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 1132
A-Engrossed
Senate Bill 320
Ordered by the Senate April 5
Including Senate Amendments dated April 5
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Judiciary for Oregon Law Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Establishes standards and procedures for determining whether
youth against whom delinquency petition is filed is unfit to
proceed.
A BILL FOR AN ACT
Relating to fitness of youth to proceed on delinquency petition.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) A youth may be found unfit to proceed in a
proceeding initiated by a petition alleging jurisdiction under
ORS 419C.005 if, as a result of mental disease or defect or
another condition, the youth is unable:
(a) To understand the nature of the proceedings against the
youth;
(b) To assist and cooperate with the counsel for the youth; or
(c) To participate in the defense of the youth.
(2) A court may not base a finding of unfitness to proceed
solely on any of the following factors:
(a) The current inability of the youth to remember the acts
alleged in the petition;
(b) Evidence that the youth committed the acts alleged in the
petition while the youth was under the influence of intoxicants
or medication; or
(c) The age of the youth. + }
SECTION 2. { + (1) The issue of fitness to proceed under
section 1 of this 2007 Act shall be raised by written motion
filed by a party, or by motion of the court, and may be raised at
any time after the filing of the petition. When the issue of
fitness has been raised, the court shall stay the proceedings on
the petition and order the youth to participate in an evaluation
to determine the youth's fitness to proceed if:
(a) There is reason to doubt the youth's fitness to proceed;
and
(b) There is probable cause to believe that the factual
allegations contained in the petition are true.
(2)(a) An evaluation under this section must be conducted by a
psychiatrist, a licensed psychologist or a licensed clinical
social worker. The moving party shall notify the court and other
parties of the date, time and location of the evaluation and the
name of the evaluator. A party or the court may submit written
information to the evaluator for consideration. When written
information is submitted to the evaluator that has not been
provided to the court or opposing party, the party submitting the
written information to the evaluator shall provide the written
information to the court and opposing party.
(b) Upon motion of the court or upon a motion filed by the
youth if the youth is determined by the court to be financially
eligible under the policies, procedures, standards and guidelines
of the Public Defense Services Commission, a county or justice
court shall order the county to pay, and a circuit court shall
order the public defense services executive director to pay from
funds available for the purpose:
(A) A reasonable fee if the evaluation of the youth is
conducted by a psychiatrist, psychologist or clinical social
worker in private practice; and
(B) All costs, including transportation of the youth, if the
evaluation is conducted by a psychiatrist, psychologist or
clinical social worker in the employ of the Department of Human
Services or a community mental health and developmental
disabilities program established under ORS 430.610 to 430.670.
(c) When an evaluation is ordered at the request of or with the
acquiescence of a youth who is determined not to be financially
eligible under the policies, procedures, standards and guidelines
of the Public Defense Services Commission, the evaluation shall
be performed at the youth's expense.
(d) When an evaluation is ordered at the request of the
prosecution, the county shall pay for the expense of the
evaluation.
(e) The youth may not be removed from the youth's current
placement for an evaluation unless:
(A) Reasonable efforts are made to conduct the evaluation at
the youth's current placement;
(B) The court finds the removal necessary for the evaluation;
and
(C) The court finds the removal is in the best interests of the
youth.
(f) If the court concludes that the youth must be removed from
the youth's current placement, the court must make written
findings that the department has made reasonable efforts or, if
the Indian Child Welfare Act applies, active efforts to prevent
the need for removal of the youth from the youth's current
placement and to make it possible for the youth to safely return
to the youth's current placement upon completion of the
evaluation. If the court finds that the department has not
provided services, but that reasonable services would not have
eliminated the need for removal, the court shall find that the
department has made reasonable efforts or, if the Indian Child
Welfare Act applies, active efforts to prevent the need for
removal. The court shall include in the written findings a brief
description of what preventive and reunification efforts were
made by the department.
(g) Unless ordered by the court upon a finding of good cause, a
removal under this subsection may not exceed 10 judicial days.
(3)(a) A report on the youth's fitness to proceed shall be
filed with the court in triplicate with the clerk of the court.
The clerk of the court shall cause copies to be delivered to the
district attorney and to counsel for the youth. The report shall
include:
(A) A description of the nature of the evaluation.
(B) A list of information that the evaluator has reviewed as
part of the evaluation.
(C) The evaluator's opinion as to the youth's fitness to
proceed as described in section 1 of this 2007 Act, including
whether the youth suffers from a mental disease or defect or
other condition.
(D) If the evaluator is of the opinion that the youth is unfit
to proceed, the evaluator's opinion regarding whether there is a
substantial probability that the youth is able to gain or regain
fitness to proceed and, if able to gain or regain fitness to
proceed, the specific restorative services that are needed and
the anticipated duration of those services.
(b) The report may not include statements made by the youth
about the facts alleged in the petition.
(c) Statements by the youth made during the evaluation to the
evaluator or to persons involved in the evaluation about the
facts alleged in the petition are not admissible against the
youth in any proceeding relating to the petition.
(d) The report shall be filed with the court within 30 days of
the request for the evaluation unless extended by written court
order for good cause for no more than an additional 30 days.
(e) Notwithstanding ORS 419A.255, the department shall be
provided copies of the evaluation and petition upon request.
