Chapter 419B —
Juvenile Code: Dependency
ORS sections in this chapter were
amended or repealed by the Legislative Assembly during its 2012 regular
session. See the table of ORS sections amended or repealed during the 2012
regular session: 2012 A&R Tables
Uncodified sections printed in this
chapter were amended or repealed by the Legislative Assembly during its 2012
regular session. See the table of uncodified sections amended or repealed during
the 2012 regular session: 2012 A&R Tables
New sections of law were adopted by the
Legislative Assembly during its 2012 regular session and are likely to be
compiled in this ORS chapter. See
sections in the following 2012 Oregon Laws chapters: 2012
Session Laws 0086
2011 EDITION
JUVENILE CODE: DEPENDENCY
HUMAN SERVICES; JUVENILE CODE;
CORRECTIONS
REPORTING OF CHILD ABUSE
419B.005 Definitions
419B.007 Policy
419B.010 Duty
of officials to report child abuse; exceptions; penalty
419B.015 Report
form and content; notice
419B.016 Offense
of false report of child abuse
419B.017 Time
limits for notification between law enforcement agencies and Department of
Human Services; rules
419B.020 Duty
of department or law enforcement agency receiving report; investigation; notice
to parents; physical examination; child’s consent; notice at conclusion of
investigation
419B.021 Degree
requirements for persons conducting investigation or making determination
regarding child
419B.022 Short
title
419B.023 Duties
of person conducting investigation under ORS 419B.020
419B.024 Critical
Incident Response Team for child fatality; rules
419B.025 Immunity
of person making report in good faith
419B.028 Photographing
child during investigation; photographs as records
419B.030 Central
registry of reports
419B.035 Confidentiality
of records; when available to others
419B.040 Certain
privileges not grounds for excluding evidence in court proceedings on child
abuse
419B.045 Investigation
conducted on public school premises; notification; role of school personnel
419B.050 Authority
of health care provider to disclose information; immunity from liability
JUVENILE COURT
(Generally)
419B.090 Juvenile
court; jurisdiction; policy
419B.100 Jurisdiction;
bases; Indian children
419B.110 Emergency
medical care; court may authorize
419B.116 Intervention;
caregiver relationship; rights of limited participation
419B.117 Notice
to parents or guardian of child; when given; contents
419B.118 Venue
419B.121 Return
of runaway children to another state
419B.124 Transfer
to juvenile court from another court
419B.127 Transfer
to court of county of child or ward’s residence
419B.130 Delegation
of jurisdiction by county of residence
419B.132 Delegation
of jurisdiction among county juvenile courts
419B.135 Transfer
of case; transportation of child or ward
(Protective Custody)
419B.150 When
protective custody authorized; disposition of runaway child taken into
protective custody
419B.155 Protective
custody not arrest
419B.157 Jurisdiction
attaches at time of custody
419B.160 Place
of detention; record; parental notice required
419B.165 Release
of child taken into custody
419B.168 Procedure
when child is not released
419B.171 Report
required when child is taken into custody
419B.175 Initial
disposition of child taken into custody
(Shelter Hearings)
419B.180 Shelter
and detention facilities
419B.183 Speedy
hearing required
419B.185 Evidentiary
hearing
(Placement of Child or Ward)
419B.192 Placement
of child or ward; preference given to relatives and caregivers; written
findings of court required
(Counsel)
419B.195 Appointment
of counsel for child or ward; access of appointed counsel to records of child
or ward
419B.198 Responsibility
for payment of costs related to provision of appointed counsel for child or
ward
419B.201 Compensation
for court-appointed counsel for child or ward under ORS 135.055
419B.205 Appointment
of counsel for parent or legal guardian
419B.208 Other
law applicable to appointment of counsel
419B.211 Motion
to withdraw as counsel
(Educational Surrogate)
419B.220 Appointment
of surrogate
419B.223 Duties
and tenure of surrogate
(Guardian Ad Litem for Parent)
419B.231 Appointment;
hearing; findings
419B.234 Qualifications;
duties; privilege
419B.237 Duration
of appointment; compensation
(Hearings)
419B.305 When
hearing must be held; continuation; priority
419B.310 Conduct
of hearings
(Disposition)
419B.325 Disposition
required; evidence
419B.328 Ward
of the court; duration of wardship
419B.331 When
protective supervision authorized; conditions that may be imposed
419B.334 Placement
out of state
419B.337 Commitment
to custody of Department of Human Services
419B.340 Reasonable
or active efforts determination
419B.343 Recommendations
of committing court; case planning; plan contents
419B.346 Medical
planning
419B.349 Court
authority to review placement
419B.352 Hospitalization;
mental health examination
(Guardianships)
419B.365 Permanent
guardianship; petition; when filed; procedure
419B.366 Guardianship;
motion; procedure
419B.367 Letters
of guardianship; reports by guardian; review of reports; legal status and
liability of guardian
419B.368 Review,
modification or vacation of guardianship order
419B.369 Guardianship
study; rules
(Legal Custodian of Child)
419B.370 Guardianship
as incident of custody
419B.373 Duties
and authority of legal custodian
(Guardian)
419B.376 Duties
and authority of guardian
419B.379 Guardian
is not conservator
(Authority Over Parents)
419B.385 Parent
or guardian as party
419B.387 Parent
participation in treatment or training
419B.389 Inability
of parent to comply with order of court
(Paternity)
419B.395 Judgment
of paternity or nonpaternity
(Support)
419B.400 Authority
to order support; collection
419B.402 Support
order is judgment
419B.404 Support
for child or ward in state financed or supported institution
419B.406 Assignment
of support order to state
419B.408 Enforcement
of support order
(Reports by Guardians and Custodians)
419B.440 Circumstances
requiring reports
419B.443 Time
and content of reports
419B.446 Filing
report
419B.449 Review
hearing by court; findings
419B.452 Distribution
of report by court
(Child Surrendered for Adoption)
419B.460 Agency’s
responsibility
(Permanency Hearing)
419B.470 Permanency
hearing; schedule
419B.473 Notice;
appearance
419B.476 Conduct
of hearing; court determinations; orders
(Termination of Parental Rights)
419B.498 Termination
of parental rights; petition by Department of Human Services; when required
419B.500 Termination
of parental rights generally
419B.502 Termination
upon finding of extreme conduct
419B.504 Termination
upon finding of unfitness
419B.506 Termination
upon finding of neglect
419B.508 Termination
upon finding of abandonment
419B.510 Termination
upon finding child conceived as result of rape
419B.517 Mediation
to be encouraged
419B.518 Appointment
of counsel for parents
419B.521 Conduct
of termination hearing
419B.524 Effect
of termination order
419B.527 Disposition
of ward after termination
419B.529 Adoption
after permanent commitment or surrender; procedure; certain fees prohibited
419B.530 Representation
by Attorney General
(Emancipation of Minor)
419B.550 Definitions
for ORS 419B.550 to 419B.558
419B.552 Application
for emancipation judgment; effect of judgment
419B.555 Hearing;
notice to parent; duty to advise minor of liabilities of emancipated person;
filing fee
419B.558 Entry
of judgment of emancipation
JUVENILE COURT DEPENDENCY PROCEDURE
419B.800 Applicability
of ORS 419B.800 to 419B.929
419B.803 Jurisdiction
419B.806 Consolidation;
when required; procedures
419B.809 Petition;
contents; form; dismissal
419B.812 Issuance
of summons; time for hearing on petition
419B.815 Summons
for proceeding to establish jurisdiction under ORS 419B.100; contents; failure
to appear
419B.816 Notice
to person contesting petition to establish jurisdiction
419B.818 Form
of summons under ORS 419B.815
419B.819 Summons
for proceeding to establish permanent guardianship or terminate parental
rights; contents; failure to appear
419B.820 Notice
to parent contesting petition to establish permanent guardianship or terminate
parental rights
419B.822 Form
of summons under ORS 419B.819
419B.823 Service
of summons generally
419B.824 Methods
of serving summons
419B.827 Responsibility
for costs of service of summons and travel expenses of party summoned
419B.830 Return
of summons
419B.833 Proof
of service of summons or mailing
419B.836 Effect
of error in summons or service of summons
419B.839 Required
and discretionary summons
419B.842 When
arrest warrant authorized
419B.845 Restraining
order when child abuse alleged
419B.846 Service
of restraining order
419B.848 Process
generally
419B.851 Service
of process; filing; proof of service
419B.854 Computing
statutory time periods
419B.857 Pleadings;
construction
419B.860 Motions
419B.863 Pleadings;
captions
419B.866 Signing
pleadings required; effect of signing or not signing
419B.869 Responding
to pleadings; time limit
419B.872 Amendment
of pleadings
419B.875 Parties
to proceedings; rights of limited participation; status of grandparents;
interpreters
419B.878 Applicability
of Indian Child Welfare Act
419B.881 Disclosure;
scope; when required; exceptions; breach of duty to disclose
419B.884 Depositions;
procedure
419B.887 Objections
at depositions; effect of failure to make timely objection; errors and
irregularities in transcript preparation
419B.890 Dismissal
of petition at end of petitioner’s case; settlement conference
419B.893 Subpoenas
generally
419B.896 Subpoena
for production of books, papers, documents and other tangible things
419B.899 Issuance
of subpoena
419B.902 Service
of subpoena
419B.905 Subpoena
of incarcerated witness
419B.908 Witness
fees; payment
419B.911 Failure
to obey subpoena
419B.914 Proceeding
when person entitled to service is not summoned and is not before court
419B.918 Manner
of appearance
419B.920 New
hearings
419B.923 Modifying
or setting aside order or judgment
419B.926 Stay
of order or judgment pending appeal
419B.929 Enforcement
of certain orders and judgments
MISCELLANEOUS
419B.950 Educational
program regarding federal and state adoption and child welfare laws;
establishment; purpose
REPORTING OF CHILD ABUSE
419B.005 Definitions.
As used in ORS 419B.005 to 419B.050, unless the context requires otherwise:
(1)(a)
“Abuse” means:
(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)
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)
Rape of a child, which includes but is not limited to rape, sodomy, unlawful
sexual penetration and incest, as those acts are described in ORS chapter 163.
(D)
Sexual abuse, as described in ORS chapter 163.
(E)
Sexual exploitation, including but not limited to:
(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
(ii)
Allowing, permitting, encouraging or hiring a child to engage in prostitution
or to patronize a prostitute, as defined in ORS chapter 167.
(F)
Negligent treatment or maltreatment of a child, including but not limited to
the failure to provide adequate food, clothing, shelter or medical care that is
likely to endanger the health or welfare of the child.
(G)
Threatened harm to a child, which means subjecting a child to a substantial
risk of harm to the child’s health or welfare.
(H)
Buying or selling a person under 18 years of age as described in ORS 163.537.
(I)
Permitting a person under 18 years of age to enter or remain in or upon
premises where methamphetamines are being manufactured.
(J)
Unlawful exposure to a controlled substance, as defined in ORS 475.005, that
subjects a child to a substantial risk of harm to the child’s health or safety.
(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)
“Law enforcement agency” means:
(a)
A city or municipal police department.
(b)
A county sheriff’s office.
(c)
The Oregon State Police.
(d)
A police department established by a university under ORS 352.383.
(e)
A county juvenile department.
(4)
“Public or private official” means:
(a)
Physician, osteopathic physician, physician assistant, naturopathic physician,
podiatric physician and surgeon, including any intern or resident.
(b)
Dentist.
(c)
School employee.
(d)
Licensed practical nurse, registered nurse, nurse practitioner, nurse’s aide,
home health aide or employee of an in-home health service.
(e)
Employee of the Department of Human Services, Oregon Health Authority, State
Commission on Children and Families, Child Care Division of the Employment
Department, the Oregon Youth Authority, a county health department, a community
mental health program, a community 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)
Member of the clergy.
(i)
Regulated social worker.
(j)
Optometrist.
(k)
Chiropractor.
(L)
Certified provider of foster care, or an employee thereof.
(m)
Attorney.
(n)
Licensed professional counselor.
(o)
Licensed marriage and family therapist.
(p)
Firefighter or emergency medical services provider.
(q)
A court appointed special advocate, as defined in ORS 419A.004.
(r)
A child care provider registered or certified under ORS 657A.030 and 657A.250
to 657A.450.
(s)
Member of the Legislative Assembly.
(t)
Physical, speech or occupational therapist.
(u)
Audiologist.
(v)
Speech-language pathologist.
(w)
Employee of the Teacher Standards and Practices Commission directly involved in
investigations or discipline by the commission.
(x)
Pharmacist.
(y)
An operator of a preschool recorded program under ORS 657A.255.
(z)
An operator of a school-age recorded program under ORS 657A.257.
(aa)
Employee of a private agency or organization facilitating the provision of
respite services, as defined in ORS 418.205, for parents pursuant to a properly
executed power of attorney under ORS 109.056. [1993 c.546 §12; 1993 c.622 §1a;
1995 c.278 §50; 1995 c.766 §1; 1997 c.127 §1; 1997 c.561 §3; 1997 c.703 §3;
1997 c.873 §30; 1999 c.743 §22; 1999 c.954 §4; 2001 c.104 §148; 2003 c.191 §1;
2005 c.562 §26; 2005 c.708 §4; 2009 c.199 §1; 2009 c.442 §36; 2009 c.518 §1;
2009 c.570 §6; 2009 c.595 §364; 2009 c.633 §10; 2009 c.708 §3; 2010 c.60 §§4,5;
2011 c.151 §12; 2011 c.506 §38; 2011 c.703 §34]
419B.007 Policy.
The Legislative Assembly finds that for the purpose of facilitating the use of
protective social services to prevent further abuse, safeguard and enhance the
welfare of abused children, and preserve family life when consistent with the
protection of the child by stabilizing the family and improving parental
capacity, it is necessary and in the public interest to require mandatory
reports and investigations of abuse of children and to encourage voluntary
reports. [1993 c.546 §13]
419B.010 Duty of officials to report child
abuse; exceptions; penalty. (1) Any public or private
official having reasonable cause to believe that any child with whom the
official comes in contact has suffered abuse or that any person with whom the
official comes in contact has abused a child shall immediately report or cause
a report to be made in the manner required in ORS 419B.015. Nothing contained
in ORS 40.225 to 40.295 or 419B.234 (6) affects the duty to report imposed by
this section, except that a psychiatrist, psychologist, member of the clergy,
attorney or guardian ad litem appointed under ORS 419B.231 is not required to
report such information communicated by a person if the communication is
privileged under ORS 40.225 to 40.295 or 419B.234 (6). An attorney is not
required to make a report under this section by reason of information
communicated to the attorney in the course of representing a client if
disclosure of the information would be detrimental to the client.
(2)
Notwithstanding subsection (1) of this section, a report need not be made under
this section if the public or private official acquires information relating to
abuse by reason of a report made under this section, or by reason of a
proceeding arising out of a report made under this section, and the public or
private official reasonably believes that the information is already known by a
law enforcement agency or the Department of Human Services.
(3)
A person who violates subsection (1) of this section commits a Class A
violation. Prosecution under this subsection shall be commenced at any time
within 18 months after commission of the offense. [1993 c.546 §14; 1999 c.1051 §180;
2001 c.104 §149; 2001 c.904 §15; 2005 c.450 §7]
419B.015 Report form and content; notice.
(1)(a) A person making a report of child abuse, whether the report is made
voluntarily or is required by ORS 419B.010, shall make an oral report by
telephone or otherwise to the local office of the Department of Human Services,
to the designee of the department or to a law enforcement agency within the
county where the person making the report is located at the time of the
contact. The report shall contain, if known, the names and addresses of the
child and the parents of the child or other persons responsible for care of the
child, the child’s age, the nature and extent of the abuse, including any
evidence of previous abuse, the explanation given for the abuse and any other
information that the person making the report believes might be helpful in
establishing the cause of the abuse and the identity of the perpetrator.
(b)
When a report of child abuse is received by the department, the department
shall notify a law enforcement agency within the county where the report was
made. When a report of child abuse is received by a designee of the department,
the designee shall notify, according to the contract, either the department or
a law enforcement agency within the county where the report was made. When a
report of child abuse is received by a law enforcement agency, the agency shall
notify the local office of the department within the county where the report
was made.
(2)
When a report of child abuse is received under subsection (1)(a) of this
section, the entity receiving the report shall make the notification required
by subsection (1)(b) of this section according to rules adopted by the
department under ORS 419B.017.
(3)(a)
When a report alleging that a child or ward in substitute care may have been
subjected to abuse is received by the department, the department shall notify
the attorney for the child or ward, the child’s or ward’s court appointed
special advocate, the parents of the child or ward and any attorney
representing a parent of the child or ward that a report has been received.
(b)
The name and address of and other identifying information about the person who
made the report may not be disclosed under this subsection. Any person or
entity to whom notification is made under this subsection may not release any
information not authorized by this subsection.
(c)
The department shall make the notification required by this subsection within
three business days of receiving the report of abuse.
(d)
Notwithstanding the obligation imposed by this subsection, the department is
not required under this subsection to notify the parent or parent’s attorney
that a report of abuse has been received if the notification may interfere with
an investigation or assessment or jeopardize the child’s or ward’s safety. [1993
c.546 §15; 1993 c.734 §1a; 2005 c.250 §1; 2007 c.237 §1]
419B.016 Offense of false report of child
abuse. (1) A person commits the offense of
making a false report of child abuse if, with the intent to influence a
custody, parenting time, visitation or child support decision, the person:
(a)
Makes a false report of child abuse to the Department of Human Services or a
law enforcement agency, knowing that the report is false; or
(b)
With the intent that a public or private official make a report of child abuse
to the Department of Human Services or a law enforcement agency, makes a false
report of child abuse to the public or private official, knowing that the
report is false.
(2)
Making a false report of child abuse is a Class A violation. [2011 c.606 §2]
Note:
419B.016 was added to and made a part of 419B.005 to 419B.050 by legislative
action but was not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.
419B.017 Time limits for notification
between law enforcement agencies and Department of Human Services; rules.
(1) The Department of Human Services shall adopt rules establishing:
(a)
The time within which the notification required by ORS 419B.015 (1)(a) must be
made. At a minimum, the rules shall:
(A)
Establish which reports of child abuse require notification within 24 hours
after receipt;
(B)
Provide that all other reports of child abuse require notification within 10
days after receipt; and
(C)
Establish criteria that enable the department, the designee of the department
or a law enforcement agency to quickly and easily identify reports that require
notification within 24 hours after receipt.
(b)
How the notification is to be made.
(2)
The department shall appoint an advisory committee to advise the department in
adopting rules required by this section. The department shall include as
members of the advisory committee representatives of law enforcement agencies
and multidisciplinary teams formed pursuant to ORS 418.747 and other interested
parties.
(3)
In adopting rules required by this section, the department shall balance the
need for providing other entities with the information contained in a report
received under ORS 419B.015 with the resources required to make the
notification.
(4)
The department may recommend practices and procedures to local law enforcement
agencies to meet the requirements of rules adopted under this section. [2005
c.250 §3]
Note:
419B.017 was added to and made a part of 419B.005 to 419B.050 by legislative
action but was not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.
419B.020 Duty of department or law
enforcement agency receiving report; investigation; notice to parents; physical
examination; child’s consent; notice at conclusion of investigation.
(1) If the Department of Human Services or a law enforcement agency receives a
report of child abuse, the department or the agency shall immediately:
(a)
Cause an investigation to be made to determine the nature and cause of the
abuse of the child; and
(b)
Notify the Child Care Division if the alleged child abuse occurred in a child
care facility as defined in ORS 657A.250.
(2)
If the abuse reported in subsection (1) of this section is alleged to have
occurred at a child care facility:
(a)
The department and the law enforcement agency shall jointly determine the roles
and responsibilities of the department and the agency in their respective
investigations; and
(b)
The department and the agency shall each report the outcomes of their
investigations to the Child Care Division.
(3)
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
department. The department 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.
(4)
If a child is taken into protective custody by the department, the department
shall promptly make reasonable efforts to ascertain the name and address of the
child’s parents or guardian.
(5)(a)
If a child is taken into protective custody by the department or a law
enforcement official, the department 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 the child has been taken into custody and general
information about the child’s placement, and the telephone number of the local
office of the department 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.
(c)
The department 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 department, if possible,
shall immediately notify the person or organization that the child has been
taken into protective custody.
(6)
If a law enforcement officer or the department, 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)(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
department to consent to physical examinations of the child at other times.
(7)
A minor child of 12 years of age or older may refuse to consent to the
examination described in subsection (6) 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.
(8)
When the department completes an investigation under this section, if the
person who made the report of child abuse provided contact information to the
department, the department shall notify the person about whether contact with
the child was made, whether the department determined that child abuse occurred
and whether services will be provided. The department is not required to
disclose information under this subsection if the department determines that
disclosure is not permitted under ORS 419B.035. [1993 c.546 §16; 1993 c.622 §7a;
1997 c.130 §13; 1997 c.703 §1; 1997 c.873 §33; 2007 c.501 §4; 2007 c.781 §1]
419B.021 Degree requirements for persons
conducting investigation or making determination regarding child.
(1) Except as provided in subsection (2) of this section, the following persons
must possess a bachelor’s, master’s or doctoral degree from an accredited
institution of higher education:
(a)
A person who conducts an investigation under ORS 419B.020; and
(b)
A person who makes the following determinations:
(A)
That a child must be taken into protective custody under ORS 419B.150; and
(B)
That the child should not be released to the child’s parent or other
responsible person under ORS 419B.165 (2).
(2)
Subsection (1) of this section does not apply to:
(a)
A person who was employed or otherwise engaged by the Department of Human
Services for the purpose of conducting investigations or making determinations
before January 1, 2012, provided the person’s employment or engagement for
these purposes has been continuous and uninterrupted.
(b)
A law enforcement official as that term is defined in ORS 147.005. [2011 c.431 §1]
Note:
Section 2, chapter 431, Oregon Laws 2011, provides:
Sec. 2.
Section 1 of this 2011 Act [419B.021] applies to child abuse investigations and
protective custody determinations made on or after the effective date of this
2011 Act [January 1, 2012]. [2011 c.431 §2]
Note:
419B.021 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 419B or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
419B.022 Short title.
ORS 419B.023 and 419B.024 shall be known and may be cited as “Karly’s Law.” [2007
c.674 §1]
Note:
419B.022 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 419B or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
419B.023 Duties of person conducting
investigation under ORS 419B.020. (1) As used
in this section:
(a)
“Designated medical professional” means the person described in ORS 418.747 (9)
or the person’s designee.
(b)
“Suspicious physical injury” includes, but is not limited to:
(A)
Burns or scalds;
(B)
Extensive bruising or abrasions on any part of the body;
(C)
Bruising, swelling or abrasions on the head, neck or face;
(D)
Fractures of any bone in a child under the age of three;
(E)
Multiple fractures in a child of any age;
(F)
Dislocations, soft tissue swelling or moderate to severe cuts;
(G)
Loss of the ability to walk or move normally according to the child’s
developmental ability;
(H)
Unconsciousness or difficulty maintaining consciousness;
(I)
Multiple injuries of different types;
(J)
Injuries causing serious or protracted disfigurement or loss or impairment of
the function of any bodily organ; or
(K)
Any other injury that threatens the physical well-being of the child.
(2)
If a person conducting an investigation under ORS 419B.020 observes a child who
has suffered suspicious physical injury and the person is certain or has a
reasonable suspicion that the injury is or may be the result of abuse, the
person shall, in accordance with the protocols and procedures of the county
multidisciplinary child abuse team described in ORS 418.747:
(a)
Immediately photograph or cause to have photographed the suspicious physical
injuries in accordance with ORS 419B.028; and
(b)
Ensure that a designated medical professional conducts a medical assessment
within 48 hours, or sooner if dictated by the child’s medical needs.
(3)
The requirement of subsection (2) of this section shall apply:
(a)
Each time suspicious physical injury is observed by Department of Human
Services or law enforcement personnel:
(A)
During the investigation of a new allegation of abuse; or
(B)
If the injury was not previously observed by a person conducting an
investigation under ORS 419B.020; and
(b)
Regardless of whether the child has previously been photographed or assessed
during an investigation of an allegation of abuse.
