69th OREGON LEGISLATIVE ASSEMBLY--1997 Regular Session
Enrolled
Senate Bill 689
Sponsored by Senators HAMBY, STULL; Senators BROWN, BRYANT,
BURDICK, CASTILLO, DERFLER, FISHER, GEORGE, GORDLY, MILLER,
TARNO, TIMMS, TROW, WILDE, Representatives L. BEYER, BOWMAN,
BRIAN, CORCORAN, COURTNEY, DEVLIN, EDWARDS, EIGHMEY, GARDNER,
HILL, JENSON, JOHNSTON, OAKLEY, PIERCY, PROZANSKI, REPINE,
TAYLOR, UHERBELAU, WELLS, WOOTEN (at the request of Best
Interest of the Child Legislative Work Group)
CHAPTER ................
AN ACT
Relating to children; creating new provisions; amending ORS
7.211, 109.119, 147.035, 418.782, 419A.002, 419A.004, 419B.005,
419B.020, 419B.115, 419B.150, 419B.185, 419B.260, 419B.343,
419B.500, 419B.502, 419B.504, 419B.506, 419B.521 and 419C.285;
and repealing section 133, chapter 249, Oregon Laws 1997
(Enrolled House Bill 2509).
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 419A.002 is amended to read:
419A.002. (1) The juvenile court is a court of record and
exercises jurisdiction as a court of general and equitable
jurisdiction and not as a court of limited or inferior
jurisdiction. The juvenile court is called 'The ______ Court
of ______ County, Juvenile Department. '
(2) It is the policy of the State of Oregon to recognize that
children are individuals who have legal rights { - and are not
chattels of their parents or guardians - } . The provisions of
this chapter and ORS chapters 419B and 419C shall be liberally
construed to the end that a child coming within the jurisdiction
of the court may receive such care, guidance, treatment and
control as will lead to the child's welfare and the protection of
the community. Although there is a strong preference that
children live in their own homes with their own families, the
state recognizes that this is not always possible or in the best
interests of the child or the public.
(3) The State of Oregon recognizes the value of the Indian
Child Welfare Act, 25 U.S.C. ss1901 to 1923, and hereby
incorporates the policies of that Act.
SECTION 2. { + Sections 2a and 3 of this Act are added to and
made a part of ORS chapter 419B. + }
SECTION 2a. { + (1) The juvenile court is a court of record
and exercises jurisdiction as a court of general and equitable
jurisdiction and not as a court of limited or inferior
jurisdiction. The juvenile court is called 'The ______ Court
of ______ County, Juvenile Department. '
Enrolled Senate Bill 689 (SB 689-B) Page 1
(2)(a) It is the policy of the State of Oregon to recognize
that children are individuals who have legal rights. Among those
rights are the right to:
(A) Permanency with a safe family;
(B) Freedom from physical, sexual or emotional abuse or
exploitation; and
(C) Freedom from substantial neglect of basic needs.
(b) Parents and guardians have a duty to afford their children
the rights listed in paragraph (a) of this subsection. Parents
and guardians have a duty to remove any impediment to their
ability to perform parental duties that afford these rights to
their children. When a parent or guardian fails to fulfill these
duties, the juvenile court may determine that it is in the best
interests of the child to remove the child from the parent or
guardian either temporarily or permanently under ORS 419B.100.
(c) The provisions of this chapter shall be liberally construed
to the end that a child coming within the jurisdiction of the
court may receive such care, guidance, treatment and control as
will lead to the child's welfare and the protection of the
community.
(3) It is the policy of the State of Oregon to guard the
liberty interest of parents protected by the Fourteenth Amendment
to the United States Constitution and to protect the rights and
interests of children, as provided in subsection (2) of this
section. The provisions of ORS chapter 419B shall be construed
and applied in compliance with federal constitutional limitations
on state action established by the United States Supreme Court
with respect to interference with the rights of parents to direct
the upbringing of their children, including, but not limited to:
(a) Guide the secular and religious education of their
children;
(b) Make health care decisions for their children; and
(c) Discipline their children.
(4) It is the policy of the State of Oregon, in those cases not
described as extreme conduct under ORS 419B.502, to offer
appropriate reunification services to parents and guardians to
allow them the opportunity to adjust their circumstances, conduct
or conditions to make return of the child possible within a
reasonable time. Although there is a strong preference that
children live in their own homes with their own families, the
state recognizes that it is not always possible or in the best
interests of the child or the public for children who have been
abused or neglected to be reunited with their parents or
guardians. In those cases, the State of Oregon has the obligation
to create or provide an alternative, safe and permanent home for
the child.
(5) The State of Oregon recognizes the value of the Indian
Child Welfare Act, 25 U.S.C. 1901 to 1923, and hereby
incorporates the policies of that Act. + }
SECTION 3. { + (1) At any time following establishment of
jurisdiction and wardship under ORS 419B.100, but prior to filing
of a petition under ORS 419B.500, the court may hear a petition
for permanent guardianship. If the state chooses not to
participate in a proceeding initiated by an intervenor under ORS
419B.115, the state is not foreclosed from filing a subsequent
action should the intervenor's petition be denied.
(2) Except as otherwise provided in this section, the juvenile
court shall hear the permanent guardianship case and follow the
procedures in ORS chapter 125.
Enrolled Senate Bill 689 (SB 689-B) Page 2
(3) The court shall appoint as a guardian a suitable person who
has petitioned the court to be appointed permanent guardian of
the child and who has standing under ORS 419B.115.
(4) The grounds for granting a permanent guardianship are the
same as those for termination of parental rights.
(5) The court shall grant a permanent guardianship if it finds
by clear and convincing evidence that:
(a) The grounds cited in the petition are true; and
(b) It is in the best interest of the child that the parent
never have physical custody of the child but that other parental
rights and duties should not be terminated.
(6) A person appointed permanent guardian has the duties and
authority of a guardian appointed under ORS chapter 125. The
annual report requirement in ORS 125.325 applies to a permanent
guardianship granted under this section.
