, + } and to
complete the steps necessary to finalize the permanent placement;
(c) If the court determines that further efforts will make it
possible for the ward to safely return home within a reasonable
time, order that the parents participate in specific services for
a specific period of time and make specific progress within that
period of time;
(d) Determine the adequacy and compliance with the case plan
and the case progress report;
(e) Review the efforts made by the department to develop the
concurrent permanent plan, including but not limited to
{ - , - } { + identification of appropriate permanent in-state
placement options and appropriate permanent interstate placement
options and, if adoption is the concurrent case plan, + }
identification and selection of a suitable adoptive placement for
the ward;
(f) Order the department to develop or expand the case plan or
concurrent permanent plan and provide a case progress report to
the court and other parties within 10 days after the permanency
hearing;
(g) Order the department or agency to modify the care,
placement and supervision of the ward;
(h) Order the local citizen review board to review the status
of the ward prior to the next court hearing; or
(i) Set another court hearing at a later date.
(5) The court shall enter an order within 20 days after the
permanency hearing. In addition to any determinations or orders
the court may make under subsection (4) of this section, the
order shall include:
(a) The court's determination required under subsections (2)
and (3) of this section, including a brief description of the
efforts the department has made with regard to the case plan in
effect at the time of the permanency hearing;
(b) The court's determination of the permanency plan for the
ward that includes whether and, if applicable, when:
(A) The ward will be returned to the parent;
Enrolled House Bill 2190 (HB 2190-B) Page 8
(B) The ward will be placed for adoption, and a petition for
termination of parental rights will be filed;
(C) The ward will be referred for establishment of legal
guardianship; or
(D) The ward will be placed in another planned permanent living
arrangement;
(c) If the court determines that the permanency plan for the
ward should be to return home because further efforts will make
it possible for the ward to safely return home within a
reasonable time, the court's determination of the services in
which the parents are required to participate, the progress the
parents are required to make and the period of time within which
the specified progress must be made;
(d) If the court determines that the permanency plan for the
ward should be adoption, the court's determination of whether one
of the circumstances in ORS 419B.498 (2) is applicable;
(e) If the court determines that the permanency plan for the
ward should be establishment of a legal guardianship or placement
with a fit and willing relative, the court's determination of why
neither placement with parents nor adoption is appropriate;
(f) If the court determines that the permanency plan for the
ward should be a planned permanent living arrangement, the
court's determination of a compelling reason, that must be
documented by the department, why it would not be in the best
interests of the ward to be returned home, placed for adoption,
placed with a legal guardian or placed with a fit and willing
relative;
(g) If the current placement is not expected to be permanent,
the court's projected timetable for return home or for placement
in another planned permanent living arrangement. If the timetable
set forth by the court is not met, the department shall promptly
notify the court and parties; { - and - }
(h) If an Indian child is involved, the tribal affiliation of
the ward { - . - } { + ; and
(i) If the ward has been placed in an interstate placement, the
court's determination of whether the interstate placement
continues to be appropriate and in the best interests of the
ward. + }
(6) If an Indian child is involved, the court shall follow the
placement preference established by the Indian Child Welfare Act.
(7) Any final decision of the court made pursuant to the
permanency hearing is appealable under ORS 419A.200. On appeal of
a final decision of the court under this subsection, the court's
finding, if any, under ORS 419B.340 (5) that the department is
not required to make reasonable efforts to make it possible for
the ward to safely return home is an interlocutory order to which
a party may assign error.
SECTION 9. ORS 419B.875 is amended to read:
419B.875. (1)(a) Parties to proceedings in the juvenile court
under ORS 419B.100 and 419B.500 are:
(A) The child or ward;
(B) The parents or guardian of the child or ward;
(C) A putative father of the child or ward who has demonstrated
a direct and significant commitment to the child or ward by
assuming, or attempting to assume, responsibilities normally
associated with parenthood, including but not limited to:
(i) Residing with the child or ward;
(ii) Contributing to the financial support of the child or
ward; or
(iii) Establishing psychological ties with the child or ward;
Enrolled House Bill 2190 (HB 2190-B) Page 9
(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;
and
(H) The tribe in cases subject to the Indian Child Welfare Act
if the tribe has intervened pursuant to the Indian Child Welfare
Act.
(b) An intervenor who is granted intervention under ORS
419B.116 is a party to a proceeding under ORS 419B.100. An
intervenor under this paragraph is not a party to a proceeding
under ORS 419B.500.
(2) 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)(b) 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.
(3) A putative father who satisfies the criteria set out in
subsection (1)(a)(C) of this section shall be treated as a
parent, as that term is used in this chapter and ORS chapters
419A and 419C, until the court confirms his paternity or finds
that he is not the legal father of the child or ward.