(4)(a)
Department or law enforcement personnel shall make a reasonable effort to
locate a designated medical professional. If after reasonable efforts a
designated medical professional is not available to conduct a medical
assessment within 48 hours, the child shall be evaluated by an available
physician.
(b)
If the child is evaluated by a health care provider as defined in ORS 127.505
other than a designated medical professional, the health care provider shall
make photographs, clinical notes, diagnostic and testing results and any other
relevant materials available to the designated medical professional for
consultation within 72 hours following evaluation of the child.
(c)
The person conducting the medical assessment may consult with and obtain
records from the child’s regular pediatrician or family physician under ORS
419B.050.
(5)
Nothing in this section prevents a person conducting a child abuse
investigation from seeking immediate medical treatment from a hospital
emergency room or other medical provider for a child who is physically injured
or otherwise in need of immediate medical care.
(6)
If the child described in subsection (2) of this section is less than five
years of age, the designated medical professional may, within 14 days, refer
the child for a screening for early intervention services or early childhood
special education, as those terms are defined in ORS 343.035. The referral may
not indicate the child is subject to a child abuse investigation unless written
consent is obtained from the child’s parent authorizing such disclosure. If the
child is already receiving those services, or is enrolled in the Head Start
program, a person involved in the delivery of those services to the child shall
be invited to participate in the county multidisciplinary child abuse team’s
review of the case and shall be provided with paid time to do so by the person’s
employer.
(7)
Nothing in this section limits the rights provided to minors in ORS chapter 109
or the ability of a minor to refuse to consent to the medical assessment
described in this section. [2007 c.674 §3; 2009 c.296 §1]
Note:
419B.023 was added to and made a part of 419B.005 to 419B.050 by legislative
action but was not added to any smaller series therein. See Preface to Oregon
Revised Statutes for further explanation.
419B.024 Critical Incident Response Team
for child fatality; rules. (1) The Department of Human
Services shall assign a Critical Incident Response Team within 24 hours after
the department determines that a child fatality was likely the result of child
abuse or neglect if:
(a)
The child was in the custody of the department at the time of death; or
(b)
The child was the subject of a child protective services assessment by the
department within the 12 months preceding the fatality.
(2)
During the course of its review of the case, the Critical Incident Response
Team may include or consult with the district attorney from the county in which
the incident resulting in the fatality occurred.
(3)
The department shall adopt rules necessary to carry out the provisions of this
section. The rules adopted by the department shall substantially conform with
the department’s child welfare protocol regarding Notification and Review of
Critical Incidents. [2007 c.674 §4]
Note:
419B.024 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 419B or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
419B.025 Immunity of person making report
in good faith. Anyone participating in good faith in
the making of a report of child abuse and who has reasonable grounds for the
making thereof shall have immunity from any liability, civil or criminal, that
might otherwise be incurred or imposed with respect to the making or content of
such report. Any such participant shall have the same immunity with respect to
participating in any judicial proceeding resulting from such report. [1993
c.546 §17]
419B.028 Photographing child during
investigation; photographs as records. (1) In
carrying out its duties under ORS 419B.020, any law enforcement agency or the
Department of Human Services may photograph or cause to have photographed any
child subject of the investigation for purposes of preserving evidence of the
child’s condition at the time of the investigation. Photographs of the anal or
genital region may be taken only by medical personnel.
(2)
When a child is photographed pursuant to ORS 419B.023, the person taking the
photographs or causing to have the photographs taken shall, within 48 hours or
by the end of the next regular business day, whichever occurs later:
(a)
Provide hard copies or prints of the photographs and, if available, copies of
the photographs in an electronic format to the designated medical professional
described in ORS 418.747 (9); and
(b)
Place hard copies or prints of the photographs and, if available, copies of the
photographs in an electronic format in any relevant files pertaining to the
child maintained by the law enforcement agency or the department.
(3)
For purposes of ORS 419B.035, photographs taken under authority of this section
shall be considered records. [1993 c.546 §18; 2007 c.674 §5]
419B.030 Central registry of reports.
(1) A central state registry shall be established and maintained by the
Department of Human Services. The local offices of the department shall report
to the state registry in writing when an investigation has shown reasonable
cause to believe that a child’s condition was the result of abuse even if the
cause remains unknown. Each registry shall contain current information from
reports cataloged both as to the name of the child and the name of the family.
(2)
When the department provides specific case information from the central state
registry, the department shall include a notice that the information does not
necessarily reflect any subsequent proceedings that are not within the jurisdiction
of the department. [1993 c.546 §19]
419B.035 Confidentiality of records; when
available to others. (1) Notwithstanding the
provisions of ORS 192.001 to 192.170, 192.210 to 192.505 and 192.610 to 192.990
relating to confidentiality and accessibility for public inspection of public
records and public documents, reports and records compiled under the provisions
of ORS 419B.010 to 419B.050 are confidential and may not be disclosed except as
provided in this section. The Department of Human Services shall make the
records available to:
(a)
Any law enforcement agency or a child abuse registry in any other state for the
purpose of subsequent investigation of child abuse;
(b)
Any physician, at the request of the physician, regarding any child brought to
the physician or coming before the physician for examination, care or
treatment;
(c)
Attorneys of record for the child or child’s parent or guardian in any juvenile
court proceeding;
(d)
Citizen review boards established by the Judicial Department for the purpose of
periodically reviewing the status of children, youths and youth offenders under
the jurisdiction of the juvenile court under ORS 419B.100 and 419C.005. Citizen
review boards may make such records available to participants in case reviews;
(e)
A court appointed special advocate in any juvenile court proceeding in which it
is alleged that a child has been subjected to child abuse or neglect;
(f)
The Child Care Division for certifying, registering or otherwise regulating
child care facilities;
(g)
The Office of Children’s Advocate;
(h)
The Teacher Standards and Practices Commission for investigations conducted
under ORS 342.176 involving any child or any student in grade 12 or below;
(i)
Any person, upon request to the Department of Human Services, if the reports or
records requested regard an incident in which a child, as the result of abuse,
died or suffered serious physical injury as defined in ORS 161.015. Reports or
records disclosed under this paragraph must be disclosed in accordance with ORS
192.410 to 192.505; and
(j)
The Child Care Division of the Employment Department for purposes of ORS
657A.030 (8)(g).
(2)(a)
When disclosing reports and records pursuant to subsection (1)(i) of this
section, the Department of Human Services may exempt from disclosure the names,
addresses and other identifying information about other children, witnesses,
victims or other persons named in the report or record if the department
determines, in written findings, that the safety or well-being of a person named
in the report or record may be jeopardized by disclosure of the names,
addresses or other identifying information, and if that concern outweighs the
public’s interest in the disclosure of that information.
(b)
If the Department of Human Services does not have a report or record of abuse
regarding a child who, as the result of abuse, died or suffered serious
physical injury as defined in ORS 161.015, the department may disclose that
information.
(3)
The Department of Human Services may make reports and records compiled under
the provisions of ORS 419B.010 to 419B.050 available to any person,
administrative hearings officer, court, agency, organization or other entity
when the department determines that such disclosure is necessary to administer
its child welfare services and is in the best interests of the affected child,
or that such disclosure is necessary to investigate, prevent or treat child
abuse and neglect, to protect children from abuse and neglect or for research
when the Director of Human Services gives prior written approval. The
Department of Human Services shall adopt rules setting forth the procedures by
which it will make the disclosures authorized under this subsection or
subsection (1) or (2) of this section. The name, address and other identifying
information about the person who made the report may not be disclosed pursuant
to this subsection and subsection (1) of this section.
(4)
A law enforcement agency may make reports and records compiled under the
provisions of ORS 419B.010 to 419B.050 available to other law enforcement
agencies, district attorneys, city attorneys with criminal prosecutorial
functions and the Attorney General when the law enforcement agency determines
that disclosure is necessary for the investigation or enforcement of laws
relating to child abuse and neglect.
(5)
A law enforcement agency, upon completing an investigation and closing the file
in a specific case relating to child abuse or neglect, shall make reports and
records in the case available upon request to any law enforcement agency or
community corrections agency in this state, to the Department of Corrections or
to the State Board of Parole and Post-Prison Supervision for the purpose of
managing and supervising offenders in custody or on probation, parole,
post-prison supervision or other form of conditional or supervised release. A
law enforcement agency may make reports and records compiled under the
provisions of ORS 419B.010 to 419B.050 available to law enforcement, community
corrections, corrections or parole agencies in an open case when the law
enforcement agency determines that the disclosure will not interfere with an
ongoing investigation in the case. The name, address and other identifying
information about the person who made the report may not be disclosed under
this subsection or subsection (6)(b) of this section.
(6)(a)
Any record made available to a law enforcement agency or community corrections
agency in this state, to the Department of Corrections or the State Board of
Parole and Post-Prison Supervision or to a physician in this state, as
authorized by subsections (1) to (5) of this section, shall be kept
confidential by the agency, department, board or physician. Any record or
report disclosed by the Department of Human Services to other persons or
entities pursuant to subsections (1) and (3) of this section shall be kept
confidential.
(b)
Notwithstanding paragraph (a) of this subsection:
(A)
A law enforcement agency, a community corrections agency, the Department of
Corrections and the State Board of Parole and Post-Prison Supervision may
disclose records made available to them under subsection (5) of this section to
each other, to law enforcement, community corrections, corrections and parole
agencies of other states and to authorized treatment providers for the purpose
of managing and supervising offenders in custody or on probation, parole,
post-prison supervision or other form of conditional or supervised release.
(B)
A person may disclose records made available to the person under subsection
(1)(i) of this section if the records are disclosed for the purpose of
advancing the public interest.
(7)
An officer or employee of the Department of Human Services or of a law
enforcement agency or any person or entity to whom disclosure is made pursuant
to subsections (1) to (6) of this section may not release any information not
authorized by subsections (1) to (6) of this section.
(8)
As used in this section, “law enforcement agency” has the meaning given that
term in ORS 181.010.
(9)
A person who violates subsection (6)(a) or (7) of this section commits a Class
A violation. [1993 c.546 §§20,20a; 1995 c.278 §51; 1997 c.328 §8; 1999 c.1051 §181;
2003 c.14 §224; 2003 c.412 §1; 2003 c.591 §8; 2005 c.317 §1; 2005 c.659 §2;
2009 c.348 §3; 2009 c.393 §1]
Note: The
amendments to 419B.035 by section 4, chapter 348, Oregon Laws 2009, become
operative January 1, 2014. See section 6, chapter 348, Oregon Laws 2009. The
text that is operative on and after January 1, 2014, is set forth for the user’s
convenience.
419B.035.
(1) Notwithstanding the provisions of ORS 192.001 to 192.170, 192.210 to
192.505 and 192.610 to 192.990 relating to confidentiality and accessibility
for public inspection of public records and public documents, reports and
records compiled under the provisions of ORS 419B.010 to 419B.050 are
confidential and may not be disclosed except as provided in this section. The
Department of Human Services shall make the records available to:
(a)
Any law enforcement agency or a child abuse registry in any other state for the
purpose of subsequent investigation of child abuse;
(b)
Any physician, at the request of the physician, regarding any child brought to
the physician or coming before the physician for examination, care or
treatment;
(c)
Attorneys of record for the child or child’s parent or guardian in any juvenile
court proceeding;
(d)
Citizen review boards established by the Judicial Department for the purpose of
periodically reviewing the status of children, youths and youth offenders under
the jurisdiction of the juvenile court under ORS 419B.100 and 419C.005. Citizen
review boards may make such records available to participants in case reviews;
(e)
A court appointed special advocate in any juvenile court proceeding in which it
is alleged that a child has been subjected to child abuse or neglect;
(f)
The Child Care Division for certifying, registering or otherwise regulating
child care facilities;
(g)
The Office of Children’s Advocate;
(h)
The Teacher Standards and Practices Commission for investigations conducted
under ORS 342.176 involving any child or any student in grade 12 or below; and
(i)
Any person, upon request to the Department of Human Services, if the reports or
records requested regard an incident in which a child, as the result of abuse,
died or suffered serious physical injury as defined in ORS 161.015. Reports or
records disclosed under this paragraph must be disclosed in accordance with ORS
192.410 to 192.505.
(2)(a)
When disclosing reports and records pursuant to subsection (1)(i) of this
section, the Department of Human Services may exempt from disclosure the names,
addresses and other identifying information about other children, witnesses,
victims or other persons named in the report or record if the department determines,
in written findings, that the safety or well-being of a person named in the
report or record may be jeopardized by disclosure of the names, addresses or
other identifying information, and if that concern outweighs the public’s
interest in the disclosure of that information.
(b)
If the Department of Human Services does not have a report or record of abuse
regarding a child who, as the result of abuse, died or suffered serious
physical injury as defined in ORS 161.015, the department may disclose that
information.
(3)
The Department of Human Services may make reports and records compiled under
the provisions of ORS 419B.010 to 419B.050 available to any person,
administrative hearings officer, court, agency, organization or other entity
when the department determines that such disclosure is necessary to administer
its child welfare services and is in the best interests of the affected child,
or that such disclosure is necessary to investigate, prevent or treat child
abuse and neglect, to protect children from abuse and neglect or for research
when the Director of Human Services gives prior written approval. The
Department of Human Services shall adopt rules setting forth the procedures by
which it will make the disclosures authorized under this subsection or
subsection (1) or (2) of this section. The name, address and other identifying
information about the person who made the report may not be disclosed pursuant
to this subsection and subsection (1) of this section.
(4)
A law enforcement agency may make reports and records compiled under the
provisions of ORS 419B.010 to 419B.050 available to other law enforcement
agencies, district attorneys, city attorneys with criminal prosecutorial
functions and the Attorney General when the law enforcement agency determines
that disclosure is necessary for the investigation or enforcement of laws
relating to child abuse and neglect.
(5)
A law enforcement agency, upon completing an investigation and closing the file
in a specific case relating to child abuse or neglect, shall make reports and
records in the case available upon request to any law enforcement agency or
community corrections agency in this state, to the Department of Corrections or
to the State Board of Parole and Post-Prison Supervision for the purpose of
managing and supervising offenders in custody or on probation, parole,
post-prison supervision or other form of conditional or supervised release. A
law enforcement agency may make reports and records compiled under the
provisions of ORS 419B.010 to 419B.050 available to law enforcement, community
corrections, corrections or parole agencies in an open case when the law
enforcement agency determines that the disclosure will not interfere with an
ongoing investigation in the case. The name, address and other identifying
information about the person who made the report may not be disclosed under
this subsection or subsection (6)(b) of this section.
(6)(a)
Any record made available to a law enforcement agency or community corrections
agency in this state, to the Department of Corrections or the State Board of
Parole and Post-Prison Supervision or to a physician in this state, as
authorized by subsections (1) to (5) of this section, shall be kept
confidential by the agency, department, board or physician. Any record or
report disclosed by the Department of Human Services to other persons or
entities pursuant to subsections (1) and (3) of this section shall be kept
confidential.
(b)
Notwithstanding paragraph (a) of this subsection:
(A)
A law enforcement agency, a community corrections agency, the Department of
Corrections and the State Board of Parole and Post-Prison Supervision may
disclose records made available to them under subsection (5) of this section to
each other, to law enforcement, community corrections, corrections and parole
agencies of other states and to authorized treatment providers for the purpose
of managing and supervising offenders in custody or on probation, parole,
post-prison supervision or other form of conditional or supervised release.
(B)
A person may disclose records made available to the person under subsection
(1)(i) of this section if the records are disclosed for the purpose of
advancing the public interest.
(7)
An officer or employee of the Department of Human Services or of a law
enforcement agency or any person or entity to whom disclosure is made pursuant
to subsections (1) to (6) of this section may not release any information not
authorized by subsections (1) to (6) of this section.
(8)
As used in this section, “law enforcement agency” has the meaning given that
term in ORS 181.010.
(9)
A person who violates subsection (6)(a) or (7) of this section commits a Class
A violation.
419B.040 Certain privileges not grounds
for excluding evidence in court proceedings on child abuse.
(1) In the case of abuse of a child, the privileges created in ORS 40.230 to
40.255, including the psychotherapist-patient privilege, the physician-patient
privilege, the privileges extended to nurses, to staff members of schools and
to regulated social workers and the husband-wife privilege, shall not be a
ground for excluding evidence regarding a child’s abuse, or the cause thereof,
in any judicial proceeding resulting from a report made pursuant to ORS
419B.010 to 419B.050.
(2)
In any judicial proceedings resulting from a report made pursuant to ORS
419B.010 to 419B.050, either spouse shall be a competent and compellable
witness against the other. [1993 c.546 §21; 2009 c.442 §37]
419B.045 Investigation conducted on public
school premises; notification; role of school personnel.
If an investigation of a report of child abuse is conducted on public school
premises, the school administrator shall first be notified that the
investigation is to take place, unless the school administrator is a subject of
the investigation. The school administrator or a school staff member designated
by the administrator may, at the investigator’s discretion, be present to
facilitate the investigation. The Department of Human Services or the law
enforcement agency making the investigation shall be advised of the child’s
disabling conditions, if any, prior to any interview with the affected child. A
school administrator or staff member is not authorized to reveal anything that
transpires during an investigation in which the administrator or staff member
participates nor shall the information become part of the child’s school
records. The school administrator or staff member may testify at any subsequent
trial resulting from the investigation and may be interviewed by the respective
litigants prior to any such trial. [1993 c.546 §22; 2003 c.14 §225]
419B.050 Authority of health care provider
to disclose information; immunity from liability. (1)
Upon notice by a law enforcement agency, the Department of Human Services, a
member agency of a county multidisciplinary child abuse team or a member of a
county multidisciplinary child abuse team that a child abuse investigation is
being conducted under ORS 419B.020, a health care provider must permit the law
enforcement agency, the department, the member agency of the county
multidisciplinary child abuse team or the member of the county
multidisciplinary child abuse team 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)
As used in this section, “health care provider” has the meaning given that term
in ORS 192.556. [1997 c.873 §27; 1999 c.537 §3; 2001 c.104 §150; 2005 c.562 §27]
JUVENILE COURT
(Generally)
419B.090 Juvenile court; jurisdiction;
policy. (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)(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.
(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 safeguard and promote each child’s
right to safety, stability and well-being. The State of Oregon recognizes the
importance of a child’s relationships with parents, siblings, grandparents and
other relatives.
(4)
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 this chapter 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, the right to:
(a)
Guide the secular and religious education of their children;
(b)
Make health care decisions for their children; and
(c)
Discipline their children.
(5)
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 it possible for the child to
safely return home 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.
(6)
The State of Oregon recognizes the value of the Indian Child Welfare Act and
hereby incorporates the policies of that Act. [1997 c.873 §2a; 1999 c.859 §22;
2001 c.686 §21; 2007 c.71 §112; 2007 c.806 §3]
419B.100 Jurisdiction; bases; Indian
children. (1) Except as otherwise provided in
subsection (6) of this section and ORS 107.726, the juvenile court has
exclusive original jurisdiction in any case involving a person who is under 18
years of age and:
(a)
Who is beyond the control of the person’s parents, guardian or other person
having custody of the person;
(b)
Whose behavior is such as to endanger the welfare of the person or of others;
(c)
Whose condition or circumstances are such as to endanger the welfare of the
person or of others;
(d)
Who is dependent for care and support on a public or private child-caring
agency that needs the services of the court in planning for the best interest
of the person;
(e)
Whose parents or any other person or persons having custody of the person have:
(A)
Abandoned the person;
(B)
Failed to provide the person with the care or education required by law;
(C)
Subjected the person to cruelty, depravity or unexplained physical injury; or
(D)
Failed to provide the person with the care, guidance and protection necessary
for the physical, mental or emotional well-being of the person;
(f)
Who has run away from the home of the person;
(g)
Who has filed a petition for emancipation pursuant to ORS 419B.550 to 419B.558;
or
(h)
Who is subject to an order entered under ORS 419C.411 (7)(a).
(2)
The court shall have jurisdiction under subsection (1) of this section even
though the child is receiving adequate care from the person having physical
custody of the child.
(3)
The provisions of subsection (1) of this section do not prevent a court of
competent jurisdiction from entertaining a civil action or suit involving a
child.
(4)
The court does not have further jurisdiction as provided in subsection (1) of
this section after a minor has been emancipated pursuant to ORS 419B.550 to
419B.558.
(5)(a)
An Indian tribe has exclusive jurisdiction over any child custody proceeding
involving an Indian child who resides or is domiciled within the reservation of
the tribe, except where the jurisdiction is otherwise vested in the state by
existing federal law.
(b)
Upon the petition of either parent, the Indian custodian or the Indian child’s
tribe, the juvenile court, absent good cause to the contrary and absent
objection by either parent, shall transfer a proceeding for the foster care
placement of, or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child’s tribe, to
the jurisdiction of the tribe.
(c)
The juvenile court shall give full faith and credit to the public acts, records
and judicial proceedings of an Indian tribe applicable to an Indian child
custody proceeding to the same extent that the juvenile court gives full faith
and credit to the public acts, records and judicial proceedings of any other
entity. [1993 c.33 §53; 1993 c.546 §10; 1993 c.643 §5; 2005 c.843 §31; 2011
c.291 §5]
419B.110 Emergency medical care; court may
authorize. Whether or not a petition has been
filed, if a child requires emergency medical care, including surgery, and no
parent is available or willing to consent to the care, a judge of the juvenile
court may authorize the care. The judge may thereafter direct the filing of a
new petition. [1993 c.546 §24]
419B.115
[1993 c.546 §25; 1997 c.479 §2; 1997 c.873 §21; 1999 c.859 §7; 2001 c.214 §1;
2001 c.622 §§39,39a; 2001 c.962 §83; renumbered 419B.875 in 2001]
419B.116 Intervention; caregiver
relationship; rights of limited participation.
(1)(a) As used in this section, “caregiver relationship” means a relationship
between a person and a child or ward:
(A)
That has existed:
(i)
For the 12 months immediately preceding the initiation of the dependency
proceeding;
(ii)
For at least six months during the dependency proceeding; or
(iii)
For half of the child or ward’s life if the child or ward is less than six
months of age;
(B)
In which the person had physical custody of the child or ward or resided in the
same household as the child or ward;
(C)
In which the person provided the child or ward on a daily basis with the love,
nurturing and other necessities required to meet the child or ward’s
psychological and physical needs; and
(D)
On which the child depended to meet the child or ward’s needs.
(b)
“Caregiver relationship” does not include a relationship between a child or
ward and a person who is the nonrelated foster parent of the child or ward
unless the relationship continued for a period of at least 12 consecutive
months.
(2)
A person asserting that the person has a caregiver relationship with a child or
ward may file a motion for intervention in a juvenile dependency proceeding.
(3)
Filing a motion under subsection (2) of this section is the sole means by which
a person may become a party to a juvenile dependency proceeding as an
intervenor. An order granting intervention under this section is exclusively
for juvenile dependency proceedings and does not confer standing or rights of
intervention in any other action. Intervention is not allowed in proceedings
under ORS 419B.500.
(4)
A motion for intervention under subsection (2) of this section must state:
(a)
The person’s relationship to the child or ward and the person’s involvement in
the child or ward’s life;
(b)
The reason that intervention is sought;
(c)
How the person’s intervention is in the best interests of the child or ward;
(d)
Why the existing parties cannot adequately present the case; and
(e)
What specific relief is being sought.
(5)(a)
If a party wishes to oppose a motion for intervention, the party must file a
written objection to the motion stating the grounds for the objection no later
than 21 days after the motion is filed. If no written objection is filed as
provided in this paragraph, the court may grant the motion without a hearing.
Except as provided in paragraph (b) of this subsection, if a written objection
is filed as provided in this paragraph, the court shall hold a hearing on the
motion.
(b)
If a motion for intervention does not state a prima facie case as to the facts
that must be proved under paragraph (c) of this subsection, the court may deny
the motion without a hearing.
(c)
If the court holds a hearing on the motion for intervention, the court may
grant the motion for intervention if the person moving to intervene in the case
proves by a preponderance of the evidence that:
(A)
A caregiver relationship exists between the person and the child or ward;
(B)
The intervention is in the best interests of the child or ward;
(C)
The reason for intervention and the specific relief sought are consistent with
the best interests of the child or ward; and
(D)
The existing parties cannot adequately present the case.