(7) Upon its own motion or that of a parent, the child or the
guardian, the court granting the guardianship may at any time
enter orders regarding contact, visitation and child support when
the orders are appropriate and in the best interest of the child.
The court may modify or enforce the orders only if the party
seeking modification or enforcement has participated or attempted
to participate, in good faith, in mediation to resolve the
dispute that is the basis of the modification or enforcement
motion. The participation or attempted participation in mediation
must have occurred prior to filing the motion for modification or
enforcement. The court may require a person filing a motion under
this subsection to pay a reasonable filing fee.
(8) A parent may not petition the court to terminate a
guardianship once the guardianship is granted under this
section. + }
SECTION 4. 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' means a person within the jurisdiction of the
juvenile court as provided in ORS 419B.100.
(3) 'Child care center' means a residential facility for the
care and supervision of children that is licensed under the
provisions of ORS 418.240.
(4) 'Community service' has the meaning given that term in ORS
137.126.
(5) '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.
(6) 'Counselor' means a juvenile department counselor.
(7) 'Court' means the juvenile court.
(8) 'Court appointed special advocate' or 'CASA' means a person
appointed by the court pursuant to a CASA Volunteer Program to
act as special advocate for a child pursuant to ORS 419A.170.
(9) '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 dependent children or delinquent
youth pursuant to a judicial commitment or order.
(10) 'Director' means the director of a juvenile department
established under ORS 419A.010 to 419A.020 and 419A.050 to
419A.063.
(11) 'Division' means the Children's Services Division.
Enrolled Senate Bill 689 (SB 689-B) Page 3
(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;
(b) Eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe; or
(c) Covered by the terms of an Indian Child Welfare Act
agreement between Oregon and 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 of the
child and the legal or adoptive father of the child. A legal
father includes:
(a) A nonimpotent, nonsterile man who was cohabiting with his
wife, who is the mother of the child, at the time of conception;
(b) A man married to the mother of the child at the time of
birth, where there is no decree of separation and the presumption
of paternity has not been disputed;
(c) A biological father who marries the mother of the child
after the birth of the child;
(d) A biological father who has established or declared
paternity through filiation proceedings or under ORS 416.400 to
416.470; and
(e) A biological father who has, with the mother, established
paternity through a joint declaration of paternity under ORS
109.070.
{ + (17) 'Reasonable time' means a period of time that is
reasonable given a child's emotional and developmental needs and
ability to form and maintain lasting attachments. + }
{ - (17) - } { + (18) + } 'Records' means any information
in written form, pictures, photographs, charts, graphs,
recordings or documents pertaining to a case.
{ - (18) - } { + (19) + } 'Resides' or 'residence,' when
used in reference to the residence of a child or youth, means the
place where the child or youth is actually living or the
jurisdiction in which wardship of the child or youth has been
established.
{ - (19) - } { + (20) + } 'Restitution' has the meaning
given that term in ORS 137.103.
{ + (21) '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. + }
{ - (20) - } { + (22) + } 'Shelter care' means a home or
other facility suitable for the safekeeping of a child who is
taken into temporary custody pending investigation and
disposition where the circumstances are such that the child does
not need to be kept in secure custody.
{ - (21) - } { + (23) + } 'Substitute care' means an
out-of-home placement directly supervised by the division 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:
Enrolled Senate Bill 689 (SB 689-B) Page 4
(a) A detention facility, forestry camp or youth correction
facility;
(b) A family home which the court has approved as a child's
permanent placement, where a private child caring agency has been
appointed guardian of the child and where the child's care is
entirely privately financed; or
(c) In-home placement subject to conditions or limitations.
{ - (22) - } { + (24) + } 'Surrogate' means a person
appointed by the court to protect the right of the child to
receive procedural safeguards with respect to the provision of
free appropriate public education.
{ - (23) - } { + (25) + } '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.
{ - (24) - } { + (26) + } '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.
{ - (25) - } { + (27) + } 'Youth care center' has the
meaning given that term in ORS 420.855.
{ - (26) - } { + (28) + } 'Youth offender' means a person
at least 12 years of age and under 18 years of age who has been
found to be within the jurisdiction of the juvenile court under
ORS 419C.005.
SECTION 5. ORS 419B.502 is amended to read:
419B.502. The rights of the parent or parents may be terminated
as provided in ORS 419B.500 if the court finds that the parent or
parents are unfit by reason of a single or recurrent incident of
extreme conduct toward the child or another child and that
continuing the parent and child relationship is likely to result
in serious abuse or neglect. In such case, no efforts need to be
made by available social agencies to help the parent adjust the
conduct in order to make the return of the child possible. In
determining extreme conduct, the court shall consider the
following:
(1) Rape, sodomy or sex abuse of any child by the parent.
(2) Intentional starvation or torture of any child by the
parent.
(3) Abuse or neglect of any child resulting in death or serious
physical injury { - , as defined in ORS 161.015 - } .
(4) Previous terminations of the parent's rights to another
child if the conditions giving rise to the previous action have
not been ameliorated.
SECTION 6. ORS 419B.500 is amended to read:
419B.500. The parental rights of the parents of a child within
the jurisdiction of the juvenile court as provided in ORS
419B.100 may be terminated as provided in this section and ORS
419B.502 to 419B.524, { + only upon a petition filed by the
state or the child for the purpose of freeing the child for
adoption if the court finds + } { - if - } it is in the best
interest of the child. If an Indian child is involved, the
termination of parental rights must be in compliance with the
Indian Child Welfare Act. The rights of one parent may be
terminated without affecting the rights of the other parent.