(4)(a) A party objecting to any part of the report filed under
subsection (3) of this section shall file written objection
within 14 days of receipt of the report. The objection must state
whether the party seeks another evaluation. If a party files an
objection, the court shall hold a hearing within 21 days of the
filing of the objection. The court may postpone the hearing for
good cause shown.
(b) If no objection is filed and the court adopts the findings
and recommendations of the report, the court shall issue a
written order within 10 days after the expiration of the period
described in paragraph (a) of this subsection.
(c) If no objection is filed and the court does not adopt the
findings or recommendations of the report, the court shall hold a
hearing within 21 days after the period described in paragraph
(a) of this subsection. The court may postpone the hearing for
good cause shown.
(d) When a hearing is held under this subsection, the moving
party must establish that the youth is unfit to proceed by a
preponderance of competent evidence. The court shall make a
determination and issue a written order within 10 days after the
hearing. The order must set forth the findings on the youth's
fitness to proceed.
(5)(a) If the court finds that the youth is fit to proceed, the
court shall vacate the stay.
(b) If the court finds that the youth is unfit to proceed and
unable to benefit from restorative services, the court shall
enter the findings and shall:
(A) Immediately dismiss the petition without prejudice; or
(B) If necessary for planning or instituting an alternative
proceeding, dismiss the petition effective within five days.
(c)(A) If the court finds the youth is unfit to proceed and the
youth is able to benefit from restorative services, the court
shall continue the order staying the proceedings. The court shall
forward the order to the department. The department shall
implement restorative services within 30 days of receipt of the
order. The department shall send a report to the court, with
copies to the parties, no later than 90 days after receipt of the
order. The report shall describe the nature and duration of
services provided, shall indicate whether the youth has been
restored or is capable of restoration and shall recommend whether
services should be continued and, if so, the type and duration of
the services.
(B) Upon recommendation of the department or the request of a
party or on motion of the court, the court may hold a review
hearing at any time. After a hearing, or if no hearing is
requested or recommended, within 14 days of the receipt of the
initial report required by this paragraph, or of any subsequent
report under this paragraph, the court shall determine whether
the youth is fit to proceed.
(C) If the court concludes under subparagraph (B) of this
paragraph that the youth is fit to proceed, the court shall
vacate the stay.
(D) If the court concludes under subparagraph (B) of this
paragraph that the youth remains unfit to proceed and the youth
is unable to benefit from restorative services, the court shall
proceed as provided in paragraph (b) of this subsection.
(E) If the court concludes that the youth remains unfit to
proceed, but that the youth is able to benefit from restorative
services, the court shall order that restorative services be
continued. The court shall order the department to send a report
described in this paragraph to the court, with copies to the
parties, within a specified time, not to exceed 90 days.
(d) The youth may not be removed from the youth's current
placement for restorative services under this subsection unless
the court makes written findings that:
(A) The department has made reasonable efforts to administer
restorative services at the youth's current placement;
(B) Removal is necessary for restorative services; and
(C) Removal is in the best interests of the youth.
(e) If the court concludes that the youth must be removed from
the youth's current placement, the court must make written
findings that the department has made reasonable efforts or, if
the Indian Child Welfare Act applies, active efforts to prevent
the need for removal of the youth from the youth's current
placement and to make it possible for the youth to safely return
to the youth's current placement upon completion of the
restorative services. If the court finds that the department has
not provided services, but that reasonable services would not
have eliminated the need for removal, the court shall find that
the department has made reasonable efforts or, if the Indian
Child Welfare Act applies, active efforts to prevent the need for
removal. The court shall include in the written findings a brief
description of what preventive and reunification efforts were
made by the department.
(f) If the court determines that a youth who has received
restorative services remains unfit to proceed, the youth shall be
discharged within a period of time that is reasonable for making
a determination concerning whether the youth may gain or regain
capacity. Regardless of the number of acts in the petition that
the youth is alleged to have committed, in no event may the youth
be continued in restorative services for longer than whichever of
the following, measured from the date the petition was filed, is
shorter:
(A) Three years; or
(B) A period of time equal to the maximum commitment the court
could have imposed if the petition had been adjudicated.
(g) If the court orders placement for restorative services, the
court may specify the type of care, supervision, security or
services to be provided by the department to any youth placed in
the department's custody and to the parents or guardians of the
youth, but the department has the responsibility for the actual
planning and provision of the care, supervision, security or
services of the youth. The department may place the youth in any
facility authorized to accept the youth and provide the necessary
service or care.
(6) The department shall:
(a) Develop training standards for persons providing evaluation
services under this section;
(b) Develop guidelines for conducting evaluations; and
(c) Provide courts with a current list of qualified evaluators
from which an evaluator may be selected. Neither the parties nor
the court is required to choose an evaluator from the list
provided by the department.
(7) The department shall adopt rules necessary to carry out the
provisions of subsection (6) of this section. + }
SECTION 3. { + (1) The Department of Human Services shall
administer a program to provide restorative services to youths
who:
(a) Are determined unfit to proceed under section 2 of this
2007 Act; and
(b) Present a substantial probability of gaining or regaining
fitness to proceed in the foreseeable future.
(2) The department shall develop qualification standards for
persons who provide restorative services under this section. The
department shall solicit qualified applicants to provide
restorative services under this section.
(3) If a court orders restorative services under section 2 of
this 2007 Act, the department shall arrange or provide for
restorative services upon receipt of the order. The department
shall make a reasonable effort to provide restorative services to
the youth as ordered by the court. + }
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