(6)
A person granted intervention is a party to the case and, except as provided in
subsection (10) of this section, may be granted such relief as the court
determines to be appropriate and in the best interests of the child or ward.
(7)
A person who is not a party under ORS 419B.875 may seek rights of limited
participation by filing a written motion for limited participation in a
juvenile court proceeding. The motion must state:
(a)
The reason that limited participation is being sought;
(b)
How the person’s limited participation is in the best interests of the child or
ward;
(c)
Why the parties cannot adequately present the case; and
(d)
The specific rights of limited participation that are being sought.
(8)(a)
If a party wishes to oppose a motion filed under subsection (7) of this
section, the party must file a written objection to the motion stating the
grounds for the objection no later than 21 days after the motion is filed. If
no written objection is filed as provided in this paragraph, the court may
grant the motion without a hearing.
(b)
If a motion seeking rights of limited participation does not state a prima
facie case as to the facts that must be proved under paragraph (c) of this subsection,
the court may deny the motion without a hearing.
(c)
If the court holds a hearing on the motion seeking rights of limited
participation, the court may grant the motion if the person seeking rights of
limited participation proves by a preponderance of the evidence that:
(A)
The person’s limited participation is in the best interests of the child or
ward;
(B)
The reason for limited participation and the specific rights sought are
consistent with the best interests of the child or ward; and
(C)
The parties cannot adequately present the case.
(9)
If the court grants a motion under subsection (8) of this section, the court
shall specify in the order the rights of limited participation that are being
granted.
(10)(a)
At any time, a person granted intervention or a person granted rights of
limited participation may move to be considered a temporary placement or
visitation resource for the child or ward.
(b)
At any time after a court has determined at a permanency hearing that the
permanent plan for the child or ward should be something other than to return
home, a person granted intervention may move to be considered the permanent
placement resource for the child or ward.
(11)
The court may modify or set aside any order granting intervention or rights of
limited participation as provided in ORS 419B.923. [2001 c.624 §3; 2003 c.14 §226;
2003 c.231 §3; 2003 c.315 §2; 2003 c.396 §35a; 2005 c.449 §2; 2005 c.676 §2;
2009 c.92 §1; 2009 c.182 §1]
419B.117 Notice to parents or guardian of
child; when given; contents. (1) At the
first appearance by the parents or guardian of a child before the court, the
court shall inform the parents or guardian verbally and provide a standard
notice describing:
(a)
The obligation of the parents or guardian to pay for compensation and
reasonable expenses for counsel for the child, support of the child while the
child is in the custody of a state-financed or state-supported residence and
any other obligations to pay money that may arise as a result of the child
being within the jurisdiction of the court;
(b)
The assignment of support rights under ORS 419B.406;
(c)
The right of the parents or guardian to appeal a decision on jurisdiction or
disposition made by the court; and
(d)
The time for filing an appeal of a decision by the court.
(2)
The court shall prepare and provide the standard notice required under
subsection (1) of this section.
(3)
The court shall place a notation in the record of the case of the date that the
parents or guardian were provided information under this section. [1997 c.748 §2]
419B.118 Venue.
(1) Subject to the provisions of subsections (2), (3) and (4) of this section,
a juvenile court proceeding shall commence in the county of wardship if, at the
commencement of the proceeding, wardship exists as a result of proceedings
under this chapter, or, in the absence of such wardship, in the county where
the child resides.
(2)
If the proceeding is based on allegations of jurisdiction under ORS 419B.100
(1)(a), (b) or (c), the proceeding may also commence in the county in which the
alleged act or behavior took place.
(3)
If the proceeding is based on allegations of jurisdiction under ORS 419B.100
(1)(b), (c), (d), (e) or (f), the proceedings may also commence in the county
where the child is present when the proceeding begins.
(4)
A termination of parent-child relationship proceeding may be commenced in the
county of wardship or where the child or ward resides or is found unless the
child is an Indian child subject to the Indian Child Welfare Act and the tribal
court has assumed jurisdiction. [1993 c.33 §54; 1993 c.546 §26; 2003 c.396 §36]
419B.121 Return of runaway children to
another state. Notwithstanding ORS 419C.145, the court
may order the detention of a child who resides in another state if the court
finds probable cause to believe that the child has run away from home or from a
placement. If a child is ordered detained under this section, the court shall
make such orders as are necessary to cause the child to be immediately returned
to the child’s state of residence. [1993 c.33 §55]
419B.124 Transfer to juvenile court from
another court. If during the pendency of a proceeding
in any court other than a juvenile court it is ascertained that the age of the
person who is the subject of the proceeding is such that the matter is within
the exclusive jurisdiction of the juvenile court, it is the duty of the court
in which the proceeding is pending forthwith to transfer the proceeding,
together with all the papers, documents and testimony connected therewith, to
the juvenile court of the county in which the proceeding is pending. [1993 c.33
§56]
419B.127 Transfer to court of county of
child or ward’s residence. If a proceeding is initiated in
a court of a county other than the county in which the child resides, that
court, on its own motion or on the motion of a party made at any time prior to
disposition, shall transfer the proceeding to the court of the county of the
child’s residence for such further proceeding as the receiving court finds
proper. A like transfer may be made if the residence of a child or ward changes
during the proceeding, or if the ward has been adjudicated within the
jurisdiction of the court when the proceeding is initiated on grounds specified
in ORS 419B.100 (1)(b) or (c) and other proceedings involving the ward are
pending in the county of the ward’s residence. Certified copies of the court
records pertaining to the immediate proceeding shall accompany the case on
transfer. [1993 c.33 §57; 2003 c.396 §37]
419B.130 Delegation of jurisdiction by
county of residence. Where a juvenile court
proceeding is pending in a county other than the county in which the child
resides and the case is transferable under ORS 419B.124 or 419B.127, the
juvenile court of the county in which the child resides may authorize the court
in which the case is pending to proceed with the case in either of the
following ways where it will facilitate disposition of the case without adverse
effect on the interests of the child:
(1)
To hear, determine and dispose of the case in its entirety; or
(2)
Prior to transferring the case, to conduct a hearing into the facts alleged to
bring the child within the jurisdiction of the juvenile court, to determine the
facts and to certify its findings to the juvenile court of the county in which
the child resides. [1993 c.33 §58]
419B.132 Delegation of jurisdiction among
county juvenile courts. (1) When a proceeding is pending
in the juvenile court of any county, the juvenile court of that county may
authorize the juvenile court of any other county to do one or both of the
following, when it will facilitate the disposition of the case without adverse
effect on the interests of the child or ward:
(a)
To conduct a hearing into the facts alleged to bring the child within the
jurisdiction of the juvenile court, to determine the facts and to certify its
findings to the court in which the case is pending.
(b)
To assume jurisdiction over the case and administer protection supervision of
the ward, when the court in which the proceeding is pending:
(A)
Finds that the ward has moved to the other county or orders as part of its
disposition of the proceeding that legal custody of the ward be given to a
person residing in the other county; and
(B)
Is advised that the court of the other county will accept the wardship and
jurisdiction of the case. The county accepting wardship and jurisdiction shall
pay the cost of administering protective supervision of the ward, unless the
transferring and receiving counties otherwise agree. The county transferring
jurisdiction shall pay the cost of transporting the ward, unless the
transferring and receiving counties otherwise agree.
(2)
When the juvenile court of one county is authorized by the juvenile court of
another county to conduct a hearing into facts as provided in this section or
ORS 419B.130, the facts so found and certified may be taken as established by
the court of the county authorizing the hearing and, if adopted by written
order of the latter court, form a part of its record in the case. [1993 c.33 §59;
2003 c.396 §38]
419B.135 Transfer of case; transportation
of child or ward. If the child or ward who is the
subject of the proceeding is, at the time of a transfer or temporary transfer
provided for in ORS 419B.127, 419B.130 and 419B.132, in shelter care or for
other reason needs transportation to the other county, the county in which the
child or ward resides shall make such order or provision for the transportation
and safekeeping of the child or ward as is appropriate in the circumstances,
including an order directing any peace officer of the county in which the child
or ward resides to transfer the child or ward in the manner directed. [1993
c.33 §60; 2003 c.396 §39]
(Protective Custody)
419B.150 When protective custody authorized;
disposition of runaway child taken into protective custody.
(1) A child may be taken into protective custody by a peace officer, counselor,
employee of the Department of Human Services or any other person authorized by
the juvenile court of the county in which the child is found, in the following
circumstances:
(a)
When the child’s condition or surroundings reasonably appear to be such as to
jeopardize the child’s welfare;
(b)
When the juvenile court, by order indorsed on the summons as provided in ORS
419B.839 or otherwise, has ordered that the child be taken into protective
custody; or
(c)
When it reasonably appears that the child has run away from home.
(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 department 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, why
protective custody is in the best interests of the child and the reasonable
efforts or, if the Indian Child Welfare Act applies, active efforts made by the
department to eliminate the need for protective custody of the child.
(b)
Except as provided in paragraph (c) of this subsection, an order directing that
a child be taken into protective custody under subsection (1) of this section
shall contain written findings, including a brief description of the reasonable
efforts or, if the Indian Child Welfare Act applies, active efforts to
eliminate the need for protective custody of the child that the department has
made and why protective custody is in the best interests of the child.
(c)
The court may issue an order even though no services have been provided if the
court makes written findings that no existing services could eliminate the need
for protective custody of the child and that protective custody is in the best
interests of the child.
(3)
When a child is taken into protective custody as a runaway under subsection (1)
of this section, the peace officer or other person who takes the child into
custody:
(a)(A)
Shall release the child without unnecessary delay to the custody of the child’s
parent or guardian or to a shelter facility that has agreed to provide care and
services to children who have run away from home and that has been designated
by the juvenile court to provide such care and services; or
(B)
Shall follow the procedures described in ORS 419B.160, 419B.165, 419B.168 and
419B.171;
(b)
Shall, if possible, determine the preferences of the child and the child’s
parent or guardian as to whether the best interests of the child are better
served by placement in a shelter facility that has agreed to provide care and
services to children who have run away from home and that has been designated
by the juvenile court to provide such care and services or by release to the
child’s parent or guardian; and
(c)
Notwithstanding ORS 419B.165 and subsection (1) of this section, shall release
the child to a shelter facility that has agreed to provide care and services to
children who have run away from home and that has been designated by the
juvenile court to provide such care and services if it reasonably appears that
the child would not willingly remain at home if released to the child’s parent
or guardian. [1993 c.33 §61; 1993 c.546 §27; 1997 c.873 §10; 1999 c.691 §1;
amendments by 1999 c.691 §2 repealed by 2001 c.484 §1; 2001 c.622 §§46,47; 2001
c.686 §§1,2]
419B.155 Protective custody not arrest.
(1) Protective custody shall not be deemed an arrest so far as the child is
concerned.
(2)
A peace officer taking a child into protective custody has all the privileges
and immunities of a peace officer making an arrest. [1993 c.33 §62; 1993 c.546 §28]
419B.157 Jurisdiction attaches at time of
custody. Except as otherwise provided in ORS
419B.168, 419C.094 and 419C.103, the jurisdiction of the juvenile court of the
county in which a child is taken into protective custody shall attach from the
time the child is taken into custody. [1993 c.33 §63; 1993 c.546 §29]
419B.160 Place of detention; record;
parental notice required. (1) A child or ward may not be
detained at any time in a police station, jail, prison or other place where
adults are detained, except that a child or ward may be detained in a police
station for up to five hours when necessary to obtain the child or ward’s name,
age, residence and other identifying information.
(2)
All peace officers shall keep a record of children taken into protective
custody and shall promptly notify the juvenile court or counselor of all
children taken into protective custody.
(3)
As soon as practicable after the child is taken into custody, the person taking
the child into custody shall notify the child’s parent, guardian or other
person responsible for the child. The notice shall inform the parent, guardian
or other person of the action taken and the time and place of the hearing. [1993
c.33 §64; 1993 c.320 §1; 1993 c.546 §30; 2003 c.396 §40]
419B.165 Release of child taken into
custody. The person taking the child into
custody shall release the child to the custody of the child’s parent or other
responsible person in this state, except in the following cases:
(1)
Where the court has issued an order directing that the child be taken into
protective custody.
(2)
Where the person taking the child into custody has probable cause to believe
that the welfare of the child or others may be immediately endangered by the
release of the child. [1993 c.33 §65; 1993 c.546 §31]
419B.168 Procedure when child is not
released. (1) If a child taken into protective
custody is not released as provided in ORS 419B.165 and the juvenile court for
the county has not established the alternative procedure authorized in
subsection (4) of this section, the person taking the child into custody shall,
without unnecessary delay, do one of the following:
(a)
Take the child before the court or a person appointed by the court to effect
disposition under ORS 419B.165.
(b)
Take the child to a place of detention or shelter care or a public or private
agency designated by the court and as soon as possible thereafter notify the
court that the child has been taken into custody.
(2)
Where a child residing in some other county is taken into protective custody
the child may be:
(a)
Released to the child’s parent or other responsible person in this state as
provided in ORS 419B.165.
(b)
Delivered to a peace officer or juvenile counselor in the county in which the
child resides, if such delivery can be made without unnecessary delay. In such
event, the person to whom the child is delivered shall assume protective
custody of the child and shall proceed as provided in this chapter.
(3)
Where a child is released or delivered as provided in subsection (2) of this
section, the jurisdiction of the juvenile court of the county in which the
child resides shall attach from the time the child is taken into custody.
(4)
The juvenile court may establish, as an alternative to the provisions of
subsection (1) of this section, that if a child taken into protective custody
is not released as provided in ORS 419B.165, procedures shall be followed that
comply with the following:
(a)
The person taking the child into custody may communicate, by telecommunications
or otherwise, with the person appointed by the court to effect disposition
under ORS 419B.175.
(b)
After interviewing the person taking the child into custody and obtaining such
other information as is considered necessary, the person appointed by the court
under ORS 419B.175 to effect disposition may exercise the authority granted
under that section and shall, in such case, direct that the person taking the
child into custody release the child or deliver the child in accordance with
such direction.
(c)
The person taking the child into custody shall comply with the direction of the
person appointed by the court to effect disposition. [1993 c.33 §66; 1993 c.546
§32]
419B.171 Report required when child is
taken into custody. Except where the child is taken
into custody pursuant to an order of the court, the person taking the child
into custody shall promptly file with the court or a counselor a brief written
report stating all of the following:
(1)
The child’s name, age and address.
(2)
The name and address of the person having legal or physical custody of the
child.
(3)
Efforts to notify the person having legal or physical custody of the child and
the results of those efforts.
(4)
Reasons for and circumstances under which the child was taken into protective
custody.
(5)
If the child is not taken to court, the placement of the child.
(6)
If the child was not released, the reason why the child was not released.
(7)
If the child is not taken to court, why the type of placement was chosen.
(8)
Efforts to determine whether the child or the parents have any Indian heritage
and the results of those efforts. If the child is an Indian child, the
placement of the child shall be according to the preferences and criteria set
out in the Indian Child Welfare Act. [1993 c.33 §67; 1993 c.546 §33]
419B.175 Initial disposition of child
taken into custody. (1) This subsection establishes
the authority and procedures that apply to a person designated by a court to
effect disposition of a child taken into protective custody or brought before
the court under ORS 419B.160, 419B.165, 419B.168 or 419B.171. The person shall,
when the person has taken custody of a child or has authority to effect
disposition of a child taken into custody:
(a)
Release the child to the custody of a parent, guardian or other responsible
person;
(b)
Release the child on the child’s own recognizance when appropriate;
(c)
Subject to ORS 419B.121 or 419B.180, place the child in shelter care or
detention. The child shall be placed in shelter care rather than detention,
unless the person has probable cause to believe that the court will be able to
detain the child under ORS 419B.121; or
(d)
Pursuant to order of the court made after the filing of a petition, hold,
retain or place the child in shelter care subject to further order.
(2)
If the child is released under subsection (1)(a) of this section, the person
releasing the child shall inform the juvenile court. [1993 c.33 §69; 1993 c.546
§35]
(Shelter Hearings)
419B.180 Shelter and detention facilities.
The juvenile court of each county shall designate the place or places in which
children are to be placed in detention or shelter care when taken into
protective custody. If the county is adjacent to another state, the court may
designate a place or places in the adjoining state where children, pursuant to
an agreement between such place or places and the juvenile department of the
county, may be placed in detention when taken into custody. A county juvenile
department shall not enter into an agreement with an out-of-state place for
detention of juveniles, as provided in this section, unless the place or places
conform to standards of this state for such a place and unless the agreement
includes a provision that the place be subject to inspection by officers of
this state under ORS 419A.061. [1993 c.33 §68; 1993 c.546 §34]
419B.183 Speedy hearing required.
A child or ward may not be held in detention or shelter care more than 24
hours, excluding Saturdays, Sundays and judicial holidays, except on order of
the court made pursuant to a hearing. [1993 c.33 §70; 2003 c.396 §41]
419B.185 Evidentiary hearing.
(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 hearing:
(a)
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 the preventive and reunification
efforts made by the department.
(b)
In determining whether a child or ward shall be removed or continued out of
home, the court shall consider whether the provision of reasonable services can
prevent or eliminate the need to separate the family.
(c)
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)
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)
When the court determines that a child or ward shall be removed from the home
or continued in care, the court shall make written findings whether the
department made diligent efforts pursuant to ORS 419B.192. The court shall
include in its written findings a brief description of the efforts made by the
department.
(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.
(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),
(d) and (e) of this section, the department shall present written documentation
to the court outlining:
(a)
The 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;
(b)
The efforts the department made pursuant to ORS 419B.192; and
(c)
Why protective custody is in the best interests of the child or ward. [1993
c.33 §71; 1993 c.295 §5; 1993 c.546 §123; 1997 c.873 §19; 1999 c.859 §8; 2001
c.686 §3; 2003 c.355 §1; 2003 c.396 §42; 2007 c.806 §4]
419B.190 [1993
c.295 §2; 1997 c.863 §3; 1999 c.65 §1; 2001 c.622 §37; renumbered 419B.845 in
2001]
(Placement of Child or Ward)
419B.192 Placement of child or ward;
preference given to relatives and caregivers; written findings of court
required. (1) If the court finds that a child or
ward is in need of placement or continuation in substitute care, there shall be
a preference given to placement of the child or ward with relatives and persons
who have a caregiver relationship with the child or ward as defined in ORS
419B.116. The Department of Human Services shall make diligent efforts to place
the child or ward with such persons and shall report to the court the efforts
made by the department to effectuate that placement.
(2)
If a child or ward in need of placement or continuation in substitute care has
a sibling also in need of placement or continuation in substitute care, the
department shall make diligent efforts to place the siblings together and shall
report to the court the efforts made by the department to carry out the
placement, unless the court finds that placement of the siblings together is
not in the best interests of the child or the ward or the child’s or the ward’s
sibling.
(3)
In attempting to place the child or ward pursuant to subsections (1) and (2) of
this section, the department shall consider, but not be limited to considering,
the following:
(a)
The ability of the person being considered to provide safety for the child or
ward, including a willingness to cooperate with any restrictions placed on
contact between the child or ward and others, and to prevent anyone from
influencing the child or ward in regard to the allegations of the case;
(b)
The ability of the person being considered to support the efforts of the
department to implement the permanent plan for the child or ward;
(c)
The ability of the person being considered to meet the child or ward’s
physical, emotional and educational needs, including the child or ward’s need
to continue in the same school or educational placement;
(d)
Which person has the closest existing personal relationship with the child or
ward if more than one person requests to have the child or ward placed with
them pursuant to this section; and
(e)
The ability of the person being considered to provide a placement for the child’s
or ward’s sibling who is also in need of placement or continuation in
substitute care.
(4)
When the court is required to make findings regarding the department’s diligent
efforts to place a child or ward with relatives or persons with a caregiver
relationship under subsection (1) of this section, and the court determines
that, contrary to the placement decision of the department, placement with a
relative is not in the best interest of the child or ward under ORS 419B.349,
the court shall make written findings setting forth the reasons why the court
finds that placement of the child or ward with an available relative is not in
the best interest of the child.
(5)
Notwithstanding subsections (1) to (3) of this section, in cases where the
Indian Child Welfare Act applies, the placement preferences of the Indian Child
Welfare Act shall be followed. [1997 c.479 §4; 1999 c.569 §9; 2003 c.396 §43;
2005 c.449 §1; 2005 c.521 §2; 2007 c.806 §5; 2009 c.565 §1]
(Counsel)
419B.195 Appointment of counsel for child
or ward; access of appointed counsel to records of child or ward.
(1) If the child, ward, parent or guardian requests counsel for the child or
ward but is without sufficient financial means to employ suitable counsel
possessing skills and experience commensurate with the nature of the petition
and the complexity of the case, the court may appoint suitable counsel to
represent the child or ward at state expense if the child or ward is determined
to be financially eligible under the policies, procedures, standards and
guidelines of the Public Defense Services Commission. Whenever requested to do
so, the court shall appoint counsel to represent the child or ward in a case
filed pursuant to ORS 419B.100. The court may not substitute one appointed
counsel for another except pursuant to the policies, procedures, standards and
guidelines of the Public Defense Services Commission.
(2)
Upon presentation of the order of appointment under this section by the
attorney for the child or ward, any agency, hospital, school organization,
division or department of the state, doctor, nurse or other health care
provider, psychologist, psychiatrist, police department or mental health clinic
shall permit the attorney to inspect and copy any records of the child or ward
involved in the case, without the consent of the child or ward or parents. This
subsection does not apply to records of a police agency relating to an ongoing
investigation prior to charging. [1993 c.33 §72; 1993 c.234 §1; 1993 c.546 §38;
2001 c.962 §43; 2003 c.396 §§44,45; 2003 c.449 §§9,46]
419B.198 Responsibility for payment of
costs related to provision of appointed counsel for child or ward.
(1) When the court appoints counsel to represent a child or ward, it may order
the parent, if able, or guardian of the estate, if the estate is able, to pay
to the Public Defense Services Account in the General Fund, through the clerk
of the court, in full or in part the administrative costs of determining the
ability of the parents or estate to pay for legal services and the costs of the
legal and other services that are related to the provision of appointed
counsel.
(2)
The test of the parent’s or estate’s ability to pay costs under subsection (1)
of this section is the same test as applied to appointment of counsel for
defendants under ORS 135.050 or under the policies, procedures, standards and
guidelines adopted under ORS 151.216. If counsel is provided at state expense,
the court shall apply this test in accordance with the guidelines adopted by
the Public Defense Services Commission under ORS 151.485.
(3)
If counsel is provided at state expense, the court shall determine the amount
the parents or estate is required to pay for the costs of administrative, legal
and other services related to the provision of appointed counsel in the same
manner as this amount is determined under ORS 151.487.
(4)
The court’s order of payment is enforceable in the same manner as an order of
support under ORS 419B.408. [1993 c.33 §73; 1997 c.761 §6; 2001 c.962 §44; 2003
c.396 §§46,47; 2003 c.449 §10]
419B.201 Compensation for court-appointed
counsel for child or ward under ORS 135.055. When
the court appoints counsel for the child or ward and the child or ward is
determined to be entitled to, and financially eligible for, appointment of
counsel at state expense, and the parent or guardian is without sufficient
financial means to employ counsel, the compensation for counsel and reasonable
fees and expenses of investigation, preparation and presentation paid or
incurred shall be determined and paid as provided in ORS 135.055. [1993 c.33 §74;
2001 c.962 §45; 2003 c.396 §§48,49; 2003 c.449 §30]
419B.205 Appointment of counsel for parent
or legal guardian. (1) Counsel shall be appointed
for the parent or legal guardian whenever the nature of the proceedings and due
process so require, and when the parent or legal guardian has been determined
by the court to be eligible to receive appointed counsel under the standard in
ORS 135.050 or the policies, procedures, standards and guidelines adopted under
ORS 151.216. In deciding whether to appoint counsel under this section, the
court shall consider the following factors:
(a)
The duration and degree of invasiveness of the interference with the
parent-child relationship that possibly could result from the proceeding;
(b)
The complexity of the issues and evidence;
(c)
The nature of allegations and evidence contested by the parent or legal
guardian; and
(d)
The effect the facts found or the disposition in the proceeding may have on
later proceedings or events, including but not limited to termination of
parental rights or criminal proceedings.