SECTION 7. ORS 419B.504 is amended to read:
Enrolled Senate Bill 689 (SB 689-B) Page 5
419B.504. The rights of the parent or parents may be terminated
as provided in ORS 419B.500 if the court finds that the parent or
parents are unfit by reason of conduct or condition seriously
detrimental to the child and integration of the child into the
home of the parent or parents is improbable { - in the
foreseeable future - } { + within a reasonable time + } due to
conduct or conditions not likely to change. In determining such
conduct and conditions, the court shall consider but is not
limited to the following:
(1) Emotional illness, mental illness or mental deficiency of
the parent of such nature and duration as to render the parent
incapable of providing proper care for the child for extended
periods of time.
(2) Conduct toward any child of an abusive, cruel or sexual
nature.
(3) Addictive or habitual use of intoxicating liquors or
controlled substances to the extent that parental ability has
been substantially impaired.
(4) Physical neglect of the child.
(5) Lack of effort of the parent to adjust the circumstances of
the parent, conduct, or conditions to make the return of the
child possible or failure of the parent to effect a lasting
adjustment after reasonable efforts by available social agencies
for such extended duration of time that it appears reasonable
that no lasting adjustment can be effected.
{ + (6) Criminal conduct that impairs the parent's ability to
provide adequate care for the child. + }
SECTION 8. ORS 419B.506 is amended to read:
419B.506. The rights of the parent or parents may be terminated
as provided in ORS 419B.500 if the court finds that the parent or
parents have failed or neglected without reasonable and lawful
cause to provide for the basic physical and psychological needs
of the child for six months prior to the filing of a petition. In
determining such failure or neglect, the court shall { +
disregard any incidental or minimal expressions of concern or
support and shall + } consider but is not limited to one or more
of the following:
(1) Failure to provide care or pay a reasonable portion of
substitute physical care and maintenance if custody is lodged
with others.
(2) Failure to maintain regular visitation or other contact
with the child which was designed and implemented in a plan to
reunite the child with the parent.
(3) Failure to contact or communicate with the child or with
the custodian of the child. In making this determination, the
court may disregard incidental visitations, communications or
contributions.
SECTION 9. ORS 419B.521 is amended to read:
419B.521. (1) A hearing shall be held by the court on the
question of terminating the rights of the parent or parents. No
such hearing shall be held any earlier than 10 days after service
or final publication of the summons. The facts on the basis of
which the rights of the parents are terminated, unless admitted,
must be established by clear and convincing evidence and a
stenographic or other report authorized by ORS 8.340 shall be
taken of the hearing.
{ - (2)(a) In a hearing under subsection (1) of this section,
or at any time following the establishment of jurisdiction and
wardship pursuant to ORS 419B.100, the court may find by clear
and convincing evidence that it is in the best interest of the
Enrolled Senate Bill 689 (SB 689-B) Page 6
child that the parent never have physical custody of the child
but that other parental rights should not be terminated. In such
a case, the court may establish a guardianship for the child. - }
{ - (b) The court shall grant guardianship of the child to
some willing, qualified and suitable person who has petitioned
the court for appointment as a guardian, if it appears necessary
to do so in the interests of the child. - }
{ - (c) A person appointed guardian of the child shall have
the duties and authority of a guardian appointed pursuant to ORS
126.080. - }
{ - (d) After guardianship is granted under this section, the
parents may not petition the court to terminate the
guardianship. - }
{ - (3) - } { + (2) + } Not earlier than provided in
subsection (1) of this section and not later than six months from
the date on which summons for the petition to terminate parental
rights is served, the court before which the petition is pending
shall hold a hearing on the petition except for good cause shown.
When determining whether or not to grant a continuance for good
cause, the judge shall take into consideration the age of the
child and the potential adverse effect delay may have on the
child. The court shall make written findings when granting a
continuance.
{ - (4) - } { + (3) + } The court, on its own motion or
upon the motion of a party, may take testimony from any child
appearing as a witness and may exclude the child's parents and
other persons if the court finds such action would be likely to
be in the best interests of the child. However, the court may not
exclude the attorney for each party and any testimony taken under
this subsection shall be recorded.
{ - (5) - } { + (4) + } Notwithstanding subsection (1) of
this section, if an Indian child is involved, termination of
parental rights must be supported by evidence beyond a reasonable
doubt, including testimony of qualified expert witnesses, that
continued custody of the child is likely to result in serious
emotional or physical harm to the child.
SECTION 9a. { + Section 133, chapter 249, Oregon Laws 1997
(Enrolled House Bill 2509) (amending ORS 419B.521), is
repealed. + }
SECTION 10. ORS 419B.150 is amended to read:
419B.150. { + (1) + } A child may be taken into protective
custody by a peace officer, counselor, employee of the
{ - Children's Services Division - } { + State Office for
Services to Children and Families + } or any other person
authorized by the juvenile court of the county in which the child
is found, in the following circumstances:
{ - (1) - } { + (a) + } Where the child's condition or
surroundings reasonably appear to be such as to jeopardize the
child's welfare; or
{ - (2) - } { + (b) + } Where the juvenile court, by order
indorsed on the summons as provided in ORS 419B.271 or otherwise,
has ordered that the child be taken into protective custody.
{ + (2)(a) Before issuing an order under subsection (1)(b) of
this section, the court shall review an affidavit sworn on
information and belief provided by a peace officer, counselor or
employee of the State Office for Services to Children and
Families or other person authorized by the juvenile court that
sets forth with particularity the facts and circumstances on
which the request for protective custody is based and the
Enrolled Senate Bill 689 (SB 689-B) Page 7
reasonable efforts or, if the Indian Child Welfare Act applies,
active efforts made by the office to eliminate the need for
protective custody of the child.
(b) Except as provided in paragraph (c) of this subsection, the
court may not issue an order unless the court determines that the
office has made reasonable efforts or, if the Indian Child
Welfare Act applies, active efforts to eliminate the need for
protective custody of the child.
(c) The court may issue an order even though no services have
been provided if the court finds that no existing services could
eliminate the need for protective custody of the child. + }
{ + NOTE: + } Section 11 was deleted by amendment. Subsequent
sections were not renumbered. { + + }
SECTION 12. ORS 419B.260 is amended to read:
419B.260. (1) In any case filed in the juvenile court in which
the legal or physical custody of a child is at issue and there is
also pending, or adjudicated, a child custody or visitation case
involving the child in a domestic relations, filiation or
guardianship proceeding, the matters shall be consolidated.
