74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 531
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)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Permits juvenile court to order Department of Human Services to
receive temporary custody of child or ward. Permits juvenile
court to direct ward under protective supervision or family of
ward under protective supervision to participate in counseling or
other services to correct circumstance giving rise to need for
protective supervision.
A BILL FOR AN ACT
Relating to custody of children; amending ORS 419B.185, 419B.331,
419B.368, 419B.373 and 419B.875.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 419B.185 is amended to read:
419B.185. (1) When a child or ward is taken, or is about to be
taken, into protective custody pursuant to ORS 419B.150,
419B.160, 419B.165, 419B.168 and 419B.171 and placed in detention
or shelter care, a parent, child or ward shall be given the
opportunity to present evidence to the court at the hearings
specified in ORS 419B.183, and at any subsequent review hearing,
that the child or ward 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. At { - the - }
{ + a + } hearing { + held pursuant to ORS 419B.183 + }:
{ + (a) The court may order that the child or ward be placed
or continued in the temporary custody of the Department of Human
Services for placement in shelter care or that the child or ward
remain in or be returned to the custody of a parent or other
reasonable person pending investigation or disposition. + }
{ - (a) - } { + (b) + } { + If the court orders that the
child or ward be placed or continued in the temporary custody of
the department for placement in shelter care, + } the court shall
make written findings as to whether the department { - of Human
Services - } has made reasonable efforts or, if the Indian Child
Welfare Act applies, active efforts to prevent or eliminate the
need for removal of the child or ward from the home and to make
it possible for the child or ward to safely return home. When the
court finds that no services were provided but that reasonable
services would not have eliminated the need for protective
custody, the court shall consider the department to have made
reasonable efforts or, if the Indian Child Welfare Act applies,
active efforts to prevent or eliminate the need for protective
custody. The court shall include in the written findings a brief
description of what preventive and reunification efforts were
made by the department.
{ - (b) - } { + (c) + } In determining whether a child or
ward shall be
{ - removed - } { + placed + } or continued { - out of
home - } { + in the temporary custody of the department for
placement in shelter care + }, the court shall consider whether
the provision of reasonable services can prevent or eliminate the
need to separate the family.
{ - (c) - } { + (d) + } In determining whether the
department has made reasonable efforts or, if the Indian Child
Welfare Act applies, active efforts to prevent or eliminate the
need for removal of the child or ward from the home and to make
it possible for the child or ward to safely return home, the
court shall consider the child or ward's health and safety the
paramount concerns.
{ - (d) - } { + (e) + } The court shall make a written
finding in every order of removal that describes why it is in the
best interests of the child or ward that the child or ward be
removed from the home or continued in care.
{ - (e) - } { + (f) + } The court shall determine whether
the child or ward is an Indian child as defined in ORS 419A.004
or in the applicable State-Tribal Indian Child Welfare Agreement.
{ - (f) - } { + (g) + } The 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 determinations and findings
required under this section. As used in this paragraph, 'relevant
evidence' has the meaning given that term in ORS 40.150.
(2) To aid the court in making the written findings required by
subsection (1) { - (a) and (d) - } of this section, the
department shall present written documentation to the court
outlining the reasonable or active efforts made to prevent taking
the child or ward into protective custody and to provide services
to make it possible for the child or ward to safely return home
and why protective custody is in the best interests of the child
or ward.
SECTION 2. ORS 419B.331 is amended to read:
419B.331. When the court determines it would be in the best
interest and welfare of a ward, the court may place the ward
under protective supervision. The court may direct { + as
conditions of protective supervision:
(1)(a) + }That the ward remain in { + or return to + } the
legal custody of the ward's parents { - or other person with
whom the ward is living, or the court may direct that the ward be
placed in the legal custody of some relative or some - } { + ;
or
(b) That the ward remain in or be placed in the legal custody
of:
(A) A relative;
(B) A + } person maintaining a foster home approved by the
court { - , or in - } { + ;
(C) + } A child care center or a youth care center authorized
to accept the ward { - . - } { + ; or
(D) Another person.
(2) + } { - The court may specify - } { + That + }
particular requirements { - to - } be observed during the
protective supervision { + period + } consistent with recognized
juvenile court practice, including but not limited to { + :
(a) Requirements that the ward's parents participate in
evaluation, assessment, treatment, training or other services to
correct the circumstances that resulted in wardship or to prepare
the parent to resume the care of the ward;
(b) Requirements that the ward participate in evaluation,
assessment, treatment, training or other services if
participation is in the ward's best interests;
(c) + } Restrictions on visitation by the ward's parents
{ - , - } { + ;
(d) + } Restrictions on the ward's associates, occupation and
activities { - , - } { + ;
(e) + } Restrictions on and requirements to be observed by the
person having the ward's legal custody, { - and - }
{ + including requirements that the ward's legal custodian
cooperate or assist in the provision of services required under
paragraph (b) of this subsection; and
(f) + } Requirements for visitation by and consultation with a
juvenile counselor or other suitable counselor.