(2)
The court may not substitute one appointed counsel for another except pursuant
to the policies, procedures, standards and guidelines adopted under ORS
151.216. [1993 c.33 §75; 2001 c.962 §46; 2003 c.449 §§11,47]
419B.208 Other law applicable to
appointment of counsel. Appointment of counsel for the
child, ward or parent is subject to ORS 135.055, 151.216 and 151.219. [1993
c.33 §76; 2001 c.962 §47; 2003 c.396 §§50,51]
419B.211 Motion to withdraw as counsel.
(1) When a parent or guardian is required to appear at a hearing related to a
petition to establish jurisdiction or a petition to establish permanent
guardianship or terminate parental rights, if the parent or guardian fails to appear
at the hearing without reasonable explanation, the attorney for the parent or
guardian may move to withdraw from representing the parent or guardian.
(2)
The attorney shall explain to the court the basis for a motion to withdraw
under this section.
(3)
The court may grant a motion to withdraw as counsel under this section. [2007
c.497 §2]
(Educational Surrogate)
419B.220 Appointment of surrogate.
(1) Upon the request of any party, the court shall appoint a surrogate for a
child who is temporarily or permanently in the custody of, or committed to, a
public or private agency through the action of the juvenile court if:
(a)
The court finds that the child may be eligible for special education programs
because of a disabling condition as provided in ORS chapter 343;
(b)
The child does not already have a surrogate appointed by a school district or
other educational agency; and
(c)
The requesting party nominates a person who is willing to serve as the
surrogate and who meets the requirements described in subsection (2) of this
section.
(2)
A surrogate appointed under this section:
(a)
May not be an employee of the state educational agency, a school district or
any other agency that is involved in the education or care of the child;
(b)
May not have a conflict of interest that would interfere with the surrogate
representing the special education interests of the child;
(c)
Shall have knowledge and skills that ensure that the surrogate can adequately
represent the child in special education decisions; and
(d)
May not be a person who is the child’s parent, guardian or former guardian if:
(A)
At any time while the child was under the care, custody or control of the
person, a court entered an order:
(i)
Taking the child into protective custody under ORS 419B.150; or
(ii)
Committing the child to the legal custody of the Department of Human Services
for care, placement and supervision under ORS 419B.337; and
(B)
The court entered a subsequent order that:
(i)
The child should be permanently removed from the person’s home, or continued in
substitute care, because it was not safe for the child to be returned to the
person’s home, and no subsequent order of the court was entered that permitted
the child to return to the person’s home before the child’s wardship was
terminated under ORS 419B.328; or
(ii)
Terminated the person’s parental rights under ORS 419B.500 and 419B.502 to
419B.524. [1993 c.33 §77; 2005 c.662 §14; 2011 c.194 §8]
419B.223 Duties and tenure of surrogate.
A person that is appointed surrogate for a ward has the duty and authority to
protect the due process rights of the ward with respect to the provision of
free appropriate public education. A surrogate appointed by the court shall
immediately apply to the attending school district for an evaluation of the
ward’s eligibility for special education and shall participate in the
development of the ward’s educational plan as provided in ORS chapter 343. The
duties and responsibilities of the surrogate shall continue until whichever of
the following occurs first:
(1)
The ward is 21 years of age;
(2)
The ward is determined to be no longer eligible for special education; or
(3)
The juvenile court terminates wardship and determines that the child’s parent
or guardian is both known and available to protect the special educational
rights of the child. [1993 c.33 §78; 2003 c.396 §52]
419B.230
[1993 c.33 §85; 1993 c.546 §39; repealed by 2001 c.622 §57]
(Guardian Ad Litem for Parent)
419B.231 Appointment; hearing; findings.
(1) In a proceeding under this chapter, including a proceeding for the
termination of parental rights, the court, on its own motion or on the written
or oral motion of a party in the proceeding, may appoint a guardian ad litem
for a parent involved in the proceeding as provided in this section.
(2)
The court shall conduct a hearing to determine whether to appoint a guardian ad
litem in a proceeding under this chapter if:
(a)
A party moves for the appointment and the affidavit or oral representations
submitted in support of the motion state facts that, if proved at a hearing
under this section, would establish that it is more probable than not that:
(A)
Due to the parent’s mental or physical disability or impairment, the parent
lacks substantial capacity either to understand the nature and consequences of
the proceeding or to give direction and assistance to the parent’s attorney on
decisions the parent must make in the proceeding; and
(B)
The appointment of a guardian ad litem is necessary to protect the parent’s
rights in the proceeding during the period of the parent’s disability or
impairment; or
(b)
The court has a reasonable belief that:
(A)
Due to the parent’s mental or physical disability or impairment, the parent
lacks substantial capacity either to understand the nature and consequences of
the proceeding or to give direction and assistance to the parent’s attorney on
decisions the parent must make in the proceeding; and
(B)
The appointment of a guardian ad litem is necessary to protect the parent’s
rights in the proceeding during the period of the parent’s disability or
impairment.
(3)(a)
A court may not appoint a guardian ad litem under this section unless the court
conducts a hearing. At the hearing, 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:
(A)
Relevant to the findings required under this section; and
(B)
Of a type commonly relied upon by reasonably prudent persons in the conduct of
their serious affairs.
(b)
For purposes of this subsection, evidence is relevant if it is “relevant
evidence” as defined in ORS 40.150.
(4)
A court may not appoint a guardian ad litem for a parent unless the court finds
by a preponderance of the evidence presented at the hearing that:
(a)
Due to the parent’s mental or physical disability or impairment, the parent
lacks substantial capacity either to understand the nature and consequences of
the proceeding or to give direction and assistance to the parent’s attorney on
decisions the parent must make in the proceeding; and
(b)
The appointment of a guardian ad litem is necessary to protect the parent’s
rights in the proceeding during the period of the parent’s disability or
impairment.
(5)
The fact that a guardian ad litem has been appointed under this section may not
be used as evidence of mental or emotional illness in any juvenile court
proceeding, any civil commitment proceeding or any other civil proceeding. [2005
c.450 §2]
419B.233 [1993
c.33 §87; repealed by 2001 c.622 §57]
419B.234 Qualifications; duties;
privilege. (1) A person appointed as a guardian ad
litem under ORS 419B.231:
(a)
Must be a licensed mental health professional or attorney;
(b)
Must be familiar with legal standards relating to competence;
(c)
Must have skills and experience in representing persons with mental and
physical disabilities or impairments; and
(d)
May not be a member of the parent’s family.
(2)
The guardian ad litem is not a party in the proceeding but is a representative
of the parent.
(3)
The guardian ad litem shall:
(a)
Consult with the parent, if the parent is able, and with the parent’s attorney
and make any other inquiries as are appropriate to assist the guardian ad litem
in making decisions in the juvenile court proceeding.
(b)
Make legal decisions that the parent would ordinarily make concerning the
juvenile court proceeding including, but not limited to, whether to:
(A)
Admit or deny the allegations of any petition;
(B)
Agree to or contest jurisdiction, wardship, temporary commitment, guardianship
or permanent commitment;
(C)
Accept or decline a conditional postponement; or
(D)
Agree to or contest specific services or placement.
(c)
Make decisions concerning the adoption of a child of the parent including
release or surrender, certificates of irrevocability and consent to adoption
under ORS 109.312 or 418.270 and agreements under ORS 109.305.
(d)
Control the litigation and provide direction to the parent’s attorney on the
decisions that would ordinarily be made by the parent in the proceeding.
(e)
Inform the court if the parent no longer needs a guardian ad litem.
(4)
In making decisions under subsection (3) of this section, the guardian ad litem
shall make the decisions consistent with what the guardian ad litem believes
the parent would decide if the parent did not lack substantial capacity to
either understand the nature and consequences of the proceeding or give
direction or assistance to the parent’s attorney on decisions the parent must
make in the proceeding.
(5)
The parent’s attorney shall follow directions provided by the guardian ad litem
on decisions that are ordinarily made by the parent in the proceeding. The
parent’s attorney shall inquire at every critical stage in the proceeding as to
whether the parent’s competence has changed and, if appropriate, shall request
removal of the guardian ad litem.
(6)(a)
A parent for whom a guardian ad litem has been appointed under ORS 419B.231 has
a privilege to refuse to disclose and to prevent any other person from
disclosing confidential communications made for the purpose of facilitating the
rendition of professional services to the parent:
(A)
Between the guardian ad litem and the parent’s attorney or a representative of
the attorney; or
(B)
Between the guardian ad litem and the parent.
(b)
The privilege created by this subsection:
(A)
May be claimed by the parent or the guardian ad litem. The guardian ad litem
may claim the privilege only on behalf of the parent.
(B)
Is subject to ORS 40.280, 40.285 and 40.290. [2005 c.450 §3]
419B.236 [1993
c.33 §88; repealed by 2001 c.622 §57]
419B.237 Duration of appointment;
compensation. (1) The appointment of a guardian ad
litem under ORS 419B.231 continues until:
(a)
The court terminates the appointment;
(b)
The juvenile court proceeding is dismissed; or
(c)
The parent’s parental rights are terminated, unless the court continues the
appointment.
(2)
A party to the proceeding or the attorney for the parent for whom a guardian ad
litem has been appointed may request removal of the guardian ad litem. The
court:
(a)
Shall remove the guardian ad litem if the court determines that the parent no
longer lacks substantial capacity either to understand the nature and
consequences of the proceeding or to give direction and assistance to the
parent’s attorney on decisions the parent must make in the proceeding; or
(b)
May remove the guardian ad litem on other grounds as the court determines
appropriate.
(3)
The Public Defense Services Commission shall compensate a guardian ad litem for
duties the guardian ad litem performs in the proceeding from funds appropriated
to the commission. [2005 c.450 §4]
419B.239 [1993
c.33 §89; 1993 c.546 §40; repealed by 2001 c.622 §57]
419B.242 [1993
c.33 §90; 1993 c.546 §41; repealed by 2001 c.622 §57]
419B.245 [1993
c.33 §91; 2001 c.622 §38; renumbered 419B.872 in 2001]
419B.260 [1993
c.546 §43 (enacted in lieu of 1993 c.33 §92); 1997 c.707 §31; 1997 c.873 §12;
1999 c.302 §1; 2001 c.622 §36; renumbered 419B.806 in 2001]
419B.265 [1993
c.33 §93; 1993 c.546 §44; 1995 c.273 §21; repealed by 2001 c.622 §57]
419B.268 [1993
c.33 §94; 1993 c.295 §3; 1993 c.546 §45; repealed by 2001 c.622 §57]
419B.271 [1993
c.33 §95; 1993 c.295 §4; 1993 c.546 §46; 1995 c.273 §22; repealed by 2001 c.622
§57]
419B.274 [1993
c.33 §96; repealed by 2001 c.622 §57]
419B.277 [1993
c.33 §97; 1993 c.546 §47; repealed by 2001 c.622 §57]
419B.280 [1993
c.33 §98; renumbered 419B.827 in 2001]
419B.282 [1993
c.33 §99; 2001 c.622 §48; renumbered 419B.842 in 2001]
419B.285 [1993
c.33 §100; 1993 c.546 §48; 2001 c.622 §41; renumbered 419B.914 in 2001]
419B.300 [1993
c.546 §50; 2001 c.622 §40; renumbered 419B.881 in 2001]
(Hearings)
419B.305 When hearing must be held;
continuation; priority. (1) Except as otherwise provided
in this section, no later than 60 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 60 days.
(2)
No later than 30 days after a petition alleging jurisdiction under ORS 419B.100
is filed all parties shall comply with ORS 419B.881.
(3)
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 60-day time limit.
(4)
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. [1997
c.873 §18; 1999 c.859 §9; 2001 c.622 §53]
419B.310 Conduct of hearings.
(1) The hearing shall be held by the court without a jury and may be continued
from time to time. During the hearing of a case filed pursuant to ORS 419B.100,
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 shall not exclude the attorney for
each party and the testimony shall be reported.
(2)
Stenographic notes or other report of the hearings shall be taken only when
required by the court.
(3)
The facts alleged in the petition showing the child to be within the
jurisdiction of the court as provided in ORS 419B.100 (1), unless admitted,
must be established by a preponderance of competent evidence. [1993 c.33 §101;
1993 c.546 §51; 2001 c.622 §54]
419B.315 [1993 c.546
§53; 2001 c.622 §55; renumbered 419B.884 in 2001]
419B.317 [1993
c.33 §102; repealed by 2001 c.622 §57]
419B.320 [1993
c.33 §103; 2001 c.104 §151; 2001 c.338 §1; 2001 c.962 §48; renumbered 419B.908
in 2001]
(Disposition)
419B.325 Disposition required; evidence.
(1) At the termination of the hearing or hearings in the proceeding, the court
shall enter an appropriate order directing the disposition to be made of the
case.
(2)
For the purpose of determining proper disposition of the ward, testimony,
reports or other material relating to the ward’s mental, physical and social
history and prognosis may be received by the court without regard to their
competency or relevancy under the rules of evidence. [1993 c.33 §104; 2003
c.396 §53]
419B.328 Ward of the court; duration of
wardship. (1) The court shall make a child found
to be within the jurisdiction of the court as provided in ORS 419B.100 a ward
of the court.
(2)
The court’s wardship continues, and the ward is subject to the court’s
jurisdiction, until one of the following occurs:
(a)
The court dismisses the petition concerning the ward;
(b)
The court transfers jurisdiction over the ward as provided in ORS 419B.127,
419B.130 and 419B.132;
(c)
The court enters an order terminating the wardship;
(d)
A judgment of adoption of the ward is entered by a court of competent
jurisdiction; or
(e)
The ward becomes 21 years of age. [1993 c.33 §105; 1995 c.422 §70; 2003 c.396 §54;
2003 c.576 §447]
419B.331 When protective supervision
authorized; conditions that may be imposed. 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
that the ward remain in 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 person maintaining a foster home
approved by the court, or in a child care center or a youth care center
authorized to accept the ward. The court may specify particular requirements to
be observed during the protective supervision consistent with recognized
juvenile court practice, including but not limited to restrictions on
visitation by the ward’s parents, restrictions on the ward’s associates,
occupation and activities, restrictions on and requirements to be observed by
the person having the ward’s legal custody, and requirements for visitation by
and consultation with a juvenile counselor or other suitable counselor. [1993
c.33 §106; 2003 c.396 §55]
419B.334 Placement out of state.
When the court determines it would be in the best interest and welfare of a
ward, the court may, if there is an interstate compact or agreement or an
informal arrangement with another state permitting the ward to reside in
another state while under protective supervision, or to be placed in an
institution or with an agency in another state, place the ward under protective
supervision in such other state. [1993 c.33 §107; 2003 c.396 §56]
419B.337 Commitment to custody of Department
of Human Services. (1) When the court determines it
would be in the best interest and for the welfare of a ward, the court may
place the ward in the legal custody of the Department of Human Services for
care, placement and supervision. When the court enters an order removing a ward
from the ward’s home or an order continuing care, the court shall make a
written finding as to whether:
(a)
Removal of the ward from the ward’s home or continuation of care is in the best
interest and for the welfare of the ward;
(b)
Reasonable efforts, considering the circumstances of the ward and parent, have
been made to prevent or eliminate the need for removal of the ward from the
home or to make it possible for the ward to safely return home. In making this
finding, the court shall consider the ward’s health and safety the paramount
concerns; and
(c)
Diligent efforts have been made to place the ward pursuant to ORS 419B.192.
(2)
The court may specify the particular type of care, supervision or services to
be provided by the Department of Human Services to wards placed in the
department’s custody and to the parents or guardians of the wards, but the
actual planning and provision of such care, supervision or services is the
responsibility of the department. The department may place the ward in a child
care center authorized to accept the ward.
(3)
The court may make an order regarding visitation by the ward’s parents or
siblings. The Department of Human Services is responsible for developing and
implementing a visitation plan consistent with the court’s order.
(4)
Uniform commitment blanks, in a form approved by the Director of Human
Services, shall be used by all courts for placing wards in the legal custody of
the Department of Human Services.
(5)
If the ward has been placed in the custody of the Department of Human Services,
the court shall make no commitment directly to any residential facility, but
shall cause the ward to be delivered into the custody of the department at the
time and place fixed by rules of the department. A ward so committed may not be
placed in a Department of Corrections institution.
(6)
Commitment of a ward to the Department of Human Services continues until
dismissed by the court or until the ward becomes 21 years of age.
(7)
A court may dismiss commitment of a ward to the Department of Human Services
if:
(a)(A)
Dismissal is appropriate because the ward has been safely reunited with a
parent or because a safe alternative to reunification has been implemented for
the ward; and
(B)
The ward is at least 14 years of age but less than 21 years of age and the
court finds that:
(i)
The department has provided case planning pursuant to ORS 419B.343 that
addresses the ward’s needs and goals for a successful transition to independent
living, including needs and goals relating to housing, physical and mental
health, education, employment, community connections and supportive
relationships;
(ii)
The department has provided appropriate services pursuant to the case plan;
(iii)
The department has involved the ward in the development of the case plan and in
the provision of appropriate services; and
(iv)
The ward has safe and stable housing and is unlikely to become homeless as a
result of dismissal of commitment of the ward to the department; or
(b)
The ward has been committed to the custody of the Oregon Youth Authority. [1993
c.33 §108; 1993 c.546 §129; 1999 c.859 §10; 2003 c.396 §57; 2005 c.679 §1; 2007
c.806 §6]
419B.340 Reasonable or active efforts
determination. (1) If the court awards custody to the
Department of Human Services, the court shall include in the disposition order
a determination 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 ward from the home. If the ward has been removed prior
to the entry of the order, the order shall also include a determination whether
the department has made reasonable or active efforts to make it possible for
the ward to safely return home. In making the determination under this
subsection, the court shall consider the ward’s health and safety the paramount
concerns.
(2)
In support of its determination whether reasonable or active efforts have been
made by the department, the court shall enter a brief description of what
preventive and reunification efforts were made and why further efforts could or
could not have prevented or shortened the separation of the family.
(3)
When the first contact with the family has occurred during an emergency in
which the ward could not remain without jeopardy at home even with reasonable
services being provided, the department shall be considered to have made
reasonable or active efforts to prevent or eliminate the need for removal.
(4)
When the court finds that preventive or reunification efforts have not been
reasonable or active, but further preventive or reunification efforts could not
permit the ward to remain without jeopardy at home, the court may authorize or
continue the removal of the ward.
(5)
If a court determines that one of the following circumstances exist, the
juvenile court may make a finding that the department is not required to make
reasonable efforts to make it possible for the ward to safely return home:
(a)
Aggravated circumstances including, but not limited to, the following:
(A)
The parent by abuse or neglect has caused the death of any child;
(B)
The parent has attempted, solicited or conspired, as described in ORS 161.405,
161.435 or 161.450 or under comparable laws of any jurisdiction, to cause the
death of any child;
(C)
The parent by abuse or neglect has caused serious physical injury to any child;
(D)
The parent has subjected any child to rape, sodomy or sexual abuse;
(E)
The parent has subjected any child to intentional starvation or torture;
(F)
The parent has abandoned the ward as described in ORS 419B.100 (1)(e); or
(G)
The parent has unlawfully caused the death of the other parent of the ward;
(b)
The parent has been convicted in any jurisdiction of one of the following
crimes:
(A)
Murder of another child of the parent, which murder would have been an offense
under 18 U.S.C. 1111(a);
(B)
Manslaughter in any degree of another child of the parent, which manslaughter
would have been an offense under 18 U.S.C. 1112(a);
(C)
Aiding, abetting, attempting, conspiring or soliciting to commit an offense
described in subparagraph (A) or (B) of this paragraph; or
(D)
Felony assault that results in serious physical injury to the ward or another
child of the parent; or
(c)
The parent’s rights to another child have been terminated involuntarily.
(6)
If, pursuant to a determination under subsection (5) of this section, the
juvenile court makes a finding that the department is not required to make reasonable
efforts to prevent or eliminate the need for removal of the ward from the home
or to make it possible for the ward to safely return home, and the department
determines that it will not make such efforts, the court shall conduct a
permanency hearing as provided in ORS 419B.470 no later than 30 days after the
judicial finding under subsection (5) of this section.
(7)
When an Indian child is involved, the department must satisfy the court that
active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that these
efforts have proven unsuccessful. Foster care placement may not be ordered in a
proceeding in the absence of a determination, supported by clear and convincing
evidence, including the testimony of expert witnesses, that the continued
custody of the Indian child by the parent or Indian custodian is likely to
result in serious emotional or physical injury to the Indian child. [1993 c.33 §109;
1993 c.546 §124; 1999 c.859 §11; 2001 c.686 §14; 2003 c.396 §58]
419B.343 Recommendations of committing
court; case planning; plan contents. (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;
(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. [1993 c.33 §110;
1995 c.770 §1; 1997 c.873 §13; 1999 c.859 §12; 2001 c.686 §15; 2003 c.396 §59;
2003 c.544 §3a; 2007 c.611 §5]
419B.346 Medical planning.
Whenever a ward who is in need of medical care or other special treatment by
reason of physical or mental condition is placed in the custody of the
Department of Human Services by the juvenile court, the department shall
prepare a plan for care or treatment within 14 days after assuming custody of
the ward. The court may indicate in general terms the type of care which it
regards as initially appropriate. A copy of the plan, including a time schedule
for its implementation, shall be sent to the juvenile court that committed the
ward to the department. The court may at any time request regular progress
reports on implementation of the plan. The department shall notify the court
when the plan is implemented, and shall report to the court concerning the
progress of the ward annually thereafter. If the plan is subsequently revised,
the department shall notify the court of the revisions and the reasons for the
revisions. [1993 c.33 §111; 2003 c.396 §60]
419B.349 Court authority to review placement.
Commitment of a child or ward to the Department of Human Services does not
terminate the court’s continuing jurisdiction to protect the rights of the
child or ward or the child or ward’s parents or guardians. Notwithstanding ORS
419B.337 (5), if upon review of a placement of a child or ward made by the
department the court determines that the placement is not in the best interest
of the child or ward, the court may direct the department to place the child or
ward in the care of the child or ward’s parents, in foster care with a foster
care provider who is a relative, in foster care with another foster care
provider, in residential care, in group care or in some other specific type of
residential placement, but unless otherwise required by law, the court may not
direct a specific placement. The actual planning and placement of the child or
ward is the responsibility of the department. Nothing in this section affects
any contractual right of a private agency to refuse or terminate a placement. [1993
c.33 §112; 1997 c.497 §1; 1997 c.764 §1; 2003 c.396 §61; 2007 c.235 §1; 2007
c.806 §13]
419B.350
[1997 c.873 §15; 1999 c.859 §13; repealed by 2001 c.686 §25]
419B.352 Hospitalization; mental health
examination. The court may direct that the child or
ward be examined or treated by a physician, psychiatrist or psychologist, or
receive other special care or treatment in a hospital or other suitable
facility. If the court determines that mental health examination and treatment
should be provided by services delivered through the Department of Human
Services, the department shall determine the appropriate placement or services
in consultation with the court and other affected agencies. If an affected
agency objects to the type of placement or services, the court shall determine
the appropriate type of placement or service. During the examination or
treatment of the child or ward, the department may, if appropriate, be
appointed guardian of the child or ward. [1993 c.33 §113; 2001 c.900 §123; 2003
c.396 §62]
(Guardianships)
419B.365 Permanent guardianship; petition;
when filed; procedure. (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, or after dismissal of a petition filed
under ORS 419B.500 if it fails to result in termination of the parent’s rights,
a party, or person granted rights of limited participation for the purpose of
filing a guardianship petition, may file, and the court may hear, a petition
for permanent guardianship. If the Department of Human Services chooses not to
participate in a proceeding initiated by an intervenor under ORS 419B.875, the
state is not foreclosed from filing a subsequent action should the intervenor’s
petition be denied.
(2)
The grounds for granting a permanent guardianship are the same as those for
termination of parental rights.
(3)
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 ward that the parent never have physical
custody of the ward but that other parental rights and duties should not be
terminated.
(4)
If an Indian child is involved, the permanent guardianship must be in
compliance with the Indian Child Welfare Act. Notwithstanding subsection (3) of
this section, the facts supporting any finding made to establish a permanent
guardianship for an Indian child, including the finding that continued custody
by the parents or Indian custodian would result in serious emotional or
physical harm to the Indian child, must be established beyond a reasonable
doubt.