(2) Upon entry of an order of consolidation, all matters
relating to custody or visitation shall be heard together { + in
juvenile court and attendant to the juvenile court
proceeding + }. The judge hearing such matters may enter orders
or modify existing orders in all cases subject to the order of
consolidation.
SECTION 13. ORS 419B.343 is amended to read:
419B.343. { + (1) + } To ensure effective planning for
children, the
{ - Children's Services Division - } { + State Office for
Services to Children and Families + } shall take into
consideration recommendations and information provided by the
committing court before placement in any facility. The
{ - Children's Services Division - } { + State Office for
Services to Children and Families + } shall ensure that the case
planning in any case:
{ - (1) - } { + (a) + } For the reunification of the family
bears a rational relationship to the jurisdictional findings that
brought the child within the court's jurisdiction under ORS
419B.100;
{ - (2) - } { + (b) + } Incorporates the perspective of the
child 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
{ - (3) - } { + (c) + } Is integrated with other agencies
in cooperation with the case workers.
{ + (2) Except in cases involving extreme conduct under ORS
419B.502 in which no case plan is required, the State Office for
Services to Children and Families 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
return of the child possible within the time described in
paragraph (b) of this subsection; and
(b) An alternate, 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 allow
the return of the child. A rebuttable presumption is created that
it is in the best interest of the child to implement the
alternate, permanent plan if:
Enrolled Senate Bill 689 (SB 689-B) Page 8
(A) The State Office for Services to Children and Families has
made reasonable efforts or, if the Indian Child Welfare Act
applies, active efforts to provide services that would make
return of the child possible; and
(B) Twelve months after the child was found to be within the
jurisdiction of the court, the child could not be returned to the
parent. + }
SECTION 14. { + Section 15 of this Act is added to and made a
part of ORS chapter 419B. + }
SECTION 15. { + (1) If the child is in substitute care, then
no later than six months after a court has placed a child in the
legal custody of the State Office for Services to Children and
Families under ORS 419B.337, the court or the local citizen
review board, established under ORS 419A.090, shall review the
case. The purpose of the review is to evaluate:
(a) The efforts and progress the parent has made in adjusting
the parent's circumstances, conduct or conditions to make return
of the child possible; and
(b) The efforts of the State Office for Services to Children
and Families in supporting the parent's efforts.
(2) If the court or the local citizen review board finds that
the State Office for Services to Children and Families has made
reasonable efforts or, if the Indian Child Welfare Act applies,
active efforts to reunify the family, the court or local citizen
review board shall so state. If, in spite of the efforts of the
State Office for Services to Children and Families, the court or
the local citizen review board finds that the parent has not made
sufficient progress, the court or the local citizen review board
may recommend that the State Office for Services to Children and
Families pursue implementation of the alternate, permanent plan
required under ORS 419B.343 (2). The implementation may include,
but is not limited to:
(a) Preparation of a petition for termination of parental
rights;
(b) Search for an adoptive home or permanent foster care
placement;
(c) Identification and study of guardianship placement; and
(d) Mediation with the parent for the purpose of implementing
the alternate, permanent plan for the child.
(3) If the court or the local citizen review board finds that
the State Office for Services to Children and Families has not
made reasonable efforts or, if the Indian Child Welfare Act
applies, active efforts to reunify the family, the court or local
citizen review board shall so state and the 12-month period
referred to in ORS 419B.343 (2) shall be extended by a period of
time equal to the period of time between placing the child in the
custody of the State Office for Services to Children and Families
under ORS 419B.337 and the date of the review.
(4) The court or the local citizen review board shall review
the case a second time 12 months after the court placed the child
in the custody of the State Office for Services to Children and
Families under ORS 419B.337.
(5)(a) At the second review, if the court or the local citizen
review board finds that the State Office for Services to Children
and Families has made reasonable efforts or, if the Indian Child
Welfare Act applies, active efforts to reunify the family, the
court or local citizen review board shall so state. If the court
or the local citizen review board finds that the parent has not
made sufficient progress to allow the child to return to the
home, the rebuttable presumption referred to in ORS 419B.343
Enrolled Senate Bill 689 (SB 689-B) Page 9
(2)(b) is created unless the time period was extended as
described in subsection (3) of this section.
(b) A person may rebut the presumption by showing at a court
hearing by a preponderance of the evidence that further efforts
will lead to successful reunification of the family.
(c) If the presumption is rebutted, the court shall order an
extension for a time certain and specify the services in which
the parents are to engage and the progress that is expected at
the end of the extension.
(d) No later than 10 days after receiving the findings and
recommendations of the local citizen review board, a person
adversely affected by the findings and recommendations may
request judicial review.
(6) If at the second review the court or the local citizen
review board finds that the State Office for Services to Children
and Families has not made reasonable efforts or, if the Indian
Child Welfare Act applies, active efforts to reunify the family,
the court or local citizen review board shall so state and the
12-month period referred to in ORS 419B.343 (2) shall be extended
by a period of time equal to the period of time between the first
review and the second review. + }
{ + NOTE: + } Section 16 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 17. { + Section 18 of this Act is added to and made a
part of ORS chapter 419B. + }
SECTION 18. { + (1) Except as otherwise provided in this
section, no later than 90 days after a petition alleging that a
child is within the jurisdiction of the court under ORS 419B.100
has been filed, the court shall hold a hearing on the petition
and enter an order under ORS 419B.325 (1). Upon written order
supported by factual findings of good cause, the court may
continue a petition beyond 90 days.
(2)(a) No later than 60 days after a petition alleging
jurisdiction under ORS 419B.100 is filed:
(A) All parties shall comply with ORS 419B.300; and
(B) Each person about whom allegations have been made shall
admit or deny the allegations.