(4) If no appeal from the judgment or order is pending, a
putative father whom a court of competent jurisdiction has found
not to be the child or ward's legal father or who has filed a
petition for filiation that was dismissed is not a party under
subsection (1) of this section.
(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.
(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 - } { + proceeding + }
concerning the child or ward { - and the court shall give the
person an opportunity to be heard - } . { + A foster parent,
preadoptive parent or relative providing care for a child or ward
has the right to be heard at the proceeding. + } 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 - } { + the right + } to be heard { +
at the proceeding + }.
(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
Enrolled House Bill 2190 (HB 2190-B) Page 10
juvenile court proceeding solely because of notice and an
opportunity to be heard.
(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 10. ORS 419B.918 is amended to read:
419B.918. (1) Notwithstanding ORS 419B.815, 419B.819 and
419B.820, on timely motion of a person showing good cause, a
court may permit the person, instead of appearing personally, to
participate in any hearing related to a petition alleging
jurisdiction under ORS 419B.100, a petition to establish a
permanent guardianship under ORS 419B.365 or a petition seeking
termination of parental rights under ORS 419B.500, 419B.502,
419B.504, 419B.506 or 419B.508 in any manner that complies with
the requirements of due process including, but not limited to,
telephonic or other electronic means.
(2) If a person who is summoned or ordered to appear under ORS
419B.815, 419B.816, 419B.819 or 419B.820 seeks to reschedule any
hearing at which the person is required to appear, the person
must:
(a) Appear personally at the time specified in the summons or
order to request the change; or
(b) Include in the person's written motion requesting the
change the person's current mailing address, to which the court
may send notice of the new date for the hearing if the motion is
granted.
{ + (3) In any proceeding that involves the interstate
placement of a child or ward, the court may:
(a) Permit a party from outside this state to provide
information, testify or otherwise participate in the proceeding
in any manner the court designates, provided the party complies
with subsection (1) of this section, if applicable;
(b) Permit an attorney from outside this state representing any
party to participate in the proceeding in any manner the court
designates; and
(c) Obtain information or testimony in any manner the court
designates from a state or private agency located in another
state. + }
SECTION 11. ORS 107.135 is amended to read:
107.135. (1) The court may at any time after a judgment of
annulment or dissolution of marriage or of separation is granted,
upon the motion of either party and after service of notice on
the other party in the manner provided by ORCP 7, and after
notice to the Division of Child Support when required under
subsection (9) of this section:
(a) Set aside, alter or modify any portion of the judgment that
provides for the appointment and duties of trustees, for the
custody, parenting time, visitation, support and welfare of the
minor children and the children attending school, as defined in
ORS 107.108, including any health or life insurance provisions,
for the support of a party or for life insurance under ORS
107.820 or 107.830;
(b) Make an order, after service of notice to the other party,
providing for the future custody, support and welfare of minor
children residing in the state, who, at the time the judgment was
given, were not residents of the state, or were unknown to the
court or were erroneously omitted from the judgment;
(c) Terminate a duty of support toward any minor child who has
become self-supporting, emancipated or married;
Enrolled House Bill 2190 (HB 2190-B) Page 11
(d) After service of notice on the child in the manner provided
by law for service of a summons, suspend future support for any
child who has ceased to be a child attending school as defined in
ORS 107.108; and
(e) Set aside, alter or modify any portion of the judgment that
provides for a property award based on the enhanced earning
capacity of a party that was awarded before October 23, 1999. A
property award may be set aside, altered or modified under this
paragraph:
(A) When the person with the enhanced earning capacity makes a
good faith career change that results in less income;
(B) When the income of the person with the enhanced earning
capacity decreases due to circumstances beyond the person's
control; or
(C) Under such other circumstances as the court deems just and
proper.
(2) When a party moves to set aside, alter or modify the child
support provisions of the judgment:
(a) The party shall state in the motion, to the extent known:
(A) Whether there is pending in this state or any other
jurisdiction any type of support proceeding involving children of
the marriage, including one brought under ORS 25.287, 107.431,
109.100, 125.025, 416.400 to 416.465, 419B.400 or 419C.590 or ORS
chapter 110; and
(B) Whether there exists in this state or any other
jurisdiction a support order, as defined in ORS 110.303,
involving children of the marriage, other than the judgment the
party is moving to set aside, alter or modify.
(b) The party shall include with the motion a certificate
regarding any pending support proceeding and any existing support
order other than the judgment the party is moving to set aside,
alter or modify. The party shall use a certificate that is in a
form established by court rule and include information required
by court rule and paragraph (a) of this subsection.