(5)
Unless vacated under ORS 419B.368, a guardianship established under this
section continues as long as the ward is subject to the court’s jurisdiction as
provided in ORS 419B.328. [1997 c.873 §3; 1999 c.59 §119; 1999 c.859 §23; 2003
c.229 §6; 2003 c.396 §63a; 2007 c.333 §1]
419B.366 Guardianship; motion; procedure.
(1) A party, or a person granted rights of limited participation for the purpose
of filing a guardianship motion, may file a motion to establish a guardianship.
The motion must be in writing and state with particularity the factual and
legal grounds for the motion.
(2)
Except as otherwise provided in subsection (3) of this section, the facts
supporting any finding made or relief granted under this section must be
established by a preponderance of evidence.
(3)
If an Indian child is involved, the guardianship must be in compliance with the
Indian Child Welfare Act. The facts supporting any finding made to establish a
guardianship for an Indian child, including the finding that continued custody
by the parents or Indian custodian would result in serious emotional or
physical harm to the Indian child, must be established by clear and convincing
evidence.
(4)
In a proceeding under this section, the court may receive testimony and reports
as provided in ORS 419B.325.
(5)
If the court has approved a plan of guardianship under ORS 419B.476, the court
may grant the motion for guardianship if the court determines, after a hearing,
that:
(a)
The ward cannot safely return to a parent within a reasonable time;
(b)
Adoption is not an appropriate plan for the ward;
(c)
The proposed guardian is suitable to meet the needs of the ward and is willing
to accept the duties and authority of a guardian; and
(d)
Guardianship is in the ward’s best interests. In determining whether
guardianship is in the ward’s best interests, the court shall consider the ward’s
wishes.
(6)
Unless vacated pursuant to ORS 419B.368, a guardianship established under this
section continues as long as the ward is subject to the court’s jurisdiction as
provided in ORS 419B.328. [2003 c.229 §2; 2007 c.333 §2]
419B.367 Letters of guardianship; reports
by guardian; review of reports; legal status and liability of guardian.
(1) Upon granting a motion for guardianship under ORS 419B.366 or upon granting
a petition for guardianship under ORS 419B.365, the court shall issue letters
of guardianship to the guardian. As provided in ORS 419A.255, a guardian may
disclose letters of guardianship when necessary to fulfill the duties of a
guardian. Letters of guardianship must be in substantially the following form:
______________________________________________________________________________
State of
Oregon, )
) LETTERS OF
County of ___ )
GUARDIANSHIP
BY THESE LETTERS OF GUARDIANSHIP be
informed:
That on ______ (month) ___(day), 2___, the
______ Court, ______ County, State of Oregon, appointed ________ (name of
guardian) guardian for ________ (name of ward) and that the named guardian has
qualified and has the authority and duties of guardian for the named ward
including legal custody of the ward, except as provided below.
IN TESTIMONY WHEREOF, I have subscribed my
name and affixed the seal of the court at my office on ______ (month) ___(day),
2___.
(Seal)
______, Clerk of the Court
By______, Deputy
______________________________________________________________________________
(2) In the order appointing the guardian,
the court shall require the guardian to file with the court a verified written
report within 30 days after each anniversary of appointment and may:
(a) Specify the frequency and nature of
visitation or contact between relatives, including siblings, and the ward, if
the court determines that visitation or contact is in the ward’s best
interests;
(b) Enter an order for child support
pursuant to ORS 419B.400 that complies with ORS 25.275; and
(c) Make any other order to provide for
the ward’s continuing safety and well-being.
(3)(a) Upon timely receipt of a report
under subsection (2) of this section, the court shall review the report and
cause the report to become part of the juvenile court file and may:
(A) Direct the local citizen review board
to conduct a review;
(B) Subject to the availability of funds,
appoint a court visitor and require the visitor to file a report with the
court; or
(C) Conduct a court review.
(b) If the court does not receive a report
under subsection (2) of this section in a timely manner, the court shall:
(A) Direct the local citizen review board
to conduct a review;
(B) Subject to the availability of funds,
appoint a court visitor and require the visitor to file a report with the
court; or
(C) Conduct a court review.
(4) Except as otherwise limited by the
court, a person appointed guardian has legal custody of the ward and the duties
and authority of legal custodian and guardian under ORS 419B.373 and 419B.376.
A guardian is not liable to third persons for acts of the ward solely by reason
of being appointed guardian. [2003 c.229 §3; 2005 c.84 §1; 2007 c.333 §3]
419B.368
Review, modification or vacation of guardianship order.
(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 ward’s best interests.
(3) The court may vacate a guardianship
order, return the ward 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 ward’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 ward.
(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), (d) and (e) and make any order directing
disposition of the ward 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
ward’s best interests to modify or vacate a guardianship, the court shall
consider, but is not limited to considering:
(a) The ward’s emotional and developmental
needs;
(b) The ward’s need to maintain existing
attachments and relationships and to form attachments and relationships,
including those with the birth family;
(c) The ward’s health and safety; and
(d) The ward’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. [2003 c.229 §4; 2007 c.333 §4; 2007
c.806 §7]
419B.369
Guardianship study; rules. (1) When a ward is in the legal
custody of the Department of Human Services, the department shall conduct a
guardianship study of the proposed guardian’s home and provide a report to the
court regarding the suitability of the proposed guardian and whether
guardianship is in the ward’s best interests. The department shall adopt rules
necessary to carry out the duties imposed by this subsection.
(2) When a ward is not in the legal
custody of the department, the court may order the proposed guardian to obtain,
at the proposed guardian’s expense, a guardianship study of the proposed guardian’s
home and provide a report to the court regarding the suitability of the
proposed guardian and whether guardianship is in the ward’s best interests. [2003
c.229 §5; 2007 c.333 §5]
(Legal
Custodian of Child)
419B.370
Guardianship as incident of custody. (1) When the
court grants legal custody to the Department of Human Services, it may also
grant guardianship of the ward to the department, to remain in effect solely
while the ward remains in the legal custody of the department.
(2) When the court grants legal custody to
a private institution or agency or to a suitable person or entity, the court
may grant guardianship of the ward to the private institution or agency to
which the ward is committed or to the suitable person or entity if it appears necessary
to do so in the interests of the ward.
(3) Unless guardianship is granted as
provided in subsection (1) or (2) of this section, the court as an incident of
its wardship has the duties and authority of the guardian as provided in ORS
419B.376 and 419B.379. [1993 c.33 §114; 1993 c.367 §3; 2003 c.229 §10; 2003
c.396 §64]
419B.373
Duties and authority of legal custodian. A person,
agency or institution having legal custody of a ward has the following duties
and authority:
(1) To have physical custody and control
of the ward.
(2) To supply the ward with food,
clothing, shelter and incidental necessaries.
(3) To provide the ward with care,
education and discipline.
(4) To authorize ordinary medical, dental,
psychiatric, psychological, hygienic or other remedial care and treatment for
the ward, and, in an emergency where the 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 ward is otherwise entitled and to
use the benefits or assistance to pay for the care of the ward. [1993 c.33 §115;
1993 c.367 §1; 2003 c.396 §65]
(Guardian)
419B.376
Duties and authority of guardian. A person,
agency or institution having guardianship of a ward by reason of appointment by
the court has the duties and authority of a guardian of the ward, including but
not limited to the following:
(1) To authorize surgery for the ward, but
this authority does not prevent the person having legal custody of the ward
from acting under ORS 419B.373 (4).
(2) To authorize the ward to enlist in the
Armed Forces of the United States.
(3) To consent to the ward’s marriage.
(4) When the ward has been committed under
ORS 419B.527, to consent to the adoption of the ward.
(5) To make other decisions concerning the
ward of substantial legal significance.
(6) To make such reports and to supply
such information to the court as the court may from time to time require. [1993
c.33 §116; 2003 c.396 §66]
419B.379
Guardian is not conservator. A person
appointed guardian of the ward by the court is guardian only and not a
conservator of the estate of the ward, unless that person is appointed
conservator of the ward’s estate in a protective proceeding as provided in ORS
chapter 125. [1993 c.33 §117; 1995 c.664 §94; 2003 c.396 §67]
(Authority
Over Parents)
419B.385
Parent or guardian as party. A parent or
legal guardian of a ward, if such parent or guardian was served with summons
under ORS 419B.812 to 419B.839 prior to the adjudication, is subject to the
jurisdiction of the court for purposes of this section. The court may order the
parent or guardian to assist the court in any reasonable manner in providing
appropriate education or counseling for the ward. [1993 c.33 §118; 2001 c.622 §49;
2003 c.396 §68]
419B.387
Parent participation in treatment or training.
If the court finds in an evidentiary hearing that treatment or training is
needed by a parent to correct the circumstances that resulted in wardship or to
prepare the parent to resume the care of the ward, the court may order the
parent to participate in the treatment or training if the participation is in
the ward’s best interests. [1993 c.546 §55 (enacted in lieu of 1993 c.33 §§119
and 120); 2003 c.396 §69]
419B.389
Inability of parent to comply with order of court.
A parent who believes or claims that financial, health or other problems will
prevent or delay the parent’s compliance with an order of the court must inform
the court of the relevant circumstances as soon as reasonably possible and, if
appropriate, seek relief from the order under ORS 419B.923. [2001 c.360 §3;
2003 c.315 §1]
(Paternity)
419B.395
Judgment of paternity or nonpaternity. (1) If in any
proceeding under ORS 419B.100 or 419B.500 the juvenile court determines that
the child or ward has no legal father or that paternity is disputed as allowed
in ORS 109.070, the court may enter a judgment of paternity or a judgment of
nonpaternity in compliance with the provisions of ORS 109.070, 109.124 to
109.230, 109.250 to 109.262 and 109.326.
(2) Before entering a judgment under
subsection (1) of this section, the court must find that adequate notice and an
opportunity to be heard was provided to:
(a) The parties to the proceeding;
(b) The man alleged or claiming to be the
child or ward’s father; and
(c) The Administrator of the Division of
Child Support of the Department of Justice or the branch office providing
support services to the county in which the court is located.
(3) When appropriate, the court shall
inform a man before the court claiming to be the father of a child or ward that
paternity establishment services may be available through the administrator if
the child or ward:
(a) Is a child born out of wedlock;
(b) Has not been placed for adoption; and
(c) Has no legal father.
(4) As used in this section:
(a) “Administrator” has the meaning given
that term in ORS 25.010.
(b) “Child born out of wedlock” has the
meaning given that term in ORS 109.124.
(c) “Legal father” has the meaning given
that term in ORS 419A.004 (16). [2005 c.160 §8]
(Support)
419B.400
Authority to order support; collection. (1) The court
may, after a hearing on the matter, require the parents or other person legally
obligated to support a child alleged to be within the jurisdiction of the court
under ORS 419B.100 or a ward to pay toward the child or ward’s support such
amounts at such intervals as the court may direct, even though the child or
ward is over 18 years of age as long as the child or ward is a child attending
school, as defined in ORS 107.108.
(2) At least 21 days before the hearing,
the court shall notify the Administrator of the Division of Child Support of
the Department of Justice, or the branch office providing support services to
the county where the hearing will be held, of the hearing. Before the hearing
the administrator shall inform the court, to the extent known:
(a) Whether there is pending in this state
or any other jurisdiction any type of support proceeding involving the child or
ward, including a proceeding brought under ORS 25.287, 107.085, 107.135,
107.431, 108.110, 109.100, 109.103, 109.165, 125.025, 416.400 to 416.465 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
the child or ward.
(3) The Judicial Department and the
Department of Justice may enter into an agreement regarding how the courts give
the notice required under subsection (2) of this section to the Department of
Justice and how the Department of Justice gives the information described in
subsection (2)(a) and (b) to the courts.
(4) The court, in determining the amount
to be paid, shall use the scale and formula provided for in ORS 25.275 and
25.280. Unless otherwise ordered, the amounts so required to be paid shall be
paid to the Department of Justice or the county clerk, whichever is
appropriate, for transmission to the person, institution or agency having legal
custody of the child or ward. [1993 c.33 §121; 1997 c.704 §§46,60; 2003 c.116 §16;
2003 c.396 §70a]
419B.402
Support order is judgment. Any order for support entered
pursuant to ORS 419B.400 shall be entered as a judgment and the court does not
have the power to set aside, alter or modify the judgment, or any portion
thereof, which provides for any payment of money, either for minor children or
the support of a party, which has accrued prior to the filing of a motion to
set aside, alter or modify the judgment. [1993 c.33 §122; 2003 c.576 §252]
419B.404
Support for child or ward in state financed or supported institution.
Any order for support entered pursuant to ORS 419B.400 for a child or ward in
the care and custody of the Department of Human Services may be made contingent
upon the child or ward residing in a state financed or supported residence,
shelter or other facility or institution. A certificate signed by the Director
of Human Services, the Administrator of the Division of Child Support or the
administrator’s authorized representative shall be sufficient to establish such
periods of residence and to satisfy the order for periods of nonresidence. [1993
c.33 §123; 2003 c.396 §71]
419B.406
Assignment of support order to state. When a child
or ward is in the legal custody of the Department of Human Services and the
child or ward is the beneficiary of an order of support in a judgment of
dissolution or other order and the department is required to provide financial
assistance for the care and support of the child or ward, the state is assignee
of and subrogated to the child or ward’s proportionate share of the support
obligation including sums that have accrued whether or not the support order or
judgment provides for separate monthly amounts for the support of each of two
or more children or wards or a single monthly gross payment for the benefit of
two or more children or wards, up to the amount of assistance provided by the
department. The assignment shall be as provided in ORS 412.024. [1993 c.33 §124;
1999 c.80 §76; 2003 c.73 §67; 2003 c.396 §72; 2003 c.572 §18; 2003 c.576 §448]
419B.408
Enforcement of support order. (1) An order
of support entered pursuant to ORS 419B.400 may be enforced by execution or in
the manner provided by law for the enforcement of a judgment granting an
equitable remedy or by an order to withhold pursuant to ORS 25.372 to 25.427.
(2) No property of the child or ward’s
parents, or either of them, or other person legally obligated to support the
child or ward is exempt from levy and sale or other process to enforce
collection of the amounts ordered by the court to be paid toward the support of
the child or ward. [1993 c.33 §125; 1993 c.798 §31; 2003 c.396 §73]
419B.420
[1993 c.33 §126; repealed by 2001 c.622 §57]
419B.423
[1993 c.33 §127; 1993 c.546 §125; repealed by 2001 c.622 §57]
419B.426
[1993 c.33 §128; repealed by 2001 c.622 §57]
(Reports
by Guardians and Custodians)
419B.440
Circumstances requiring reports. Any public or
private agency having guardianship or legal custody of a child or ward pursuant
to court order shall file reports on the child or ward with the juvenile court
that entered the original order concerning the child or ward or, when no such
order exists, with the juvenile court of the county of the child or ward’s
residence in the following circumstances:
(1) When the child or ward has been placed
with the agency as a result of a court order and prior to, or as soon as
practicable after the agency places the child or ward in any placement
including, but not limited to, the child or ward’s home, shelter care,
substitute care or a child care center, unless the court has previously
received a report or treatment plan indicating the actual physical placement of
the child or ward.
(2)(a) When the child or ward has been
placed with the agency as the result of a court order and remains under agency
care for six consecutive months from date of initial placement;
(b) When the child or ward has been surrendered
for adoption or the parents’ rights have been terminated and the agency has not
physically placed the child or ward for adoption or initiated adoption
proceedings within six months of receiving the child or ward; and
(c) When the ward is in the legal custody
of the Department of Human Services as provided in ORS 419B.337, but the ward
has been placed for a period of six consecutive months in the physical custody
of a parent or a person who was appointed the ward’s legal guardian prior to
placement of the ward in the legal custody of the department. [1993 c.33 §129;
2003 c.396 §74; 2007 c.610 §1]
419B.443
Time and content of reports. (1) An agency
described in ORS 419B.440 shall file the reports required by ORS 419B.440 (2)
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;
(c) 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;
(d) For a child or ward in substitute
care, a list of all schools the child or ward has attended since the child or
ward has been in the guardianship or legal custody of the agency, the length of
time the child or ward has spent in each school and, for a child or ward 14
years of age or older, the number of high school credits the child or ward has
earned;
(e) A list of dates of face-to-face
contacts the assigned case worker has had with the child or ward since the
child or ward has been in the guardianship or legal custody of the agency and,
for a child or ward in substitute care, the place of each contact;
(f) For a child or ward in substitute
care, a list of the visits the child or ward has had with the child’s or ward’s
parents or siblings since the child or ward has been in the guardianship or
legal custody of the agency and the place and date of each visit;
(g) 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;
(h) A proposed treatment plan or proposed
continuation or modification of an existing treatment plan, including a
proposed visitation plan or proposed continuation or modification of an
existing visitation plan 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;
(i) If continued substitute care is
recommended, a proposed timetable for the child’s or ward’s return home or
other permanent placement or a justification of why extended substitute care is
necessary; and
(j) 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) In addition to the information
required in a report made under subsection (1) of this section, for a ward who
is in the legal custody of the Department of Human Services pursuant to ORS
419B.337 but who will be or recently has been placed in the physical custody of
a parent or a person who was appointed the ward’s legal guardian prior to
placement of the ward in the legal custody of the department, a report required
under ORS 419B.440 (1) shall include:
(a) A recommended timetable for dismissal
of the department’s legal custody of the ward and termination of the wardship;
and
(b) A description of the services that the
department will provide to the ward and the ward’s physical custodian to eliminate
the need for the department to continue legal custody.
(3) In addition to the information
required in a report made under subsection (1) of this section, if the report
is made by the department under ORS 419B.440 (2)(c), the report shall include:
(a) A recommended timetable for dismissal
of the department’s legal custody of the ward and termination of the wardship;
and
(b) A description of the services that the
department has provided to the ward and the ward’s physical custodian to
eliminate the need for the department to continue legal custody.
(4) Notwithstanding the requirements of
subsection (1) of this section, reports need not contain information contained
in prior reports. [1993 c.33 §130; 2001 c.686 §22; 2003 c.396 §75; 2007 c.610 §2;
2007 c.611 §6; 2007 c.806 §8]
419B.446
Filing report. (1) Notwithstanding the requirements
under ORS 419B.440 that reports be filed with the court, any report after the
initial report that is required by ORS 419B.443 on a child or ward whose case
is being regularly reviewed by a local citizen review board shall be filed with
that local citizen review board rather than the court.
(2) Notwithstanding subsection (1) of this
section, all reports made under ORS 419B.440 (2)(c) on wards in the legal
custody of the Department of Human Services shall be filed with the court. [1993
c.33 §131; 2003 c.396 §76; 2007 c.610 §3]
419B.449
Review hearing by court; findings. (1) Upon
receiving any report required by ORS 419B.440, 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 (2)(b)
when the parents’ rights have been terminated;
(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;
(c) Not later than six months after
receipt of a report made under ORS 419B.440 (1) on a ward who is in the legal
custody of the Department of Human Services pursuant to ORS 419B.337 but who is
placed in the physical custody of a parent or a person who was appointed the
ward’s legal guardian prior to placement of the ward in the legal custody of
the department; or
(d) Within 30 days after receipt of a
report made under ORS 419B.440 (2)(c).
(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 court shall enter
findings of fact.
(3) If the child or ward is in substitute
care and the decision of the court is to continue the child or ward in
substitute care, the findings of the court shall specifically state:
(a)(A) Why continued care is necessary as
opposed to returning the child or ward home or taking prompt action to secure
another permanent placement; and
(B) The expected timetable for return or
other permanent placement.
(b) Whether the agency having guardianship
or legal custody of the child or ward has made diligent efforts to place the
child or ward pursuant to ORS 419B.192.
(c) The number of placements made, schools
attended, face-to-face contacts with the assigned case worker and visits had
with parents or siblings since the child or ward has been in the guardianship
or legal custody of the agency and whether the frequency of each of these is in
the best interests of the child or ward.
(d) For a child or ward 14 years of age or
older, whether the child or ward is progressing adequately toward graduation
from high school and, if not, the efforts that have been made by the agency
having custody or guardianship to assist the child or ward to graduate.
(4) If the ward is in the legal custody of
the department but has been placed in the physical custody of the parent or a
person who was appointed the ward’s legal guardian prior to placement of the
ward in the legal custody of the department, and the decision is to continue
the ward in the legal custody of the department and the physical custody of the
parent or guardian, the findings of the court shall specifically state:
(a) Why it is necessary and in the best
interests of the ward to continue the ward in the legal custody of the
department; and
(b) The expected timetable for dismissal
of the department’s legal custody of the ward and termination of the wardship.
(5) 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.
(6) 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.
(7) Any final decision of the court made
pursuant to the hearing provided in subsection (1) of this section is
appealable under ORS 419A.200. [1993 c.33 §132; 1999 c.568 §1; 2001 c.480 §8;
2001 c.910 §4; 2003 c.396 §77; 2007 c.610 §4; 2007 c.611 §7; 2007 c.806 §9]
419B.452
Distribution of report by court. Except when a
child or ward has been surrendered for adoption or the parents’ rights have
been terminated, the court shall send a copy of the report required by ORS
419B.440 to the parents and shall notify the parents either that a hearing will
be held or that the parents may request a hearing at which time they may ask
for modifications in the care, treatment and supervision of the child or ward.
If the court finds that informing the parents of the identity and location of
the foster parents of the child or ward is not in the best interest of the
child or ward, the court may order such information deleted from the report
before sending the report to the parents. If an Indian child is involved, the
court shall send a copy of the report to the Indian child’s tribe as required
by the notice requirements of the Indian Child Welfare Act. [1993 c.33 §133;
1993 c.546 §126; 2003 c.396 §78]
(Child
Surrendered for Adoption)
419B.460
Agency’s responsibility. Where a child has been
surrendered for adoption and the agency has not physically placed the child for
adoption or initiated adoption proceedings within six months of receiving the
child, the agency shall file a petition alleging that the child comes within
the jurisdiction of the court. [1993 c.33 §134]
(Permanency
Hearing)
419B.470
Permanency hearing; schedule. (1) The court
shall conduct a permanency hearing within 30 days after a judicial finding is
made under ORS 419B.340 (5) if, based upon that judicial finding, the
Department of Human Services determines that it will not make reasonable
efforts to reunify the family.
(2) In all other cases when a child or
ward is in substitute care, the court shall conduct a permanency hearing no
later than 12 months after the ward was found within the jurisdiction of the
court under ORS 419B.100 or 14 months after the child or ward was placed in
substitute care, whichever is the earlier.
(3) If a ward is removed from court
sanctioned permanent foster care, the department shall request and the court
shall conduct a permanency hearing within three months after the date of the
change in placement.
(4) If a ward has been surrendered for
adoption or the parents’ rights have been terminated and the department has not
physically placed the ward for adoption or initiated adoption proceedings
within six months after the surrender or entry of an order terminating parental
rights, the court shall conduct a permanency hearing within 30 days after
receipt of the report required by ORS 419B.440 (2)(b).
(5) Unless good cause otherwise is shown,
the court shall also conduct a permanency hearing at any time upon the request
of the department, an agency directly responsible for care or placement of the
child or ward, parents whose parental rights have not been terminated, an
attorney for the child or ward, a court appointed special advocate, a citizen
review board, a tribal court or upon its own motion. The court shall schedule
the hearing as soon as possible after receiving a request.
(6) After the initial permanency hearing
conducted under subsection (1) or (2) of this section or any permanency hearing
conducted under subsections (3) to (5) of this section, the court shall conduct
subsequent permanency hearings not less frequently than once every 12 months
for as long as the child or ward remains in substitute care.
(7) After the permanency hearing conducted
under subsection (4) of this section, the court shall conduct subsequent
permanency hearings at least every six months for as long as the ward is not
physically placed for adoption or adoption proceedings have not been initiated.
(8) If a child returns to substitute care
after a court’s previously established jurisdiction over the child has been
dismissed or terminated, a permanency hearing shall be conducted no later than
12 months after the child is found within the jurisdiction of the court on a
newly filed petition or 14 months after the child’s most recent placement in
substitute care, whichever is the earlier. [1993 c.33 §135; 1993 c.546 §127;
1999 c.859 §14; 2001 c.686 §7; 2003 c.396 §79; 2007 c.806 §10]
419B.473
Notice; appearance. (1) The court may order that the
child or ward or any other person be present during the hearing.