(b) When a person denies allegations in the petition, the court
shall set the case for a hearing within the time limits
prescribed by subsection (1) of this section. Upon written order
supported by factual findings of good cause, the court may
continue the hearing beyond the 90-day time limit.
(3) Upon expiration of any continuance granted by this section,
the court shall give a petition filed under ORS 419B.100 that is
beyond the time limit imposed by subsection (1) of this section
the highest priority on the court docket. + }
SECTION 19. ORS 419B.185 is amended to read:
419B.185. { + (1) + } When the child is taken, or is about to
be taken, into protective custody pursuant to ORS 419B.160,
419B.165, 419B.168 and 419B.171 and placed in detention or
shelter care, a parent or child 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
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 hearing:
{ - (1) - } { + (a) + } The court shall make { - a - }
written { - finding - } { + findings + } as to whether the
{ - division - } { + State Office for Services to Children and
Enrolled Senate Bill 689 (SB 689-B) Page 10
Families + }has made reasonable efforts { - , considering the
circumstances of the child and parent, - } { + or, if the
Indian Child Welfare Act applies, active efforts + } to prevent
or eliminate the need for removal of the child from the home
{ - or - } { + and + } to reunify the family { + . When the
court finds that no services were provided but that existing
services would not have eliminated the need for protective
custody, the court shall consider the office to have made
reasonable efforts or, if the Indian Child Welfare Act applies,
active efforts to prevent or eliminate the need for protective
custody. + } { - ; - }
{ - (2) - } { + (b) + } In determining whether a child
shall be removed or continued out of home, the court shall
consider whether the provision of reasonable and available
services can prevent or eliminate the need to separate the
family { + . + } { - ; - }
{ - (3) - } { + (c) + } The court shall make a written
finding in every order of removal that it is in the best interest
and for the welfare of the child that the child be removed from
the home or continued in care { + . + } { - ; and - }
{ - (4) - } { + (d) + } The court shall determine whether
the child is an Indian child as defined in ORS 419A.004 or in the
applicable State-Tribal Indian Child Welfare Agreement.
{ + (2) To aid the court in making the findings required by
subsection (1)(a) of this section, the office shall present
documentation to the court outlining the reasonable or active
efforts made to prevent taking the child into protective custody
and to provide services to return the child home. + }
SECTION 20. ORS 109.119 is amended to read:
109.119. (1) Any person including but not limited to a related
or nonrelated foster parent, stepparent, grandparent or relative
by blood or marriage who has established emotional ties creating
a child-parent relationship { + or an ongoing personal
relationship + } with a child may petition or file a motion for
intervention with the court having jurisdiction over the custody,
placement, guardianship or wardship of that child, or if no such
proceedings are pending, may petition the court for the county in
which the minor child resides for an order providing for
{ - custody or placement of the child or visitation rights or
other generally recognized rights of a parent or person in loco
parentis - } { + relief under subsection (2) of this
section + }.
{ + (2)(a) + } If the court determines that { + a
child-parent relationship exists and if the court determines by a
preponderance of the evidence that + } custody, guardianship,
right of visitation, or other generally recognized right of a
parent or person in loco parentis, is appropriate in the case,
the court shall grant such custody, guardianship, right of
visitation or other right to the person having the child-parent
relationship, if to do so is in the best interest of the child.
The court may determine temporary custody of the child { + or
temporary visitation rights + } under this
{ - section - } { + paragraph + } pending a final order.
{ + (b) If the court determines that an ongoing personal
relationship exists and if the court determines by clear and
convincing evidence that visitation or contact rights are
appropriate in the case, the court shall grant visitation or
contact rights to the person having the ongoing personal
relationship if to do so is in the best interest of the child.
Enrolled Senate Bill 689 (SB 689-B) Page 11
The court may order temporary visitation rights under this
paragraph pending a final order. + }
{ - (2) - } { + (3) + } In addition to the rights granted
under subsection (1) { + or (2) + } of this section, a
stepparent with a child-parent relationship { - , as defined in
subsection (4) of this section, - } who is a party in a
dissolution proceeding may petition the court having jurisdiction
for custody or visitation or may petition the court for the
county in which the minor child resides for adoption of the
child. The stepparent may also file for post decree modification
of a decree relating to child custody.
{ - (3) - } { + (4) + } A motion for intervention may be
denied or a petition may be dismissed on the motion of any party
or on the court's own motion if the petition does not state a
prima facie case of emotional ties creating a child-parent
relationship { + or ongoing personal relationship + } or does
not allege facts that the intervention is in the best interests
of the child.
{ - (4) - } { + (5) + } As used in this section { + :
(a) + } 'Child-parent relationship' means a relationship that
exists or did exist, in whole or in part, within the six months
preceding the filing of an action under this section, and in
which relationship a person having physical custody of a child or
residing in the same household as the child supplied, or
otherwise made available to the child, food, clothing, shelter
and incidental necessaries and provided the child with necessary
care, education and discipline, and which relationship continued
on a day-to-day basis, through interaction, companionship,
interplay and mutuality, that fulfilled the child's psychological
needs for a parent as well as the child's physical needs.
However, a relationship between a child and a person who is the
nonrelated foster parent of the child is not a child-parent
relationship under this section unless the relationship continued
over a period exceeding 18 months.
{ - (5) - } { + (b) + } { - Notwithstanding subsection
(1) of this section, a person who has maintained an ongoing
personal relationship - } { + ' Ongoing personal relationship'
means a relationship + } with substantial continuity for at least
one year, through interaction, companionship, interplay and
mutuality { - may petition the court having jurisdiction over
the custody, placement, guardianship or wardship of that child,
or if no such proceedings are pending, may petition the court for
the county in which the minor child resides, for an order
providing for reasonable visitation rights. If the court
determines from clear and convincing evidence that visitation is
in the best interests of the child and is otherwise appropriate
in the case, the court shall grant visitation to the person
having the relationship described in this subsection - } .
(6) In no event shall costs for the representation of an
intervenor under this section be charged against funds
appropriated for indigent defense services.
