Chapter 419B —
Juvenile Code: Dependency
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;