(3) In a proceeding under this section to reconsider the
spousal or child support provisions of the judgment, the
following provisions apply:
(a) A substantial change in economic circumstances of a party,
which may include, but is not limited to, a substantial change in
the cost of reasonable and necessary expenses to either party, is
sufficient for the court to reconsider its order of support,
except that an order of compensatory spousal support may only be
modified upon a showing of an involuntary, extraordinary and
unanticipated change in circumstances that reduces the earning
capacity of the paying spouse.
(b) If the judgment provided for a termination or reduction of
spousal support at a designated age in anticipation of the
commencement of pension, Social Security or other entitlement
payments, and if the obligee is unable to obtain the anticipated
entitlement payments, that inability is sufficient change in
circumstances for the court to reconsider its order of support.
(c) If Social Security is considered in lieu of spousal support
or partial spousal support, the court shall determine the amount
of Social Security the party is eligible to collect. The court
shall take into consideration any pension, retirement or other
funds available to either party to effect an equitable
distribution between the parties and shall also take into
consideration any reduction of entitlement caused by taking early
retirement.
Enrolled House Bill 2190 (HB 2190-B) Page 12
(4) In considering under this section whether a change in
circumstances exists sufficient for the court to reconsider
spousal or child support provisions of a judgment, the following
provisions apply:
(a) The court or administrator, as defined in ORS 25.010, shall
consider income opportunities and benefits of the respective
parties from all sources, including but not limited to:
(A) The reasonable opportunity of each party, the obligor and
obligee respectively, to acquire future income and assets.
(B) Retirement benefits available to the obligor and to the
obligee.
(C) Other benefits to which the obligor is entitled, such as
travel benefits, recreational benefits and medical benefits,
contrasted with benefits to which the obligee is similarly
entitled.
(D) Social Security benefits paid to a child, or to a
representative payee administering the funds for the child's use
and benefit, as a result of the obligor's disability or
retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before May 12,
2003.
(E) Apportioned Veterans' benefits or Survivors' and
Dependents' Educational Assistance under 38 U.S.C. chapter 35
paid to a child, or to a representative payee administering the
funds for the child's use and benefit, as a result of the
obligor's disability or retirement if the benefits:
(i) Were not previously considered in the child support order;
or
(ii) Were considered in an action initiated before May 12,
2003.
(b) If the motion for modification is one made by the obligor
to reduce or terminate support, and if the obligee opposes the
motion, the court shall not find a change in circumstances
sufficient for reconsideration of support provisions, if the
motion is based upon a reduction of the obligor's financial
status resulting from the obligor's taking voluntary retirement,
partial voluntary retirement or any other voluntary reduction of
income or self-imposed curtailment of earning capacity, if it is
shown that such action of the obligor was not taken in good faith
but was for the primary purpose of avoiding the support
obligation. In any subsequent motion for modification, the court
shall deny the motion if the sole basis of the motion for
modification is the termination of voluntarily taken retirement
benefits and the obligor previously has been found not to have
acted in good faith.
(c) The court shall consider the following factors in deciding
whether the actions of the obligor were not in 'good faith':
(A) Timing of the voluntary retirement or other reduction in
financial status to coincide with court action in which the
obligee seeks or is granted an increase in spousal support.
(B) Whether all or most of the income producing assets and
property were awarded to the obligor, and spousal support in lieu
of such property was awarded to the obligee.
(C) Extent of the obligor's dissipation of funds and assets
prior to the voluntary retirement or soon after filing for the
change of circumstances based on retirement.
Enrolled House Bill 2190 (HB 2190-B) Page 13
(D) If earned income is reduced and absent dissipation of funds
or large gifts, whether the obligor has funds and assets from
which the spousal support could have been paid.
(E) Whether the obligor has given gifts of substantial value to
others, including a current spouse, to the detriment of the
obligor's ability to meet the preexisting obligation of spousal
support.
(5) Upon terminating a duty of spousal support, a court shall
make specific findings of the basis for the termination and shall
include the findings in the judgment order.
(6) Any modification of child or spousal support granted
because of a change of circumstances may be ordered effective
retroactive to the date the motion for modification was served or
to any date thereafter.
(7) The judgment is final as to any installment or payment of
money that has accrued up to the time the nonmoving party, other
than the state, is served with a motion to set aside, alter or
modify the judgment. The court may not set aside, alter or modify
any portion of the judgment that provides for any payment of
money, either for minor children or for the support of a party,
that has accrued before the motion is served. However:
(a) The court may allow a credit against child support
arrearages for periods of time, excluding reasonable parenting
time unless otherwise provided by order or judgment, during which
the obligor, with the knowledge and consent of the obligee or
pursuant to court order, has physical custody of the child; and
(b) The court may allow, as provided in the rules of the Child
Support Program, a dollar-for-dollar credit against child support
arrearages for any lump sum Social Security or Veterans' benefits
paid retroactively to the child, or to a representative payee
administering the funds for the child's use and benefit, as a
result of an obligor's disability or retirement.