SECTION 21. ORS 419B.115 is amended to read:
419B.115. (1) Parties to proceedings in the juvenile court
under ORS 419B.100 and 419B.500, are:
(a) The minor child;
(b) The legal parents or guardian;
(c) The state;
(d) The juvenile department;
(e) A court appointed special advocate, if appointed;
Enrolled Senate Bill 689 (SB 689-B) Page 12
(f) The Children's Services Division or other child-caring
agency if the agency has temporary custody of the child; and
(g) An intervenor { + who petitions or files a motion on the
basis of a child-parent relationship + } under ORS 109.119
{ - (1) to (4) - } .
(2) The rights of the parties include, but are not limited to:
(a) The right to notice of the proceeding and copies of the
pleadings;
(b) The right to appear with counsel and 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) Persons who are not parties under subsection (1) of this
section may petition the court for rights of limited
participation. The petition must be filed and served on all
parties no later than two weeks before a proceeding in the case
in which participation is sought. The petition must state:
(A) The reason the participation is sought;
(B) How the person's involvement is in the best interest of the
child or the administration of justice;
(C) Why the parties cannot adequately present the case; and
(D) What specific relief is being sought.
(b) If the court finds that the petition is well founded, the
court may grant rights of limited participation as specified by
the court.
(c) Persons petitioning for rights of limited participation are
not entitled to court-appointed counsel.
SECTION 22. ORS 419C.285 is amended to read:
419C.285. (1) At the adjudication stage of a delinquency
proceeding, the parties to the proceeding are the youth and the
state, represented by the district attorney or the juvenile
department. At the dispositional stage of a delinquency
proceeding, the following are also parties:
(a) The parents or guardian of the youth;
(b) A court appointed special advocate, if appointed;
(c) The Oregon Youth Authority or other child care agency, if
the youth is temporarily committed to the agency; and
(d) An intervenor { + who petitions or files a motion on the
basis of a child-parent relationship + } under ORS 109.119
{ - (1) to (4) - } .
(2) The rights of the parties include, but are not limited to:
(a) The right to notice of the proceeding and copies of the
pleadings;
(b) The right to appear with counsel and to have counsel
appointed if otherwise provided by law;
(c) The right to call witnesses, cross-examine witnesses and
participate in hearings;
(d) The right to appeal; and
(e) The right to request a hearing.
(3)(a) Persons who are not parties under subsection (1) of this
section may petition the court for rights of limited
participation. The petition must be filed and served on all
parties no later than two weeks before a proceeding in the case
in which participation is sought. The petition must state:
(A) The reason the participation is sought;
(B) How the person's involvement is in the best interest of the
youth or the administration of justice;
(C) Why the parties cannot adequately present the case; and
Enrolled Senate Bill 689 (SB 689-B) Page 13
(D) What specific relief is being sought.
(b) If the court finds that the petition is well founded, the
court may grant rights of limited participation as specified by
the court.
(c) Persons petitioning for rights of limited participation are
not entitled to court-appointed counsel.
SECTION 23. { + Section 24 of this Act is added to and made a
part of ORS chapter 419B. + }
SECTION 24. { + (1) Notwithstanding ORS 109.309, a prospective
adoptive parent is not required to file a petition for adoption
when:
(a) A juvenile court that is a circuit court has entered an
order of permanent commitment of a child to the State Office for
Services to Children and Families under ORS 419B.527;
(b) The State Office for Services to Children and Families has
completed a home study as defined in ORS 109.304 that finds the
prospective parent is suitable to adopt the child and the State
Office for Services to Children and Families consents to the
adoption of the child by the prospective parent;
(c) A home study and a placement report requesting the juvenile
court to enter a decree of adoption have been filed in the
juvenile court proceeding; and
(d) At the time the placement report is filed under paragraph
(c) of this subsection, the prospective adoptive parent files the
adoption report form required under ORS 109.400.
(2) Notwithstanding ORS 21.320, the clerk of the juvenile court
may not charge or collect first appearance or hearing fees for a
proceeding under this section.
(3) After the filing of the home study and the placement report
requesting the court to enter a decree of adoption, the juvenile
court that entered the order of permanent commitment may proceed
as provided in ORS 109.307 and 109.350 and may enter a decree of
adoption. + }
SECTION 25. ORS 7.211 is amended to read:
7.211. (1) The clerk or court administrator of any court having
jurisdiction over adoption cases shall keep separate records in
all cases of adoption filed in such court. The records shall not
be subject to the inspection of any person, except upon order of
the court. Adoption proceedings shall not be entered upon the
general records of the court, nor shall the clerk or court
administrator disclose to any person, without the court order,
any information appearing in the adoption records. The clerk,
court administrator or any other person having custody of any
records or files in such cases shall not disclose them to any
person without the court order. Nothing contained in this section
shall prevent the clerk or court administrator from certifying
copies of a decree of adoption to the petitioners in such
proceeding or their attorney. At the time of the entry of any
final decree of adoption, the clerk, court administrator or other
person having custody of the records or files in such cases shall
cause all records, papers and files relating to the adoption to
be sealed in the record of the case and such sealed records,
papers and files shall not be unsealed, opened or subject to the
inspection of any person except upon order of a court of
competent jurisdiction. { + The clerk, court administrator or
other person having custody of records of adoptions entered under
section 24 of this 1997 Act shall store the records in the
juvenile records and shall cause the records to be separately
sealed. + }
Enrolled Senate Bill 689 (SB 689-B) Page 14
(2) The provisions of subsection (1) of this section do not
apply to the disclosure of information under ORS 109.425 to
109.507.
SECTION 26. { + Section 27 of this Act is added to and made a
part of ORS 419B.010 to 419B.030. + }
SECTION 27. { + (1) Upon notice by either a law enforcement
agency or the State Office for Services to Children and Families
that a child abuse investigation is being conducted under ORS
419B.020, a health care provider may permit the law enforcement
agency or the office to inspect and copy medical records,
including, but not limited to, prenatal and birth records, of the
child involved in the investigation without the consent of the
child, or the parent or guardian of the child. A health care
provider who in good faith disclosed medical records under this
section is not civilly or criminally liable for the disclosure.