(2) The court shall notify the parties
listed in ORS 419B.470 and any other interested parties of the hearing. The
notice shall state the time and place of the hearing. Upon request of the
court, the Department of Human Services or other legal custodian of the child
or ward shall provide the court with information concerning the whereabouts and
identity of such parties. [1993 c.33 §136; 2003 c.396 §80]
419B.476
Conduct of hearing; court determinations; orders.
(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.
(d) Make the findings of fact under ORS
419B.449 (2).
(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
(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;
(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;
(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. [1993 c.33 §137; 1993
c.546 §128; 1999 c.568 §2; 1999 c.859 §15; 2001 c.480 §9; 2001 c.622 §50; 2001
c.686 §16; 2001 c.910 §5; 2003 c.396 §81; 2003 c.544 §1a; 2007 c.611 §8; 2007
c.806 §11]
(Termination
of Parental Rights)
419B.498
Termination of parental rights; petition by Department of Human Services; when
required. (1) Except as provided in subsection
(2) of this section, the Department of Human Services shall simultaneously file
a petition to terminate the parental rights of a child or ward’s parents and
identify, recruit, process and approve a qualified family for adoption if the
child or ward is in the custody of the department and:
(a) The child or ward has been in
substitute care under the responsibility of the department for 15 months of the
most recent 22 months;
(b) A parent has been convicted of murder
of another child of the parent, voluntary manslaughter of another child of the
parent, aiding, abetting, attempting, conspiring or soliciting to commit murder
or voluntary manslaughter of the child or ward or of another child of the
parent or felony assault that has resulted in serious physical injury to the
child or ward or to another child of the parent; or
(c) A court of competent jurisdiction has
determined that the child or ward is an abandoned child.
(2) The department shall file a petition
to terminate the parental rights of a parent in the circumstances described in
subsection (1) of this section unless:
(a) The child or ward is being cared for
by a relative and that placement is intended to be permanent;
(b) There is a compelling reason, which is
documented in the case plan, for determining that filing such a petition would
not be in the best interests of the child or ward. Such compelling reasons
include, but are not limited to:
(A) The parent is successfully
participating in services that will make it possible for the child or ward to
safely return home within a reasonable time as provided in ORS 419B.476 (5)(c);
(B) Another permanent plan is better
suited to meet the health and safety needs of the child or ward, including the
need to preserve the child’s or ward’s sibling attachments and relationships;
or
(C) The court or local citizen review
board in a prior hearing or review determined that while the case plan was to
reunify the family the department did not make 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; or
(c) The department has not provided to the
family of the child or ward, consistent with the time period in the case plan,
such services as the department deems necessary for the child or ward to safely
return home, if reasonable efforts to make it possible for the child or ward to
safely return home are required to be made with respect to the child or ward.
(3) No petition to terminate the parental
rights of a child or ward’s parents pursuant to subsection (1) of this section
or pursuant to ORS 419B.500, 419B.502, 419B.504, 419B.506 or 419B.508 may be
filed until the court has determined that the permanency plan for the child or
ward should be adoption after a permanency hearing pursuant to ORS 419B.476. [1999
c.859 §21; 2001 c.686 §17; 2003 c.396 §82; 2003 c.544 §2; 2007 c.234 §1; 2007
c.806 §12]
419B.500
Termination of parental rights generally. The
parental rights of the parents of a ward 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 ward for the purpose of freeing the ward for adoption if the court finds
it is in the best interest of the ward. 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. [1993 c.33 §138; 1993 c.546 §56; 1997 c.873 §6;
2003 c.396 §83; 2011 c.438 §5]
419B.502
Termination upon finding of extreme conduct. 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 any child. In such case, no
efforts need to be made by available social agencies to help the parent adjust
the conduct in order to make it possible for the child or ward to safely return
home within a reasonable amount of time. 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 by the parent of any
child resulting in death or serious physical injury.
(4) Conduct by the parent to aid or abet
another person who, by abuse or neglect, caused the death of any child.
(5) Conduct by the parent to attempt,
solicit or conspire, as described in ORS 161.405, 161.435 or 161.450 or under
comparable laws of any jurisdiction, to cause the death of any child.
(6) Previous involuntary terminations of
the parent’s rights to another child if the conditions giving rise to the
previous action have not been ameliorated.
(7) Conduct by the parent that knowingly
exposes any child of the parent to the storage or production of
methamphetamines from precursors. In determining whether extreme conduct exists
under this subsection, the court shall consider the extent of the child or ward’s
exposure and the potential harm to the physical health of the child or ward. [1993
c.33 §139; 1995 c.767 §1; 1997 c.873 §5; 1999 c.859 §16; 2001 c.575 §1; 2001
c.686 §23; 2003 c.396 §84]
419B.504
Termination upon finding of unfitness. 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 or ward and integration of the
child or ward into the home of the parent or parents is improbable 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 retardation of the parent of such nature and duration as to render the
parent incapable of providing proper care for the child or ward 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 or ward.
(5) Lack of effort of the parent to adjust
the circumstances of the parent, conduct, or conditions to make it possible for
the child or ward to safely return home within a reasonable time 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 or ward. [1993 c.33 §140;
1997 c.873 §7; 2001 c.686 §24; 2003 c.396 §85; 2007 c.70 §199]
419B.506
Termination upon finding of neglect. 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 or ward 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 or ward that was designed and implemented in a
plan to reunite the child or ward with the parent.
(3) Failure to contact or communicate with
the child or ward or with the custodian of the child or ward. In making this
determination, the court may disregard incidental visitations, communications
or contributions. [1993 c.33 §141; 1997 c.873 §8; 2003 c.396 §86]
419B.508
Termination upon finding of abandonment. 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 abandoned the child or ward or the
child or ward was left under circumstances such that the identity of the parent
or parents of the child or ward was unknown and could not be ascertained,
despite diligent searching, and the parent or parents have not come forward to
claim the child or ward within three months following the finding of the child
or ward. [1993 c.33 §142; 2003 c.396 §87]
419B.510
Termination upon finding child conceived as result of rape.
(1) The rights of the parent may be terminated as provided in ORS 419B.500 if
the court finds that the child or ward was conceived as the result of an act
that led to the parent’s conviction for rape under ORS 163.365 or 163.375 or
other comparable law of another jurisdiction.
(2) Termination of parental rights under
subsection (1) of this section does not relieve the parent of any obligation to
pay child support.
(3) Termination of parental rights under
subsection (1) of this section is an independent basis for termination of
parental rights and the court need not make any of the considerations or
findings described in ORS 419B.502, 419B.504, 419B.506 or 419B.508. [2011 c.438
§2]
Note:
Section 6, chapter 438, Oregon Laws 2011, provides:
Sec.
6. Section 2 of this 2011 Act [419B.510]
and the amendments to ORS 107.105, 107.137 and 419B.500 by sections 3 to 5 of
this 2011 Act apply to child custody, parenting time and parental termination
proceedings filed on or after the effective date of this 2011 Act [January 1,
2012]. [2011 c.438 §6]
419B.515
[1993 c.33 §143; 1993 c.546 §57; repealed by 2001 c.622 §57]
419B.517
Mediation to be encouraged. The use of mediation shall be
encouraged in cases involving:
(1) A parent or guardian in a juvenile
dependency proceeding in which the child is taken into protective custody or
placed in substitute care; or
(2) The termination of parental rights. [1995
c.767 §4; 2005 c.656 §1]
Note:
419B.517 was added to and made a part of ORS chapter 419B by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
419B.518
Appointment of counsel for parents. (1) If the
parents are determined to be financially eligible, and request the assistance
of appointed counsel, the court shall appoint an attorney to represent them at
state expense. Appointment of counsel under this section is subject to ORS
135.055, 151.216 and 151.219.
(2) The court may not substitute one
appointed counsel for another except pursuant to the policies, procedures,
standards and guidelines adopted under ORS 151.216. [1993 c.33 §144; 2001 c.962
§55; 2005 c.449 §4]
419B.521
Conduct of termination hearing. (1) The court
shall hold a hearing on the question of terminating the rights of the parent or
parents. The court may not hold the hearing 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) 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 or ward and the potential adverse effect delay may have on the child
or ward. The court shall make written findings when granting a continuance.
(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.
(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. [1993 c.33 §145;
1993 c.546 §58; 1995 c.767 §2; 1997 c.873 §9; 2003 c.396 §88]
419B.524
Effect of termination order. Unless there
is an appeal from the order terminating the rights of the parent or parents,
the order permanently terminates all rights of the parent or parents whose
rights are terminated and the parent or parents have no standing to appear as
such in any legal proceeding concerning the ward. [1993 c.33 §146; 2003 c.396 §89]
419B.527
Disposition of ward after termination. (1) After the
entry of an order terminating the rights of the parent or parents of the ward,
the court may:
(a) Place the ward in the legal custody
and guardianship of a public or private institution or agency authorized to
consent in loco parentis to the adoption of children. An order pursuant to this
paragraph is a “permanent commitment” for the purposes of ORS 109.305, 109.309,
109.312 to 109.330 and 109.350 to 109.390; or
(b) Make any order directing disposition
of the ward that it is empowered to make under this chapter.
(2) If the rights of only one parent have
been terminated, the authority to consent to the adoption of the ward as
provided in subsection (1)(a) of this section is effective only with respect to
the parent whose rights have been terminated. [1993 c.33 §147; 2003 c.396 §90]
419B.529
Adoption after permanent commitment or surrender; procedure; certain fees
prohibited. (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 ward to the Department
of Human Services under ORS 419B.527 or the parent has signed and the
department has accepted a release and surrender to the department and a
certificate of irrevocability and waiver as provided in ORS 418.270 regarding a
child;
(b) The department has completed a home
study as defined in ORS 109.304 that finds the prospective parent is suitable
to adopt the child or ward and the department consents to the adoption of the
child or ward by the prospective parent;
(c) A home study and a placement report
requesting the juvenile court to enter a judgment 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 21.135, the clerk
of the juvenile court may not charge or collect first appearance 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 judgment 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 judgment of adoption.
(4) Records of adoptions filed and
established under this section shall be kept in accordance with, and are
subject to, ORS 7.211. [1997 c.873 §24; 1999 c.859 §24; 2003 c.396 §91; 2003
c.576 §449; 2011 c.595 §18]
419B.530
Representation by Attorney General. (1) Whenever
a juvenile court has before it an action to terminate parental rights, the
juvenile court or the Department of Human Services may request the services of
the Attorney General.
(2) Whenever an action to terminate
parental rights is before a juvenile court pursuant to ORS 419B.500, 419B.502,
419B.504, 419B.506 and 419B.508, the Attorney General shall have the same
authority to assist the court as is granted to the district attorney under ORS
8.685. [1993 c.33 §148]
(Emancipation
of Minor)
419B.550
Definitions for ORS 419B.550 to 419B.558. As
used in ORS 419B.550 to 419B.558:
(1) “Domicile” of a minor means the legal
residence or domicile of the custodial parent or guardian.
(2) “Emancipation” means conferral of
certain rights of majority upon a minor, as enumerated in ORS 419B.552.
(3) “Minor” means a person under the age
of 18 years.
(4) “Parent” means legal guardian or
custodian, natural parent or adoptive parent if the minor has been legally
adopted.
(5) Notwithstanding subsection (1) of this
section, if a minor is subject to the jurisdiction of the juvenile court
pursuant to ORS 419B.100 or 419C.005, the domicile of that minor shall be that
of the court which has jurisdiction. [1993 c.546 §133]
419B.552
Application for emancipation judgment; effect of judgment.
(1) A juvenile court, upon the written application of a minor who is domiciled
within the jurisdiction of such court, is authorized to enter a judgment of
emancipation in the manner provided in ORS 419B.558. A judgment of emancipation
shall serve only to:
(a) Recognize the minor as an adult for
the purposes of contracting and conveying, establishing a residence, suing and
being sued, and recognize the minor as an adult for purposes of the criminal
laws of this state.
(b) Terminate as to the parent and child
relationship the provisions of ORS 109.010 until the child reaches the age of
majority.
(c) Terminate as to the parent and child
relationship the provisions of ORS 108.045, 109.100, 419B.373, 419B.400,
419B.402, 419B.404, 419B.406, 419B.408, 419C.550, 419C.590, 419C.592, 419C.595,
419C.597 and 419C.600.
(2) A judgment of emancipation shall not
affect any age qualification for purchasing alcoholic liquor, the requirements
for obtaining a marriage license, nor the minor’s status under ORS 109.510. [1993
c.546 §134; 2003 c.576 §450]
419B.555
Hearing; notice to parent; duty to advise minor of liabilities of emancipated
person; filing fee. (1) The juvenile court shall
conduct a preliminary hearing on the minor’s application for emancipation
within 10 days of the date on which it is filed or as soon as possible
thereafter. At the time of the preliminary hearing, the court may issue a
temporary custody order, stay any pending proceedings or enter any other
temporary order appropriate to the circumstances. No action of the court
pursuant to this subsection may be extended beyond the date set for a final
hearing.
(2) The final hearing shall be held no
later than 60 days or as soon as possible after the date on which the
application is filed.
(3) Notice to the parent or parents of the
applicant shall be made pursuant to ORS 419B.812 to 419B.839.
(4) At the preliminary hearing, the court
shall advise the minor of the civil and criminal rights and civil and criminal
liabilities of an emancipated minor. This advice shall be recited in the
judgment of emancipation.
(5) The hearing mentioned in subsection
(2) of this section may be waived by the minor and parent or parents.
(6) The filing fee established under ORS
21.135 shall be charged and collected by the court for each application for
emancipation. [1993 c.546 §135; 1997 c.801 §33; 2001 c.622 §51; 2003 c.576 §451;
2003 c.737 §§68,69; 2005 c.702 §§81,82,83; 2011 c.595 §64]
419B.558
Entry of judgment of emancipation. (1) The
juvenile court in its discretion may enter a judgment of emancipation where the
minor is at least 16 years of age and the court finds that the best interests
of the minor will be served by emancipation. In making its determination, the
court shall take into consideration the following factors:
(a) Whether the parent of the minor
consents to the proposed emancipation;
(b) Whether the minor has been living away
from the family home and is substantially able to be self-maintained and
self-supported without parental guidance and supervision; and
(c) Whether the minor can demonstrate to
the satisfaction of the court that the minor is sufficiently mature and
knowledgeable to manage the minor’s affairs without parental assistance.
(2) Upon entry of a judgment of
emancipation by the court, the applicant shall be given a copy of the judgment.
The judgment shall instruct that the applicant obtain an Oregon driver’s
license or an Oregon identification card through the Department of
Transportation and that the Department of Transportation make a notation of the
minor’s emancipated status on the license or identification card.
(3) An emancipated minor shall be subject
to the jurisdiction of the adult courts for all criminal offenses. [1993 c.546 §136;
2003 c.576 §452]
JUVENILE
COURT DEPENDENCY PROCEDURE
419B.800
Applicability of ORS 419B.800 to 419B.929. (1)
ORS 419B.800 to 419B.929 govern procedure and practice in all juvenile court
proceedings under this chapter. The Oregon Rules of Civil Procedure do not
apply in these proceedings.
(2) ORS 419B.800 to 419B.929 apply to all
proceedings under this chapter pending on or filed on or after January 1, 2002,
except when, in the opinion of the court, application in a case pending on
January 1, 2002, would not be feasible or would work an injustice.
(3) ORS 419B.800 to 419B.929 do not
preclude a court in which they apply from regulating pleading, practice and
procedure in any manner not inconsistent with ORS 419B.800 to 419B.929. [2001
c.622 §2]
419B.803
Jurisdiction. (1) A juvenile court having subject
matter jurisdiction has jurisdiction over:
(a) A party, who has been served in the
matter as provided in ORS 419B.812 to 419B.839 to the extent that prosecution
of the action is not inconsistent with the Constitution of this state and the
Constitution of the United States;
(b) A child under 12 years of age who is
the subject of a petition filed pursuant to ORS 419B.100; and
(c) Any other party specified in ORS
419B.875 (1).
(2) Juvenile court jurisdiction is subject
to ORS 109.701 to 109.834. [2001 c.622 §3]
419B.806
Consolidation; when required; procedures. (1) As
used in this section, “consolidated” means that actions are heard before one
judge of the circuit court to determine issues regarding a child or ward.
(2) In any action filed in the juvenile
court in which the legal or physical custody of a child or ward is at issue and
there is also a child custody, parenting time, visitation, restraining order,
filiation or Family Abuse Prevention Act action involving the child or ward in
a domestic relations, filiation or guardianship proceeding, the matters shall
be consolidated. Actions must be consolidated under this subsection regardless
of whether the actions to be consolidated were filed or initiated before or
after the filing of the petition under ORS 419B.100.
(3) Consolidation does not merge the
procedural or substantive law of the individual actions. Parties to the
individual consolidated actions do not have standing, solely by virtue of the
consolidation, in every action subject to the order of consolidation. Parties
must comply with provisions for intervention or participation in a particular
action under the provisions of law applicable to that action.
(4) Upon entry of an order of
consolidation, all pending issues pertaining to the actions subject to the
order shall be heard together in juvenile court. The court shall hear the
juvenile matters first unless the court finds that it is in the best interest
of the child or ward to proceed otherwise.
(5) A judge shall make and modify orders
and findings in actions subject to the order of consolidation upon the filing
of proper motions and notice as provided by law applicable to the actions. Any
findings, orders or modifications must be consistent with the juvenile court
orders, and persons who were parties to the juvenile court action may not
relitigate issues in consolidated actions.
(6) The judge shall set out separately
from orders entered under this chapter or ORS chapter 419C any orders or
judgments made in other actions subject to the consolidation order. The trial
court administrator shall file the orders and judgments in the appropriate
actions subject to the consolidation order. An order or judgment in an
individual juvenile court action is final if it finally disposes of the rights
and duties of the parties to that action, without reference to whether the order
or judgment disposes of the rights and duties of the parties to another action
with which the action has been consolidated.
(7)(a) When the actions described in
subsection (2) of this section exist in two or more circuit courts, the judges
assigned to the actions shall confer to determine the appropriate court in
which to consolidate and hear the actions. The judges shall confer not later
than 10 judicial days after a court has received notice of the existence of an
action in another circuit court.
(b) If the judges agree on the circuit
court in which the actions should be consolidated, the judges shall take such
action as is necessary to consolidate the actions in the circuit court.
(c) If the judges do not agree on the
circuit court in which the actions should be consolidated, the actions must be
consolidated in the court in which the juvenile action is filed or, if more
than one juvenile action is pending, in the court in which the first juvenile
action was filed.
(8) Nothing in this section requires the
consolidation of any administrative proceeding under ORS chapter 25 or 416 with
a juvenile court or other action. [Formerly 419B.260; 2003 c.396 §92; 2007
c.547 §12]
419B.809
Petition; contents; form; dismissal. (1) Any
person may file a petition in the juvenile court alleging that a child named
therein is within the jurisdiction of the court under ORS 419B.100.
(2) The petition and all subsequent court
documents in the proceeding must be entitled “In the matter of_____, a child.”
The petition must be in writing, signed by the petitioner or the petitioner’s
attorney and verified.
(3) When the petition is filed by a peace
officer, district attorney, attorney general, juvenile department counselor,
employee of the Department of Human Services or employee of the Oregon Youth
Authority, the petition may be verified upon the information and belief of the
petitioner. In all other cases, the petition must be based on the personal
knowledge of the petitioner.
(4) The petition alleging jurisdiction
must set forth in ordinary and concise language such of the following facts as
are known and indicate any that are not known. The petition shall:
(a) Contain the name, age and residence of
the child.
(b) Contain the facts that bring the child
within the jurisdiction of the court, including sufficient information to put
the parties on notice of the issues in the proceeding.
(c) Contain the name and residence of the
child’s parent and, in cases under ORS 419B.100, the names of persons with
whom, and the places where, the child has resided for the previous five years.
(d) Indicate whether there is a proceeding
involving the custody of the child pending in any court.
(e) Indicate whether a person other than a
parent has or claims to have physical custody of the child and, if so, the name
and residence of the person having physical custody of the child.
(f) Indicate whether the petitioner has
participated in any capacity in any other proceeding concerning the custody of
or parenting time or visitation with the child and, if so, the court, case
number and date of any child custody determination.
(g) Indicate whether the petitioner knows
of any proceeding that could affect the current proceeding and, if so, the
court, case number and date of the proceeding.
(5) At any time after a petition is filed,
the court may make an order providing for temporary custody of the child.
(6) The court, on motion of an interested
party or on its own motion, may at any time direct that the petition be
amended. If the amendment results in a substantial departure from the facts
originally alleged, the court shall grant such continuance as the interests of
justice may require.
(7) Prior to an adjudicatory hearing on
the petition, the court may dismiss the petition provided that every party has
had an opportunity to investigate and present a case supporting the petition or
has waived the opportunity to investigate and the right to present a case. At
or after an adjudicatory hearing, the court may dismiss the petition at any
other stage of the proceedings.
(8) The petition for jurisdiction must be
in substantially the following form.
______________________________________________________________________________
IN THE CIRCUIT COURT
OF THE STATE OF OREGON
FOR ____________ COUNTY
In the Matter
of )
) No.
) Petition
No.
)
A Child. ) PETITION
TO THE
ABOVE-ENTITLED COURT:
Petitioner,
whose name appears below, respectfully represents to the Court as follows:
1. The
name, age and residence of the above-named child are as follows: (name); (age);
(DOB); (resides
at), _______________, Oregon. (Alternative: The name and age of the above-named
child are as
follows:________. The child’s residence is provided in a sealed document
because
providing that
information would jeopardize the health, safety or liberty of the child or of
a party to the
case. ORS 109.767.)
2. The
child is within the jurisdiction of the Court by reason of the following facts:
A. _______________
B. _______________
3. Uniform
Child Custody Jurisdiction and Enforcement Act information:
A. Child(ren)’s
present address: _______________(Alternative: The child’s present address is
provided in a
sealed document because providing that information would jeopardize the
health, safety
or liberty of the child or of a party to the case. ORS 109.767.)
B. Places
the child(ren) has lived during the previous five years:
_______________
_______________
C. Names
and present addresses of persons with whom child(ren) has lived during that
period:
_______________
_______________
D. The
petitioner has/has not participated as a party or witness or in any other
capacity in any
other proceeding concerning the custody of or parenting time or visitation
with the child.
Court, case number and date of any child custody determination:
_______________
E. Petitioner
knows/does not know of any proceeding that could affect the current
proceeding.
Court, case number and date of the proceeding:
_______________
F. Petitioner
knows/does not know of any person who has physical custody of the
child(ren) or
claims rights of legal custody, physical custody, parenting time or visitation
with the
child(ren). Names and addresses of such persons:
_______________
4. The
child resides in ___________ County.
5. The
name and present address of each parent is as follows:
_______________
6. The
petition is not filed pursuant to the direction of this Court.
WHEREFORE, petitioner prays this Court to
have an investigation made of the circumstances concerning the above-named
child and to make such order or orders as are appropriate in the circumstances.
DATED:____________, 2___.
__________________
Petitioner
STATE OF OREGON )
) ss.
County of ______ )
I, ____________, being first duly sworn,
on oath or upon affirmation, depose and say that I am the petitioner in the
above-entitled proceeding, that I have read the foregoing petition, know the
contents thereof, and the same is true as I am informed and believe.
__________________
Petitioner
SIGNED AND SWORN to before me on____________,
2___.
_____________________
SEAL (Alternate Verification)
STATE OF OREGON )
) ss.
County of ______ )
I, ____________, being first duly sworn,
on oath or upon affirmation, depose and say that I am the petitioner in the
above-entitled proceeding, that I have read the foregoing petition, know the
contents thereof, and the same is true based on my personal knowledge of this
matter.
__________________
Petitioner
SIGNED AND SWORN to before me on____________,
2___.
_____________________
SEAL
______________________________________________________________________________
[2001
c.622 §4]
419B.812
Issuance of summons; time for hearing on petition.