SECTION 3. ORS 419B.368 is amended to read:
419B.368. (1) The court, on its own motion or upon the motion
of a party and after such hearing as the court may direct, may
review, modify or vacate a guardianship order.
(2) The court may modify a guardianship order if the court
determines to do so would be in the child's best interests.
(3) The court may vacate a guardianship order, return the child
to the custody of a parent and make any other order the court is
authorized to make under this chapter if the court determines
that:
(a) It is in the child's best interests to vacate the
guardianship;
(b) The conditions and circumstances giving rise to the
establishment of the guardianship have been ameliorated; and
(c) The parent is presently able and willing to adequately care
for the child.
(4) The court may vacate a guardianship order after determining
that the guardian is no longer willing or able to fulfill the
duties of a guardian. Upon vacating a guardianship order under
this subsection, the court shall conduct a hearing:
(a) Within 14 days, make written findings required in ORS
419B.185 (1) { - (a) to (d) - } and make any order directing
disposition of the child that the court is authorized to make
under this chapter; and
(b) Pursuant to ORS 419B.476 within 90 days.
(5) In determining whether it is in the child's best interests
to modify or vacate a guardianship, the court shall consider, but
is not limited to considering:
(a) The child's emotional and developmental needs;
(b) The child's need to maintain existing attachments and
relationships and to form attachments and relationships,
including those with the birth family;
(c) The child's health and safety; and
(d) The child's wishes.
(6) In addition to service required under ORS 419B.851, a party
filing a motion to vacate a guardianship shall serve the motion
upon the Department of Human Services.
(7) Notwithstanding subsection (1) of this section, a parent
may not move the court to vacate a guardianship once a
guardianship is granted under ORS 419B.365.
SECTION 4. ORS 419B.373 is amended to read:
419B.373. A person, agency or institution having { + temporary
custody of a child or ward under ORS 419B.185 or + } legal
custody of a ward { + under ORS 419B.331 or 419B.337 + } has the
following duties and authority:
(1) To have physical custody and control of the { + child
or + } ward.
(2) To supply the { + child or + } ward with food, clothing,
shelter and incidental necessaries.
(3) To provide the { + child or + } ward with care, education
and discipline.
(4) To authorize ordinary medical, dental, psychiatric,
psychological, hygienic or other remedial care and treatment for
the { + child or + } ward { - , - } and, in an emergency where
the { + child or + } ward's safety appears urgently to require
it, to authorize surgery or other extraordinary care.
(5) To make such reports and to supply such information to the
court as the court may from time to time require.
(6) To apply for any Social Security benefits or public
assistance to which the { + child or + } ward is otherwise
entitled and to use the benefits or assistance to pay for the
care of the { + child or + } ward.
SECTION 5. 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;
(D) The state;
(E) The juvenile department;
(F) A court appointed special advocate, if appointed;
(G) The Department of Human Services { - or other - } { +
if the department has filed a petition alleging that the child is
within the jurisdiction of the court and the petition is pending
before the court or if the department has temporary or legal
custody of the child or ward;
(H) A + }child-caring agency if the agency has temporary
custody of the child or ward; and
{ - (H) - } { + (I) + } 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) The department is not a party to a proceeding under
ORS 419B.100 solely because the department is providing
evaluation, assessment, treatment, training or other services to
the parent or ward. + }
{ - (6) - } { + (7) + } If a foster parent, preadoptive
parent or relative is currently providing care for a child or
ward, the department
{ - of Human Services - } shall give the foster parent,
preadoptive parent or relative notice of a hearing concerning the
child or ward and the court shall give the person an opportunity
to be heard. Except when allowed to intervene, the foster parent,
preadoptive parent or relative providing care for the child or
ward is not considered a party to the juvenile court proceeding
solely because of notice and an opportunity to be heard.
{ - (7) - } { + (8) + } When a legal grandparent of a child
or ward requests in writing and provides a mailing address, the
department
{ - of Human Services - } shall give the legal grandparent
notice of a hearing concerning the child or ward and the court
shall give the legal grandparent an opportunity to be heard.
Except when allowed to intervene, a legal grandparent is not
considered a party to the juvenile court proceeding solely
because of notice and an opportunity to be heard.
{ - (8) - } { + (9) + } Interpreters for parties and
persons granted rights of limited participation shall be
appointed in the manner specified by ORS 45.275 and 45.285.
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