(2)(a) As used in this section, 'health care provider ' means a
person licensed by one of the following agencies, or any employee
of a person licensed by one of the following agencies:
(A) State Board of Examiners for Speech-Language Pathology and
Audiology;
(B) State Board of Chiropractic Examiners;
(C) State Board of Clinical Social Workers;
(D) Oregon Board of Licensed Professional Counselors and
Therapists;
(E) Oregon Board of Dentistry;
(F) State Board of Denture Technology;
(G) Board of Examiners of Licensed Dietitians;
(H) State Board of Massage Technicians;
(I) State Mortuary and Cemetery Board;
(J) Board of Naturopathic Examiners;
(K) Oregon State Board of Nursing;
(L) Board of Examiners of Nursing Home Administrators;
(M) Oregon Board of Optometry;
(N) State Board of Pharmacy;
(O) Board of Medical Examiners;
(P) Occupational Therapy Licensing Board;
(Q) Physical Therapist Licensing Board;
(R) State Board of Psychologist Examiners; or
(S) Board of Radiologic Technology.
(b) For the purposes of this section, 'health care provider'
+ } { + includes a health care facility described in ORS
442.015 (14) and emergency medical technicians certified by the
Health Division. + }
SECTION 28. { + It is the policy of the State of Oregon to
ensure the integrity of the child welfare system. To this end it
is necessary to provide for a process to allow for appropriate
internal review of decisions made by the State Office for
Services to Children and Families. The state therefore requires
that:
(1) Citizens shall be guaranteed the right to review of the
actions and conduct of the State Office for Services to Children
and Families.
(2) Citizens shall be provided with a single place to file
complaints concerning the actions and conduct of the State Office
for Services to Children and Families and shall be entitled to a
response to the complaint within a reasonable period of time.
(3) Citizens shall not be subjected to reprisal for complaining
of an action or conduct of the State Office for Services to
Children and Families. + }
Enrolled Senate Bill 689 (SB 689-B) Page 15
SECTION 29. { + (1) The State Office for Services to Children
and Families shall adopt rules establishing a review process to
carry out the policy expressed in section 28 of this Act.
(2) If the actions and conduct of the office are being
addressed in a judicial or administrative proceeding, the review
required by subsection (1) of this section may not be commenced
or shall be stayed pending resolution of the judicial or
administrative proceeding. + }
SECTION 30. ORS 419B.005 is amended to read:
419B.005. As used in ORS 418.747, 418.748, 418.749 and 419B.005
to 419B.045, unless the context requires otherwise:
(1) { + (a) + } 'Abuse' means:
{ - (a) - } { + (A) + } Any assault, as defined in ORS
chapter 163, of a child and any physical injury to a child which
has been caused by other than accidental means, including any
injury which appears to be at variance with the explanation given
of the injury.
{ - (b) - } { + (B) + } Any mental injury to a child, which
shall include only observable and substantial impairment of the
child's mental or psychological ability to function caused by
cruelty to the child, with due regard to the culture of the
child.
{ - (c) - } { + (C) + } Rape of a child, which includes but
is not limited to rape, sodomy, unlawful sexual penetration and
incest, as those acts are defined in ORS chapter 163.
{ - (d) - } { + (D) + } Sexual abuse, as defined in ORS
chapter 163.
{ - (e) - } { + (E) + } Sexual exploitation, including but
not limited to:
{ - (A) - } { + (i) + } Contributing to the sexual
delinquency of a minor, as defined in ORS chapter 163, and any
other conduct which allows, employs, authorizes, permits, induces
or encourages a child to engage in the performing for people to
observe or the photographing, filming, tape recording or other
exhibition which, in whole or in part, depicts sexual conduct or
contact, as defined in ORS 167.002 or described in ORS 163.665
and 163.670, sexual abuse involving a child or rape of a child,
but not including any conduct which is part of any investigation
conducted pursuant to ORS 419B.020 or which is designed to serve
educational or other legitimate purposes; and
{ - (B) - } { + (ii) + } Allowing, permitting, encouraging
or hiring a child to engage in prostitution, as defined in ORS
chapter 167.
{ - (f) - } { + (F) + } Negligent treatment or maltreatment
of a child, including but not limited to the failure to provide
adequate food, clothing, shelter or medical care. However, any
child who is under care or treatment solely by spiritual means
pursuant to the religious beliefs or practices of the child or
the child's parent or guardian shall not, for this reason alone,
be considered a neglected or maltreated child under this section.
{ - (g) - } { + (G) + } Threatened harm to a child, which
means subjecting a child to a substantial risk of harm to the
child's health or welfare.
{ + (b) 'Abuse' does not include reasonable discipline unless
the discipline results in one of the conditions described in
paragraph (a) of this subsection. + }
(2) 'Child' means an unmarried person who is under 18 years of
age.
(3) 'Public or private official' means:
(a) Physician, including any intern or resident.
Enrolled Senate Bill 689 (SB 689-B) Page 16
(b) Dentist.
(c) School employee.
(d) Licensed practical nurse or registered nurse.
(e) Employee of the Department of Human Resources, a county
health department, a community mental health and developmental
disabilities program, a county juvenile department, a licensed
child-caring agency or an alcohol and drug treatment program.
(f) Peace officer.
(g) Psychologist.
(h) Clergyman.
(i) Licensed clinical social worker.
(j) Optometrist.
(k) Chiropractor.
(L) Certified provider of child care or foster care, or an
employee thereof.
(m) Attorney.
(n) Naturopathic physician.
(o) Licensed professional counselor.
(p) Licensed marriage and family therapist.
(q) Firefighter or emergency medical technician.
(r) A court appointed special advocate, as defined in ORS
419A.004.