(1) As used in this section and ORS 419B.815, 419B.819 and 419B.824, a “true
copy” of a summons or petition means an exact and complete copy of the original
summons or petition with a certificate upon the copy signed by an attorney of
record or a party that indicates that the copy is exact and complete.
(2) A summons under ORS 419B.815 or
419B.819 must be titled “In the matter of_____, a child” and must contain the
name of the person to be served and the address at which the summons and
petition may be served.
(3) The summons must be issued no later
than 30 days after the filing of 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.
(4) The petitioner, the petitioner’s
attorney, the juvenile department, the district attorney, the Attorney General
or the Department of Human Services may issue a summons.
(5) The summons must be signed by the:
(a) Petitioner;
(b) Petitioner’s attorney;
(c) Juvenile department;
(d) District attorney;
(e) Attorney General; or
(f) Department of Human Services.
(6) The summons must be served with a true
copy of the petition.
(7) The summons and petition may be served
by any competent person 18 years of age or older who is a resident of the state
where service is made or of this state.
(8) The summons and petition may be
transmitted by telegraph or facsimile as provided in ORS 419B.848 (3).
(9) The court shall fix the date and time
for the hearing on a petition at a reasonable time after service or, if service
is by publication, final publication of the summons. The time may not be less
than 24 hours after service or, if service is by publication, final publication
in a proceeding to establish jurisdiction under ORS 419B.100 and may not be
less than 10 days after service or, if service is by publication, final
publication in a proceeding to establish permanent guardianship or terminate
parental rights. [2001 c.622 §5; 2003 c.205 §1]
419B.815
Summons for proceeding to establish jurisdiction under ORS 419B.100; contents;
failure to appear. (1) A court may make an order
establishing jurisdiction under ORS 419B.100 only after service of summons and
a true copy of the petition as provided in ORS 419B.812, 419B.823, 419B.824,
419B.827, 419B.830, 419B.833 and 419B.839.
(2) A summons under this section must
require one of the following:
(a) That the person appear personally
before the court at the time and place specified in the summons for a hearing
on the allegations of the petition;
(b) That the person appear personally
before the court at the time and place specified in the summons to admit or
deny the allegations of the petition; or
(c) That the person file a written answer
to the petition within 30 days from the date on which the person is served with
the summons.
(3) If the court does not direct the type
of response to be required by the summons under subsection (2) of this section,
the summons shall require the person being summoned to respond in the manner
authorized by subsection (2)(c) of this section.
(4) A summons under this section must
contain:
(a) A statement that the petition seeks to
establish jurisdiction under ORS 419B.100 and that, if the person fails to
appear at the time and place specified in the summons or an order under ORS
419B.816 or, if the summons requires the filing of a written answer, fails to
file the answer within the time provided, the court may establish jurisdiction
without further notice either on the date specified in the summons or order or
on a future date, and may take any other action that is authorized by law
including, but not limited to, making the child a ward of the court and
removing the child from the legal and physical custody of the parent or other
person having legal or physical custody of the child.
(b) A notice that the person has the right
to be represented by an attorney. The notice must be in substantially the
following form:
______________________________________________________________________________
You
have a right to be represented by an attorney. If you wish to be represented by
an attorney, please retain one as soon as possible to represent you in this
proceeding. If you are the child or the parent or legal guardian of the child
and you cannot afford to hire an attorney and you meet the state’s financial
guidelines, you are entitled to have an attorney appointed for you at state
expense. To request appointment of an attorney to represent you at state
expense, you must contact the juvenile court immediately. Phone ________ for
further information.
______________________________________________________________________________
(c) A statement that, if the person is
represented by an attorney, the person has the responsibility to maintain
contact with the person’s attorney and to keep the attorney advised of the
person’s whereabouts.
(d) A statement that, if the person is
represented by an attorney, the person must appear personally at any hearing
where the person is required to appear, unless the person is the child at issue
in the proceeding who must be served with summons in accordance with ORS
419B.839 (1)(f). The statement must explain that to “appear personally” does
not include appearance through the person’s attorney.
(e) A statement that, if the court has
granted the person an exception in advance under ORS 419B.918, the person may
appear in any manner permitted by the court under ORS 419B.918.
(f) A statement that no later than 30 days
after the petition is filed each party about whom allegations have been made
must admit or deny the allegations and that, unless the court specifies
otherwise, the admission or denial may be made orally at the hearing or filed
with the court in writing.
(g) A statement that if the petition
alleges that the child has been physically or sexually abused, the court, at
the hearing, may enter an order restraining the alleged perpetrator of the
abuse from having contact with the child or attempting to contact the child and
requiring the alleged perpetrator to move from the household in which the child
resides.
(h) A statement that the parent or other
person legally obligated to support the child may be required to pay at some
future date for all or a portion of the support of the child, including the
cost of out-of-home placement, depending upon the ability of the parent or
other person to pay support.
(5) If the summons requires the person to
appear before the court to admit or deny the allegations of the petition or
requires the person to file a written answer to the petition, the summons must
advise the person that, if the person contests the petition, the court:
(a) Will schedule a hearing on the
allegations of the petition and order the person to appear personally; and
(b) May schedule other hearings related to
the petition and order the person to appear personally.
(6) At a hearing, when the person is
required to appear personally, or in the person’s written answer to the
petition, the person shall inform the court and the petitioner of the person’s
current residence address, mailing address and telephone number.
(7) If a person fails to appear for any
hearing related to the petition, or fails to file a written answer, as directed
by summons or court order under this section or ORS 419B.816, the court may
establish jurisdiction without further notice, either on the date specified in
the summons or order or on a future date, and may take any other action that is
authorized by law including, but not limited to, making the child a ward of the
court and removing the child from the legal and physical custody of the parent
or other person having legal or physical custody of the child.
(8) If the summons requires the person to
appear personally before the court, or if a court orders the person to appear
personally at a hearing in the manner provided in ORS 419B.816, the person may
not appear through the person’s attorney, unless the person is the child at
issue in the proceeding who has been served with summons in accordance with ORS
419B.839 (1)(f). [2001 c.622 §6; 2001 c.962 §54; 2003 c.205 §§10,11; 2007 c.497
§3]
419B.816
Notice to person contesting petition to establish jurisdiction.
If the person appears in the manner provided in ORS 419B.815 (2)(b) or (c) and
the person contests the petition, the court, by written order provided to the
person in person or mailed to the person at the address provided by the person,
or by oral order made on the record, shall:
(1) Inform the person of the time, place
and purpose of the next hearing or hearings related to the petition;
(2) Require the person to appear
personally at the next hearing or hearings related to the petition;
(3) Inform the person that, if the person
is represented by an attorney, the person’s attorney may not attend the hearing
in place of the person, unless the person is the child at issue in the
proceeding who has been served with summons in accordance with ORS 419B.839
(1)(f);
(4) Inform the person that, if the court
has granted the person an exception in advance under ORS 419B.918, the person
may appear in any manner permitted by the court under ORS 419B.918; and
(5) Inform the person that, if the person
fails to appear as ordered for any hearing related to the petition, the court
may establish jurisdiction without further notice, either on the date specified
in the summons or order or on a future date, and may take any other action that
is authorized by law including, but not limited to, making the child a ward of
the court and removing the child from the legal and physical custody of the
parent or other person having legal or physical custody of the child. [2003
c.205 §10b; 2007 c.497 §4]
419B.818
Form of summons under ORS 419B.815. The summons
for appearance in a proceeding to establish jurisdiction under ORS 419B.100
must be in substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT
OF THE STATE OF OREGON
FOR ____________ COUNTY
In the Matter
of )
) No.
) Petition No.
)
A Child. ) SUMMONS
TO:
Name and address
IN
THE NAME OF THE STATE OF OREGON:
You
are directed:
_____To
appear in person before this Court at _______________ (address), Courtroom #_____,
_______________, Oregon, on: the _____ day of_____, 2___, at ___ o’clock __.m.
for a hearing on the allegations of the petition and at any subsequent court-ordered
hearing. You must appear personally in the courtroom on the date and at the
time listed above. An attorney may not attend the hearing in your place.
However, if you are the child at issue in this proceeding and you have an
attorney, you may rely upon your attorney to appear at the hearing on your
behalf.
_____To
appear in person before this Court at _______________ (address), Courtroom #_____,
_______________, Oregon, on the _____ day of_____, 2___, at ___ o’clock __.m.
to admit or deny the allegations of the petition and at any subsequent
court-ordered hearing. You must appear personally in the courtroom on the date
and at the time listed above. An attorney may not attend the hearing in your
place. However, if you are the child at issue in this proceeding and you have
an attorney, you may rely upon your attorney to appear at the hearing on your
behalf.
_____To
file a written answer to the petition no later than 30 days after the date you
were served with this summons and to appear at any court-ordered hearing. An
attorney may not attend any court-ordered hearing in your place. However, if
you are the child at issue in this proceeding and you have an attorney, you may
rely upon your attorney to file and to appear at the hearing on your behalf.
NOTICE:
READ THESE PAPERS CAREFULLY!!
A
petition has been filed to establish jurisdiction under ORS 419B.100. A copy of
the petition is attached.
No
later than 30 days from the date the petition is filed, each person about whom
allegations have been made in the petition must admit or deny the allegations.
Unless directed otherwise above, the admission or denial may be made orally at
the hearing or filed with the court in writing.
If
you do not appear or file a written answer as directed above, or do not appear
at any subsequent court-ordered hearing, the Court may proceed without further
notice and take jurisdiction of the child(ren) either on the date specified in
this summons or on a future date, and make such orders and take such action as
authorized by law including, but not limited to, establishing wardship over the
child, ordering the removal of the child(ren) from the legal and physical
custody of the parent(s) or guardian(s) and, if the petition alleges that the
child(ren) has (have) been physically or sexually abused, restraining you from
having contact with, or attempting to contact, the child(ren) and requiring you
to move from the household in which the child(ren) resides (reside).
RIGHTS AND OBLIGATIONS
You
have a right to be represented by an attorney. If you wish to be represented by
an attorney, please retain one as soon as possible to represent you in this
proceeding. If you are the child or the parent or legal guardian of the child
and you cannot afford to hire an attorney and you meet the state’s financial
guidelines, you are entitled to have an attorney appointed for you at state
expense. To request appointment of an attorney to represent you at state
expense, you must contact the juvenile court immediately. Phone _____ for
further information. If you are represented by an attorney, it is your
responsibility to maintain contact with your attorney and to keep your attorney
advised of your whereabouts.
If
you are a parent or other person legally obligated to support the child(ren),
you have the obligation to support the child(ren). You may be required to pay
for compensation and reasonable expenses for the child(ren)’s attorney. You may
be required to pay support for the child(ren) while the child(ren) is (are) in
state financed or state supported custody. You may be required to provide
health insurance coverage for the child(ren) while the child(ren) is (are) in
state financed or state supported custody. You may be required to pay other
costs that arise from the child(ren) being in the jurisdiction of the Court. If
you are ordered to pay for the child(ren)’s support or there is an existing
order of support from a divorce or other proceeding, that support order may be
assigned to the state to apply to the costs of the child(ren)’s care.
If
this summons requires you to appear before the court to admit or deny the
allegations of the petition or requires you to file a written answer to the
petition and you contest the petition, the court will schedule a hearing on the
allegations of the petition and order you to appear personally and may schedule
other hearings related to the petition and order you to appear personally. If
you are ordered to appear, you must appear personally in the courtroom, unless
the court has granted you an exception in advance under ORS 419B.918 to appear
by other means including, but not limited to, telephonic or other electronic
means. If you are the child at issue in this proceeding and you have an
attorney, your attorney may appear in your place.
If
your rights are adversely affected by the court’s judgment or decision
regarding jurisdiction or disposition, you have the right to appeal under ORS
419A.200. If you decide to appeal a judgment or decision of the court, you must
file a notice of appeal no later than 30 days after the entry of the court’s
judgment or decision as provided in ORS 419A.200. You have a right to be
represented by an attorney in an appeal under ORS 419A.200. If you are the
child or the parent or legal guardian of the child and you cannot afford to
hire an attorney and you meet the state’s financial guidelines, you are
entitled to have an attorney appointed for you at state expense. To request
appointment of an attorney to represent you at state expense in an appeal under
ORS 419A.200, you must contact the juvenile court immediately.
Phone
_____ for further information.
By: (Name and Title)
Date Issued: ____________
______________________________________________________________________________
[2001
c.622 §7; 2003 c.73 §68; 2003 c.205 §8; 2007 c.497 §5; 2011 c.116 §1]
419B.819
Summons for proceeding to establish permanent guardianship or terminate
parental rights; contents; failure to appear. (1) A
court may make an order establishing permanent guardianship under ORS 419B.365
or terminating parental rights under ORS 419B.500, 419B.502, 419B.504, 419B.506
or 419B.508 only after service of summons and a true copy of the petition on
the parent, as provided in ORS 419B.812, 419B.823, 419B.824, 419B.827, 419B.830
and 419B.833. A putative father who satisfies the criteria set out in ORS
419B.839 (1)(d) or 419B.875 (1)(a)(C) also must be served with summons and a
true copy of the petition, unless a court of competent jurisdiction has found
him not to be the child or ward’s legal or biological father or he has filed a
petition for filiation that was dismissed and no appeal of the judgment or
order is pending.
(2) A summons under this section must
require one of the following:
(a) That the parent appear personally
before the court at the time and place specified in the summons for a hearing
on the allegations of the petition;
(b) That the parent appear personally
before the court at the time and place specified in the summons to admit or
deny the allegations of the petition; or
(c) That the parent file a written answer
to the petition within 30 days from the date on which the parent is served with
the summons.
(3) If the court does not direct the type
of response to be required by the summons under subsection (2) of this section,
the summons shall require the parent to respond in the manner authorized by
subsection (2)(c) of this section.
(4) A summons under this section must
contain:
(a) A statement that the rights of the
parent are proposed to be terminated or, if the petition seeks to establish a
permanent guardianship, that a permanent guardianship is proposed to be
established.
(b) A statement that, if the parent fails
to appear at the time and place specified in the summons or in an order under
ORS 419B.820 or, if the summons requires the filing of a written answer, fails
to file the answer within the time provided, the court may, without further
notice and in the parent’s absence, terminate the parent’s rights or grant the
guardianship petition, either on the date specified in the summons or order or
on a future date, and may take any other action that is authorized by law.
(c) A notice that the parent has the right
to be represented by an attorney. The notice must be in substantially the
following form:
______________________________________________________________________________
You
have a right to be represented by an attorney. If you wish to be represented by
an attorney, please retain one as soon as possible to represent you in this
proceeding. If you cannot afford to hire an attorney and you meet the state’s
financial guidelines, you are entitled to have an attorney appointed for you at
state expense. To request appointment of an attorney to represent you at state
expense, you must contact the juvenile court immediately. Phone ________ for
further information.
______________________________________________________________________________
(d) A statement that, if the parent is
represented by an attorney, the parent has the responsibility to maintain
contact with the parent’s attorney and to keep the attorney advised of the
parent’s whereabouts.
(e) A statement that, if the parent is
represented by an attorney, the parent must appear personally at any hearing
where the parent is required to appear. The statement must explain that “appear
personally” does not include appearance through the parent’s attorney.
(f) A statement that, if the court has
granted the parent an exception in advance under ORS 419B.918, the parent may
appear in any manner permitted by the court under ORS 419B.918.
(5) If the summons requires the parent to
appear before the court to admit or deny the allegations of the petition or
requires the parent to file a written answer to the petition, the summons must
advise the parent that, if the parent contests the petition, the court:
(a) Will schedule a hearing on the
allegations of the petition and order the parent to appear personally; and
(b) May schedule other hearings related to
the petition and order the parent to appear personally.
(6) At a hearing, when the parent is
required to appear personally, or in the parent’s written answer to the
petition, the parent shall inform the court and the petitioner of the parent’s
current residence address, mailing address and telephone number.
(7) If a parent fails to appear for any
hearing related to the petition, or fails to file a written answer, as directed
by summons or court order under this section or ORS 419B.820, the court,
without further notice and in the parent’s absence, may:
(a) Terminate the parent’s rights or, if
the petition seeks to establish a permanent guardianship, grant the
guardianship petition either on the date specified in the summons or order or
on a future date; and
(b) Take any other action that is
authorized by law.
(8) If the summons requires the parent to
appear personally before the court, or if a court orders the parent to appear
personally at a hearing in the manner provided in ORS 419B.820, the parent may
not appear through the parent’s attorney.
(9) If a guardian ad litem has been
appointed for a parent under ORS 419B.231, a copy of the summons served on the
parent under this section must be provided to the guardian ad litem. [2003
c.205 §3; 2005 c.160 §2; 2005 c.450 §5; 2007 c.454 §13; 2007 c.497 §6]
419B.820
Notice to parent contesting petition to establish permanent guardianship or terminate
parental rights. If the parent appears in the
manner provided in ORS 419B.819 (2)(b) or (c) and the parent contests the
petition, the court, by written order provided to the parent in person or
mailed to the parent at the address provided by the parent or by oral order
made on the record, shall:
(1) Inform the parent of the time, place
and purpose of the next hearing or hearings related to the petition;
(2) Require the parent to appear
personally at the next hearing or hearings related to the petition;
(3) Inform the parent that, if the parent
is represented by an attorney, the parent’s attorney may not attend the hearing
in place of the parent;
(4) Inform the parent that, if the court
has granted the parent an exception in advance under ORS 419B.918, the parent
may appear in any manner permitted by the court under ORS 419B.918; and
(5) Inform the parent that, if the parent
fails to appear as ordered for any hearing related to the petition, the court,
without further notice and in the parent’s absence, may:
(a) Terminate the parent’s rights or, if
the petition seeks to establish a permanent guardianship, grant the
guardianship petition either on the date specified in the order or on a future
date; and
(b) Take any other action that is
authorized by law. [2003 c.205 §5; 2007 c.497 §7]
Note:
419B.820 was added to and made a part of ORS chapter 419B by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
419B.821
[2001 c.622 §8; 2003 c.230 §1; renumbered 419B.823 in 2003]
419B.822
Form of summons under ORS 419B.819. The summons
for appearance in a proceeding to establish permanent guardianship under ORS
419B.365 or to terminate parental rights under ORS 419B.500, 419B.502,
419B.504, 419B.506 or 419B.508 must be in substantially the following form:
______________________________________________________________________________
IN THE CIRCUIT COURT
OF THE STATE OF OREGON
FOR ____________ COUNTY
In the Matter
of )
) No.
) Petition No.
)
A Child. ) SUMMONS
TO:
Name and address
IN
THE NAME OF THE STATE OF OREGON:
You
are directed:
___To
appear in person before this Court at _______________ (address), Courtroom #_____,
_______________, Oregon, on: the _____ day of_____, 2___, at ___ o’clock __.m.
for a hearing on the allegations of the petition and at any subsequent
court-ordered hearing. You must appear personally in the courtroom on the date
and at the time listed above. An attorney may not attend the hearing in your
place.
___To
appear in person before this Court at _______________ (address), Courtroom #_____,
_______________, Oregon, on: the _____ day of_____, 2___, at ___ o’clock __.m.
to admit or deny the allegations of the petition and at any subsequent
court-ordered hearing. You must appear personally in the courtroom on the date
and at the time listed above. An attorney may not attend the hearing in your
place.
___To
file a written answer to the petition no later than 30 days after the date you
were served with this summons and to appear at any court-ordered hearing. An
attorney may not attend any court-ordered hearing in your place.
NOTICE:
READ THESE PAPERS CAREFULLY!!
A
petition has been filed to:
___Establish
a permanent guardianship under ORS 419B.365.
___Terminate
your parental rights under ORS 419B.500, 419B.502, 419B.504, 419B.506 or
419B.508.
A
copy of the petition is attached.
If
you do not appear or file a written answer as directed above, or do not appear
at any subsequent court-ordered hearing, the Court may proceed without further
notice and (establish a permanent guardianship) (terminate your parental
rights) either on the date specified in this summons or on a future date, and
make such orders and take such action as authorized by law.
RIGHTS AND OBLIGATIONS
You
have a right to be represented by an attorney. If you wish to be represented by
an attorney, please retain one as soon as possible to represent you in this
proceeding. If you cannot afford to hire an attorney and you meet the state’s
financial guidelines, you are entitled to have an attorney appointed for you at
state expense. To request appointment of an attorney to represent you at state
expense, you must contact the juvenile court immediately. Phone _____ for
further information. If you are represented by an attorney, it is your
responsibility to maintain contact with your attorney and to keep your attorney
advised of your whereabouts.
If
this summons requires you to appear before the court to admit or deny the
allegations of the petition or requires you to file a written answer to the
petition and you contest the petition, the court will schedule a hearing on the
allegations of the petition and order you to appear personally and may schedule
other hearings related to the petition and order you to appear personally. If
you are ordered to appear, you must appear personally in the courtroom, unless
the court has granted you an exception in advance under ORS 419B.918 to appear
by other means including, but not limited to, telephonic or other electronic
means.
By: (Name and Title)
Date Issued: ____________
______________________________________________________________________________
[2003
c.205 §7; 2007 c.497 §8]
419B.823
Service of summons generally. The summons
must be served, either inside or outside of the state, in a manner reasonably
calculated under all the circumstances to apprise the person served of the
existence and pendency of the juvenile proceeding and to afford the person a
reasonable opportunity to appear. Service of summons may be made, subject to
the restrictions and requirements of ORS 419B.824, by the following methods:
(1) Personal service of the summons and
petition upon the person to be served;
(2) Substituted service by leaving a copy
of the summons and petition at a person’s dwelling house or usual place of
abode;
(3) Office service by leaving the summons
and petition with a person who is apparently in charge of an office;
(4) Service by mail; or
(5) Alternative service as ordered by the
court under ORS 419B.824 (5). [Formerly 419B.821]
419B.824
Methods of serving summons. (1) Personal service may be made
by delivery of a true copy of the summons and a true copy of the petition to
the person to be served.
(2) Substituted service may be made by
delivering a true copy of the summons and a true copy of the petition at the
dwelling house or usual place of abode of the person to be served to any person
14 years of age or older residing in the dwelling house or usual place of
abode. When substituted service is used, the person effecting service shall
cause to be mailed a true copy of the summons and a true copy of the petition
and a statement of the date, time, and place at which substituted service was
made. The summons, petition and statement must be mailed by first class mail to
the dwelling house or usual place of abode of the person who has been served as
soon as is practicable after the substituted service was made. When the
computation of a period of time is based on service of summons, substituted
service is complete upon such mailing.
(3) If the person to be served maintains
an office for conducting business, office service may be made by leaving a true
copy of the summons and a true copy of the petition at the office during normal
working hours with the person who is apparently in charge. When office service
is used, the person effecting service shall cause to be mailed a true copy of
the summons and a true copy of the petition and a statement of the date, time,
and place at which office service was made. The summons, petition and statement
must be mailed by first class mail to the person who has been served at the
person’s dwelling house or usual place of abode, place of business or such
other place under the circumstances that is most reasonably calculated to
apprise the person of the existence and pendency of the juvenile proceeding.
The summons, petition and statement must be mailed as soon as is practicable
after the office service was made. When the computation of a period of time is
based on service of summons, office service is complete upon such mailing.
(4) Service by mail must be made by
mailing a true copy of the summons and a true copy of the petition to the
person to be served by first class mail and another true copy of the petition
and another true copy of the summons by certified or registered mail, return
receipt requested, or by express mail. Service by mail is not complete unless
the person to be served signs a receipt for the mail. Service by mail is
complete on the date that the person to be served signs a receipt for the mail.
(5)(a) If any parent or guardian required
to be summoned as provided in ORS 419B.812 to 419B.839 cannot be served as
provided in ORS 419B.823 (1) to (4), the court may order alternative service of
summons on the parent or guardian in any of the following methods or
combination of methods that under the circumstances is most reasonably
calculated to notify the parent or guardian of the existence and pendency of the
action:
(A) By sending the parent or guardian a
copy of the summons by first class mail and an additional copy by registered or
certified mail, return receipt requested, to one or more addresses;
(B) By posting at specified locations; or
(C) By publication of summons pursuant to
subsection (6) of this section.
(b) If alternative service is ordered the
court shall specify a time for response.