(8) In a proceeding under subsection (1) of this section, the
court may assess against either party a reasonable attorney fee
and costs for the benefit of the other party. If a party is found
to have acted in bad faith, the court shall order that party to
pay a reasonable attorney fee and costs of the defending party.
(9) Whenever a motion to establish, modify or terminate child
support or satisfy or alter support arrearages is filed and the
child support rights of one of the parties or of a child of both
of the parties have been assigned to the state, a true copy of
the motion shall be served by mail or personal delivery on the
Administrator of the Division of Child Support of the Department
of Justice or on the branch office providing support services to
the county in which the motion is filed.
(10)(a) Except as provided in ORS 109.701 to 109.834, the
courts of Oregon, having once acquired personal and subject
matter jurisdiction in a domestic relations action, retain such
jurisdiction regardless of any change of domicile.
(b) The courts of Oregon, in a proceeding to establish, enforce
or modify a child support order, shall recognize the provisions
of the federal Full Faith and Credit for Child Support Orders Act
(28 U.S.C. 1738B).
(11) In a proceeding under this section to reconsider
provisions in a judgment relating to custody or parenting time,
the court may consider repeated and unreasonable denial of, or
interference with, parenting time to be a substantial change of
circumstances.
(12) In a proceeding under this section to reconsider
provisions in a judgment relating to parenting time, the court
Enrolled House Bill 2190 (HB 2190-B) Page 14
may suspend or terminate a parent's parenting time with a child
if the court finds that the parent has abused a controlled
substance and that the parenting time is not in the best
interests of the child. If a court has suspended or terminated a
parent's parenting time with a child for reasons described in
this subsection, the court may not grant the parent future
parenting time until the parent has shown that the reasons for
the suspension or termination are resolved and that reinstated
parenting time is in the best interests of the child. Nothing in
this subsection limits the court's authority under subsection
(1)(a) of this section.
{ + (13) In a proceeding under this section to reconsider
provisions in a judgment relating to custody, temporary placement
of the child by the custodial parent pursuant to ORS 109.056 (3)
with the noncustodial parent as a result of military deployment
of the custodial parent is not, by itself, a change of
circumstances. Any fact relating to the child and the parties
occurring subsequent to the last custody judgment, other than the
custodial parent's temporary placement of the child pursuant to
ORS 109.056 (3) with the noncustodial parent, may be considered
by the court when making a change of circumstances
determination. + }
{ - (13) - } { + (14) + } Within 30 days after service of
notice under subsection (1) of this section, the party served
shall file a written response with the court.
{ - (14)(a) - } { + (15)(a) + } It is the policy of this
state:
(A) To encourage the settlement of cases brought under this
section; and
(B) For courts to enforce the terms of settlements described in
paragraph (b) of this subsection to the fullest extent possible,
except when to do so would violate the law or would clearly
contravene public policy.
(b) In a proceeding under subsection (1) of this section, the
court may enforce the terms set forth in a stipulated order or
judgment signed by the parties, an order or judgment resulting
from a settlement on the record or an order or judgment
incorporating a settlement agreement:
(A) As contract terms using contract remedies;
(B) By imposing any remedy available to enforce an order or
judgment, including but not limited to contempt; or
(C) By any combination of the provisions of subparagraphs (A)
and (B) of this paragraph.
(c) A party may seek to enforce an agreement and obtain
remedies described in paragraph (b) of this subsection by filing
a motion, serving notice on the other party in the manner
provided by ORCP 7 and, if a remedy under paragraph (b)(B) of
this subsection is sought, complying with the statutory
requirements for that remedy. All claims for relief arising out
of the same acts or omissions must be joined in the same
proceeding.
(d) Nothing in paragraph (b) or (c) of this subsection limits a
party's ability, in a separate proceeding, to file a motion to
modify an order or judgment under subsection (1) of this section
or to seek enforcement of an ancillary agreement to the order or
judgment.
SECTION 12. { + The amendments to ORS 107.135 by section 11 of
this 2007 Act apply to motions filed on or after the effective
date of this 2007 Act. + }
----------
Enrolled House Bill 2190 (HB 2190-B) Page 15
Passed by House May 7, 2007
Repassed by House June 8, 2007
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 6, 2007
...........................................................
President of Senate
Enrolled House Bill 2190 (HB 2190-B) Page 16
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled House Bill 2190 (HB 2190-B) Page 17