(4) 'Law enforcement agency' means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) A county juvenile department.
SECTION 31. ORS 147.035 is amended to read:
147.035. (1) Losses compensable under ORS 135.905 and 147.005
to 147.365 resulting from death or injury to a victim include:
(a) In the case of injury:
(A) Reasonable medical and hospital expenses, including
psychiatric, psychological or counseling expenses and further
including, in cases of child sexual abuse, rape of a child and
exploitation described in ORS 419B.005 { - (1)(c), (d) or
(e) - } { + (1)(a)(C), (D) or (E) + }, counseling expenses of
the victim's family up to a maximum amount of $10,000;
(B) Loss of earnings, not exceeding $200 per week up to a
maximum amount of $10,000; and
(C) Rehabilitation up to a maximum amount of $3,000.
(b) In the case of death:
(A) Reasonable funeral expenses up to a maximum amount of
$2,000;
(B) Reasonable medical and hospital expenses up to a maximum
amount of $10,000;
(C) Loss of support to the dependents of the victim not
exceeding $200 per week up to a maximum amount of $10,000, less
any amounts paid for loss of earnings; and
(D) Reasonable counseling expenses for the survivors of a
deceased victim up to a maximum amount of $10,000 for each
deceased victim.
(2) Compensable losses do not include:
(a) Pain and suffering or property damage; or
(b) Aggregate damages to the victim and to the dependents of a
victim exceeding $23,000.
(3) Notwithstanding subsections (1) and (2) of this section, in
the case of abuse of corpse in any degree, losses compensable
under ORS 135.905 and 147.005 to 147.365 resulting from the abuse
of the corpse include:
Enrolled Senate Bill 689 (SB 689-B) Page 17
(a) Reasonable funeral expenses up to a maximum amount of
$2,000; and
(b) Reasonable counseling expenses for emotional distress up to
a maximum amount of $10,000 for each incident.
(4) A claim for benefits expires and no further payments shall
be made with regard to the claim when three years have elapsed
since the entry of a determination order under ORS 147.135.
(5) The Department of Justice shall adopt rules for medical fee
schedules. The schedules shall represent at least the 75th
percentile of the usual and customary fees charged to the public
as determined by the department. An applicant or victim may not
be charged for the percentile amount reduced by the department.
SECTION 32. ORS 418.782 is amended to read:
418.782. As used in ORS 418.780 to 418.796:
(1) 'Child abuse' means 'abuse' as defined by ORS 419B.005
{ - (1)(a) to (f) - } { + (1)(a)(A) to (F) + }.
(2) 'Community assessment center' means a community-based
center to which a child may be referred to receive a medical
assessment for the purpose of determining whether the child has
been abused or neglected.
(3) 'Regional assessment center' means a neutral,
child-sensitive center where a child may be referred to receive a
thorough assessment consisting of a medical evaluation and a
videotaped interview by trained professionals for the purpose of
determining whether the child has been abused. In addition, a
regional assessment center provides education, training and
technical assistance for community assessment centers.
SECTION 33. ORS 419B.020 is amended to read:
419B.020. (1) Upon receipt of an oral report of child abuse,
the Children's Services Division or the law enforcement agency
shall immediately cause an investigation to be made to determine
the nature and cause of the abuse of the child.
(2) If the law enforcement agency conducting the investigation
finds reasonable cause to believe that abuse has occurred, the
law enforcement agency shall notify by oral report followed by
written report the local office of the Children's Services
Division. The Children's Services Division shall provide
protective social services of its own or of other available
social agencies if necessary to prevent further abuses to the
child or to safeguard the child's welfare.
(3) If a child is taken into protective custody by the
Children's Services Division, the division shall promptly make
reasonable efforts to ascertain the name and address of the
child's parents or guardian.
(4)(a) If a child is taken into protective custody by the
division or a law enforcement official, the division or law
enforcement official shall, if possible, make reasonable efforts
to advise the parents or guardian immediately, regardless of the
time of day, that the child has been taken into custody, the
reasons why the child has been taken into custody and general
information about the child's placement, and the telephone number
of the division office and any after-hours telephone numbers.
(b) Notice may be given by any means reasonably certain of
notifying the parents or guardian, including but not limited to
written, telephonic or in-person oral notification. If the
initial notification is not in writing, the information required
by paragraph (a) of this subsection also shall be provided to the
parents or guardian in writing as soon as possible.
Enrolled Senate Bill 689 (SB 689-B) Page 18
(c) The division also shall make a reasonable effort to notify
the noncustodial parent of the information required by paragraph
(a) of this subsection in a timely manner.
(d) If a child is taken into custody while under the care and
supervision of a person or organization other than the parent,
the division, if possible, shall immediately notify the person or
organization that the child has been taken into protective
custody.
(5) If a law enforcement officer or the Children's Services
Division, when taking a child into protective custody, has
reasonable cause to believe that the child has been affected by
sexual abuse and rape of a child as defined in ORS 419B.005
{ - (1)(c) - } { + (1)(a)(C) + } and that physical evidence
of the abuse exists and is likely to disappear, the court may
authorize a physical examination for the purposes of preserving
evidence if the court finds that it is in the best interest of
the child to have such an examination. Nothing in this section
affects the authority of the Children's Services Division to
consent to physical examinations at other times.
(6) A minor child of 12 years of age or older may refuse to
consent to the examination described in subsection (5) of this
section. The examination shall be conducted by or under the
supervision of a physician licensed under ORS chapter 677 or a
nurse practitioner licensed under ORS chapter 678 and, whenever
practicable, trained in conducting such examinations.
----------
Passed by Senate April 11, 1997
Repassed by Senate June 30, 1997
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 28, 1997
...........................................................
Speaker of House
Enrolled Senate Bill 689 (SB 689-B) Page 19
Received by Governor:
......M.,............., 1997
Approved:
......M.,............., 1997
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 1997
...........................................................
Secretary of State
Enrolled Senate Bill 689 (SB 689-B) Page 20