(6)(a) On written motion and affidavit
that service cannot be made by any method otherwise specified in this section,
the court may order service by publication.
(b) In addition to the contents of a
summons as described in ORS 419B.815 or 419B.819, a published summons must also
contain the date of first publication of the summons. If the names of one or
both parents or the guardian are unknown, they may be summoned as “The
parent(s) or guardian of (naming or describing the child), found (stating the
address or place where the child was found)”.
(c) An order for publication must direct
that publication be made in a newspaper of general circulation in the county
where the action is commenced or, if there is no such newspaper, in a newspaper
to be designated as most likely to give notice to the person to be served. The
summons must be published three times in successive calendar weeks. If the
person effecting service knows of a specific location other than the county
where the action is commenced where publication might reasonably result in
actual notice to the person to be served, the person effecting service shall so
state in the affidavit required by paragraph (a) of this subsection, and the
court may order publication in a comparable manner at such location in addition
to, or in lieu of, publication in the county where the action is commenced.
(d) If the court orders service by
publication and the person effecting service does not know and cannot upon
diligent inquiry ascertain the current address of a person being served, a copy
of the summons and the petition must be mailed by the methods specified in
subsection (4) of this section to the person being served at that person’s last
known address. If the person effecting service does not know, and cannot
ascertain upon diligent inquiry, the current or last known address of the
person being served, mailing of a copy of the summons and the petition is not
required.
(7) For purposes of this section, “first
class mail” does not include certified or registered mail or any other form of
mail that may delay actual delivery of the mail to the addressee. [2001 c.622 §9;
2003 c.205 §14; 2003 c.230 §2]
419B.827
Responsibility for costs of service of summons and travel expenses of party
summoned. The court may authorize payment of
travel expenses of any party summoned. Except as provided in this section,
responsibility for the payment of the cost of service of summons or other
process on any party, and for payment of travel expenses so authorized, shall
be borne by the party issuing the summons or requesting the court to issue the
summons. When the Department of Human Services issues the summons or requests
the court to issue the summons, responsibility for such payment shall be borne
by the county. [Formerly 419B.280]
419B.830
Return of summons. The summons must be promptly
returned to the clerk with whom the petition is filed with proof of service or
mailing or with proof that the person to be served cannot be found. The summons
may be returned by first class mail. [2001 c.622 §10]
419B.833
Proof of service of summons or mailing. (1) Except
for service by publication, proof of service of summons or mailing must be made
by:
(a) The certificate of the server if the
summons is not served by a sheriff or a sheriff’s deputy. The certificate must
indicate the time, place and manner of service, that the server is a competent
person of at least 18 years of age and is a resident of the state of service or
of this state and that the server reasonably believes that the person served is
the identical one named in the summons. If the person served was not personally
served, the server shall state in the certificate when, where and with whom a
copy of the summons and petition was left or describe in detail the manner and
circumstances of service. If the summons and petition were mailed, the
certificate may be made by the person completing the mailing or the attorney
for any party and must state the circumstances of mailing and have the return
receipt attached.
(b) The sheriff’s or sheriff’s deputy’s
certificate of service if the summons is served by a sheriff or a sheriff’s
deputy. The certificate must indicate the time, place and manner of service
and, if the person served was not personally served, when, where and with whom
a copy of the summons and petition was left or describe in detail the manner
and circumstances of service. If the summons and petition were mailed, the
certificate must state the circumstances of mailing and have the return receipt
attached.
(2) Service by publication must be proved
by an affidavit in substantially the following form:
______________________________________________________________________________
AFFIDAVIT OF PUBLICATION
STATE OF OREGON )
) ss.
County of ______ )
I,
________, being first duly sworn, depose and say that I am the ________
(here set forth the title or job description of the person making the
affidavit), of the________, a newspaper of general circulation published at ________
in the aforesaid county and state; that I know from my personal knowledge that
the________, a printed copy of which is hereto annexed, was published in the
entire issue of said newspaper three times in the following issues: (here set
forth dates of issues in which the same was published).
Subscribed
and sworn to before me this _____ day of____________, 2___.
__________________
Notary Public for Oregon
My commission expires:____________.
______________________________________________________________________________
(3) The affidavit of service may be made
and certified before a notary public or other official authorized to administer
oaths by the United States, any state or territory of the United States or the
District of Columbia. The notary public or official shall affix the notary’s or
official’s official seal, if any, to the affidavit. The signature of the notary
or other official, when attested by the affixing of the official seal of the
person, is prima facie evidence of authority to make and certify the affidavit.
(4) A certificate or affidavit containing
proof of service may be made upon the summons or as a separate document
attached to the summons.
(5) In addition to the other ways
specified in this section, proof of service may be made by a written acceptance
of service by the person who was served.
(6) If summons has been properly served,
failure to make or file a proper proof of service does not affect the validity
of the service. [2001 c.622 §11]
419B.836
Effect of error in summons or service of summons.
Failure to comply with provisions of ORS 419B.812, 419B.815, 419B.818,
419B.819, 419B.822 and 419B.839 relating to the form of summons, issuance of
summons or who may serve summons does not affect the validity of service of
summons or the existence of jurisdiction over the person if the court
determines that the served person received actual notice of the substance and
pendency of the action. The court may allow amendment to a summons or affidavit
or certificate of service of summons. The court shall disregard any error in
the content of summons that does not materially prejudice the substantive
rights of the party to whom summons was issued. If service is made in any
manner complying with ORS 419B.812 to 419B.839, the court shall also disregard
any error in the service of summons that does not violate the due process
rights of the party against whom summons was issued. [2001 c.622 §12; 2003
c.205 §15]
419B.839
Required and discretionary summons. (1) Summons
in proceedings to establish jurisdiction under ORS 419B.100 must be served on:
(a) The parents of the child without
regard to who has legal or physical custody of the child;
(b) The legal guardian of the child;
(c) A putative father of the child who
satisfies the criteria set out in ORS 419B.875 (1)(a)(C), except as provided in
subsection (4) of this section;
(d) A putative father of the child if
notice of the initiation of filiation or paternity proceedings was on file with
the Center for Health Statistics of the Oregon Health Authority prior to the
initiation of the juvenile court proceedings, except as provided in subsection
(4) of this section;
(e) The person who has physical custody of
the child, if the child is not in the physical custody of a parent; and
(f) The child, if the child is 12 years of
age or older.
(2) If it appears to the court that the
welfare of the child or of the public requires that the child immediately be
taken into custody, the court may indorse an order on the summons directing the
officer serving it to take the child into custody.
(3) Summons may be issued requiring the
appearance of any person whose presence the court deems necessary.
(4) Summons under subsection (1) of this
section is not required to be given to a putative father whom a court of
competent jurisdiction has found not to be the child’s legal father or who has
filed a petition for filiation that was dismissed if no appeal from the
judgment or order is pending.
(5) If a guardian ad litem has been
appointed for a parent under ORS 419B.231, a copy of a summons served on the
parent under this section must be provided to the guardian ad litem. [2001
c.622 §13; 2003 c.205 §9; 2005 c.160 §3; 2005 c.450 §6; 2009 c.595 §365]
419B.842
When arrest warrant authorized. (1) No person
required to appear as provided in ORS 419B.812 to 419B.839 shall without
reasonable cause fail to appear or, where directed in the summons, to bring the
child before the court.
(2) If the summons cannot be served, if
the person to whom the summons is directed fails to obey it or if it appears to
the court that the summons will be ineffectual, the court may direct issuance
of a warrant of arrest against the person summoned or against the child. [Formerly
419B.282]
419B.845
Restraining order when child abuse alleged. (1)(a)
When a petition has been filed alleging that the child has been physically or
sexually abused, the court may enter an order restraining the alleged
perpetrator of the abuse from having contact with the child or attempting to
contact the child and requiring the alleged perpetrator to move from the
household in which the child resides. The court may issue a restraining order
only if the court finds that:
(A) There is probable cause to believe the
abuse occurred and that the person to be restrained committed the abuse; and
(B) The order is in the best interest of
the child.
(b) Upon finding that to do so would aid
in protecting the victim of the alleged abuse, the court may enter, in addition
to a restraining order described in paragraph (a) of this subsection, other
appropriate orders including, but not limited to, orders that control contact
between the alleged abuser and other children in the household.
(c) The court shall include in an order
entered under this subsection the following information about the person to be
restrained:
(A) Name;
(B) Address;
(C) Age and birth date;
(D) Race;
(E) Sex;
(F) Height and weight; and
(G) Color of hair and eyes.
(d) The court may include in the order a
provision that a peace officer accompany the restrained person to the household
when it is necessary for the person to remove the person’s essential personal
effects including, but not limited to, clothing, toiletries, medications,
Social Security cards, birth certificates, identification and tools of the
trade. The restrained person is entitled to remove the person’s essential
personal effects under this paragraph on one occasion only and is required to
be accompanied by a peace officer. The restrained person and the peace officer
shall remain for no longer than 20 minutes and the peace officer may
temporarily interrupt the removal of essential personal effects at any time.
Nothing in this paragraph affects a peace officer’s duty to arrest under ORS
133.055 and 133.310. A peace officer who accompanies a restrained person under
this paragraph has immunity from any liability, civil or criminal, for any
actions the person commits during the removal of the person’s essential personal
effects.
(2) If the court enters an order under
this section:
(a) The clerk of the court shall provide
without charge the number of certified copies of the petition and order
necessary to effect service and shall have a copy of the petition and order
delivered to the sheriff or other person qualified to serve the order for
service upon the person to be restrained; and
(b) The sheriff or other person qualified
to serve the order shall serve the person to be restrained personally unless
that person is present at the hearing. After accepting the order, if the
sheriff or other person cannot complete service within 10 days, the sheriff or
other person shall hold the order for future service and file a return to the
clerk of the court showing that service was not completed.
(3) Within 30 days after an order is
served under this section, the restrained person may file a written request
with the court and receive a court hearing on any portion of the order. If the
restrained person requests a hearing under this subsection:
(a) The clerk of the court shall notify
the parties and, if the restrained person is not a party, the restrained person
of the date and time of the hearing; and
(b) The court shall hold the hearing
within 21 days after the request and may cancel or modify the order.
(4) Upon receipt of a copy of the order
and notice of completion of any required service by a member of a law
enforcement agency, the sheriff shall immediately enter the order into the Law
Enforcement Data System maintained by the Department of State Police. If the
order was served on the person to be restrained by a person other than a member
of a law enforcement agency, the county sheriff shall enter the order into the
Law Enforcement Data System upon receipt of a true copy of the affidavit of
proof of service. Entry into the Law Enforcement Data System constitutes notice
to all law enforcement agencies of the existence of the order. Law enforcement
agencies shall establish procedures adequate to ensure that an officer at the
scene of an alleged violation of the order may be informed of the existence and
terms of the order. The order is fully enforceable in any county in this state.
(5) A restraining order issued pursuant to
this section remains in effect for a period of one year or until the order is
modified, amended or terminated by court order.
(6) A court that issued a restraining
order under this section may renew the order for a period of up to one year if
the court finds that there is probable cause to believe the renewal is in the
best interest of the child. The court may renew the order on motion alleging
facts supporting the required finding. If the renewal order is granted,
subsections (2) and (3) of this section apply.
(7) If a restraining order issued pursuant
to this section is terminated before its expiration date, the clerk of the
court shall immediately deliver a copy of the termination order to the sheriff.
The sheriff shall promptly remove the original order from the Law Enforcement
Data System.
(8) Pending a contempt hearing for alleged
violation of a restraining order issued under this section, a person arrested
and taken into custody pursuant to ORS 133.310 may be released as provided in
ORS 135.230 to 135.290. Unless the order provides otherwise, the security
amount for release shall be $5,000.
(9) When a restraining order entered under
this section prohibits the restrained person from contacting the protected
person in writing, the restrained person does not violate the restraining order
by serving on the protected person a copy of a notice of appeal of the
restraining order or any other document required by law to be served on the
adverse party to an appeal if:
(a) Neither the restrained person nor the
protected person is represented by counsel;
(b) The restrained person serves the
document by mail; and
(c) The contents of the document are not
intended to harass or intimidate the protected person. [Formerly 419B.190; 2007
c.255 §13; 2011 c.269 §7]
419B.846
Service of restraining order. (1) A sheriff
may serve a restraining order issued under ORS 419B.845 in the county in which
the sheriff was elected and in any county that is adjacent to the county in
which the sheriff was elected.
(2) A sheriff may serve and enter into the
Law Enforcement Data System a copy of a restraining order under ORS 419B.845
that was transmitted to the sheriff by a court or law enforcement agency using
an electronic communication device. Before transmitting a restraining order to
a sheriff under this subsection by telephonic facsimile or electronic mail, the
person sending the copy must receive confirmation from the sheriff’s office
that an electronic communication device is available and operating. For
purposes of this subsection, “electronic communication device” means a device
by which any kind of electronic communication can be made, including but not
limited to communication by telephonic facsimile and electronic mail. [2003
c.304 §14; 2007 c.255 §14; 2011 c.269 §8]
419B.848
Process generally. (1) All process authorized to be
issued by any court or officer of the court runs in the name of the State of
Oregon and must be signed by the officer issuing the process, and if the
process is issued by a clerk of the court, the seal of office of the clerk must
be affixed to the process. Summonses and subpoenas are not process.
(2) A civil process may be served or
executed on Sunday or any legal holiday. No limitation or prohibition stated in
ORS 1.060 applies to the service or execution of a civil process on a Sunday or
legal holiday.
(3) An order in any case, and all other
papers requiring service, may be transmitted by telegraph or facsimile for
service in any place. The facsimile or telegraphic copy, as defined in ORS
165.840, of the order or paper transmitted may be served or executed by the
officer or person to whom it is sent for that purpose and returned by the
officer or person if any return is required in the same manner and with the
same force and effect in all respects as if the copy were the original. The
officer or person serving or executing the order or paper has the same
authority and is subject to the same liabilities as if the copy were the
original. The original, if an order, must be filed in the court from which it
was issued and a certified copy of the order must be preserved in the office
from which it was sent. The operator may use either the original or certified
copy to transmit the order or paper.
(4) Proof of service or execution of
process must be made as provided in ORS 419B.833. [2001 c.622 §14]
419B.851
Service of process; filing; proof of service. (1)
Except as otherwise provided in ORS 419B.800 to 419B.929, every order, every
petition and answer subsequent to the original petition, every written motion
other than one that may be heard ex parte and every written request and similar
paper must be served upon each of the parties.
(2)(a) Whenever under ORS 419B.800 to
419B.929 service is required or permitted to be made upon a party, and that
party is represented by an attorney, the service must be made upon the attorney
unless otherwise ordered by the court. Service upon the attorney or upon a
party must be made by delivering a copy to the attorney or party, by mailing it
to the attorney’s or party’s last known address or, if the party is represented
by an attorney, by facsimile communication device as provided in subsection (6)
of this section. As used in this paragraph, “delivery of a copy” means:
(A) Handing it to the person to be served;
(B) Leaving it at the person’s office with
the person’s clerk or a person apparently in charge of the office or, if there
is no one in charge, leaving it in a conspicuous place in the office; or
(C) If the office is closed or the person
to be served has no office, leaving it at the person’s dwelling house or usual
place of abode with a person who is over 14 years of age and who resides at the
dwelling house or usual place of abode.
(b) A party who has appeared without
providing an appropriate address for service may be served by placing a copy of
the paper required to be served in the court file. Service by mail is complete
upon mailing. Service of any notice or other paper to bring a party into
contempt may only be upon such party personally.
(3) When a petition is filed under
subsection (1) of this section alleging that a child who is a foreign national
is within the jurisdiction of the court, or when a motion is filed requesting
implementation of a plan other than return of a ward to the ward’s parent, a
copy of the petition or motion shall be served on the consulate for the child
or ward’s country.
(4) All papers required to be served upon
a party under subsection (1) of this section must be filed with the court
within a reasonable time after service. Except as otherwise provided in ORS
419B.812 to 419B.839 and 419B.845, proof of service of all papers required or
permitted to be served may be by written acknowledgment of service, by an
affidavit of the person making service or by a certificate of an attorney.
Proof of service may be made upon the papers served or as a separate document
attached to the papers. When service is made by facsimile communication device,
proof of service must be made by an affidavit of the person making service or
by a certificate of an attorney. The printed confirmation of receipt of the
message generated by the facsimile machine must be attached to the affidavit or
certificate.
(5) The filing of any papers with the
court must be made by filing them with the clerk of the court or the person
exercising the duties of that office. The clerk or the person exercising the
duties of that office shall indorse the time of day, day of the month, month
and year upon the paper. The clerk or person exercising the duties of that
office is not required to receive any paper for filing unless:
(a) The contents of the paper are legible;
and
(b) All of the following are legibly
indorsed on the front of the paper:
(A) The name of the court;
(B) The title of the cause and the paper;
(C) The names of the parties; and
(D) If there is one, the name of the
attorney for the parties requesting filing.
(6) Whenever under ORS 419B.800 to
419B.929 service is required or permitted to be made upon a party and that
party is represented by an attorney, the service may be made upon the attorney
by means of a facsimile if the attorney maintains such a device at the attorney’s
office and the device is operating at the time service is made. [2001 c.622 §15;
2003 c.143 §5; 2003 c.396 §34b]
419B.854
Computing statutory time periods. (1) In
computing any period of time prescribed or allowed by any applicable statute,
by the local rules of any court or by order of court, the day of the act or
event from which the designated period of time begins to run is not included.
The last day of the period so computed is included, unless it is a Saturday or
legal holiday, in which event the period runs until the end of the next day
that is not a Saturday or a legal holiday. If the period of time relates to
serving a public officer or filing a document at a public office and if the last
day falls on a day when that particular office is closed before the end of or
for all of the normal work day, the last day is excluded in computing the
period of time, in which event the period runs until the close of office hours
on the next day the office is open for business. When the period of time
prescribed or allowed, without including the extra time allowed by subsection
(2) of this section, is less than seven days, intermediate Saturdays and legal
holidays are excluded in the computation. As used in this subsection, a “legal
holiday” means a day described in ORS 187.010 or 187.020.
(2) Except for service of summons,
whenever a party has the right or is required to do some act within a
prescribed period after the service of a notice or other paper upon the party
and the notice or paper is served by mail, three days are added to the
prescribed period. [2001 c.622 §16]
419B.857
Pleadings; construction. (1) All petitions, answers,
motions and other papers must be liberally construed with a view of substantial
justice between the parties.
(2) In every stage of an action, the court
shall disregard an error or defect in a petition, answer, motion, other paper
or proceeding that does not affect the substantial rights of the adverse party.
[2001 c.622 §17]
419B.860
Motions. (1) An application for an order is a
motion. Unless a motion is made in court, the motion must be in writing, state
with particularity the factual and legal grounds for the motion and set forth
the relief or order sought.
(2) ORS 419B.863 and 419B.866 and any
local rules of any court applicable to captions, signing and other matters of
form of petitions and answers apply to all motions and other papers provided
for by ORS 419B.800 to 419B.929. [2001 c.622 §18]
419B.863
Pleadings; captions. (1) Every petition, answer,
motion or other paper must contain a caption setting forth the name of the
court, the title of the action and the register number of the case.
(2) When a party does not know the name of
another party and alleges that lack of knowledge in a petition, answer, motion
or other paper, the other party may be designated by any name. When the other
party’s true name is discovered, the process and all petitions, answers,
motions, other papers and proceedings in the case may be amended by
substituting the true name. [2001 c.622 §19]
419B.866
Signing pleadings required; effect of signing or not signing.
(1) If a party is represented by an attorney, every answer, motion and other
paper of the party must be signed by an attorney of record who is an active
member of the Oregon State Bar. If a party is not represented by an attorney,
the party shall sign the petition, answer, motion or other paper and state the
address of the party. Only petitions need be verified. Motions must be accompanied
by an affidavit unless the parties agree otherwise.
(2) If a petition, answer, motion or other
paper is not signed, it must be stricken unless it is signed promptly after the
omission is called to the attention of the pleader or movant.
(3)(a) Except as otherwise provided in
paragraph (d) of this subsection, by signing, filing or otherwise submitting an
argument in support of a petition, answer, motion or other paper, an attorney
or party makes the certifications to the court identified in paragraphs (b),
(c) and (d) of this subsection and further certifies that the certifications
are based on the person’s reasonable knowledge, information and belief formed
after the making of any inquiry that is reasonable under the circumstances.
(b) A party or attorney certifies that the
petition, answer, motion or other paper is not being presented for any improper
purpose including, but not limited to, harassing or causing unnecessary delay
or needless increase in the cost of litigation.
(c) An attorney certifies that the claims
and other legal positions taken in the petition, answer, motion or other paper
are warranted by existing law or by a nonfrivolous argument for the extension,
modification or reversal of existing law or the establishment of new law.
(d) A party or attorney certifies that the
allegations and other factual assertions in the petition, answer, motion or
other paper are supported by evidence. An allegation or other factual assertion
that the party or attorney does not wish to certify is supported by evidence
must be specifically identified. The party or attorney certifies that the party
or attorney reasonably believes that an allegation or other factual assertion
so identified will be supported by evidence after further investigation and discovery.
[2001 c.622 §20]
419B.869
Responding to pleadings; time limit. (1) No later
than 30 days after a petition alleging jurisdiction under ORS 419B.100 is
filed, each party about whom allegations have been made shall admit or deny the
allegations. Unless the court specifies how admissions or denials are to be
made pursuant to ORS 419B.800, admissions and denials may be made orally in
court or in writing.
(2) Allegations in a petition that are not
admitted or denied are denied. [2001 c.622 §21]
419B.872
Amendment of pleadings. (1) A petition, answer, motion
or other paper may be amended by a party within a reasonable time before an
adjudication on the petition, answer, motion or other paper. Whenever an
amended petition, answer, motion or other paper is filed, it shall be served
upon all parties. When the interests of justice require additional time to
prepare, due to the amendments to the petition, answer, motion or other paper,
the court shall grant such additional time as is reasonable.
(2) The court, on motion of an interested
party or on its own motion, may at any time direct that the petition be
amended. If the amendment results in a substantial departure from the facts
originally alleged, the court shall grant such continuance as the interests of
justice may require. [Formerly 419B.245]
419B.875
Parties to proceedings; rights of limited participation; status of grandparents;
interpreters. (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 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 or
biological 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 or biological 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 proceeding concerning the child or ward. 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 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 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. [Formerly 419B.115; 2003 c.231 §§1,2; 2003
c.396 §§93a,94a; 2005 c.160 §4; 2005 c.450 §8; 2007 c.454 §11; 2007 c.611 §9]
419B.878
Applicability of Indian Child Welfare Act. When a
court conducts a hearing, the court shall inquire whether a child is an Indian
child subject to the Indian Child Welfare Act. If the court knows or has reason
to know that an Indian child is involved, the court shall enter an order
requiring the Department of Human Services to notify the Indian child’s tribe
of the pending proceedings and of the tribe’s right to intervene and shall
enter an order that the case be treated as an Indian Child Welfare Act case
until such time as the court determines that the case is not an Indian Child
Welfare Act case. [2001 c.622 §22]
419B.881
Disclosure; scope; when required; exceptions; breach of duty to disclose.(1)
In all proceedings brought under ORS 419B.100 or 419B.500, each party,
including the state, shall disclose to each other party and to a guardian ad
litem appointed under ORS 419B.231 the following information and material
within the possession or under the control of the party:
(a) The names and addresses of all persons
the party intends to call as witnesses at any stage of the hearing, together
with any relevant written or recorded statements or memoranda of any oral
statements of such persons;
(b) Any written or recorded statements or
memoranda of any oral statements made either by the parent or by the child to
any other party or agent for any other party;
(c) Any reports or statements of experts
who will be called as witnesses, including the results of any physical or mental
examinations and of comparisons or experiments that the party intends to offer
in evidence at the hearing; and
(d) Any books, papers, documents or
photographs that the party intends to offer in evidence at the hearing, or that
were obtained from or belong to any other party.
(2)(a) Disclosure shall be made as soon as
practicable following the filing of a petition and no later than:
(A) Thirty days after a petition alleging
jurisdiction has been filed.
(B) Three days before any review hearing,
except for information received or discovered less than three days prior to the
hearing.