68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1080
House Bill 2029
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Legislative Interim
Committee on Children and Families)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires Children's Services Division and court to give
preferential consideration in placement of child to relatives of
child if appropriate. Requires disclosure of information to
certain relatives if requested in certain court proceedings.
Allows grandparent to seek visitation of child after adoption.
A BILL FOR AN ACT
Relating to children; creating new provisions; and amending ORS
109.309, 109.332, 418.001, 419B.300, 419B.310, 419B.331,
419B.337 and 419B.349.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 and 3 of this Act are added to and
made a part of ORS 418.003 to 418.030. + }
SECTION 2. { + It shall be the policy of the Children's
Services Division that:
(1) It is important to preserve family ties and relationships
of children who have been placed in the legal custody of the
division.
(2) Relatives of a child in the legal custody of the division
generally have a special interest in the welfare of the child and
often have important information that should be considered in
planning for the child.
(3) Relatives who express an interest in a child have a right
to provide information about the child's background and to make
recommendations for the child's future. + }
SECTION 3. { + (1) Where a child is in the legal custody of
the Children's Services Division and the child is removed from
the physical custody of the child's parents, the division shall
give preferential consideration to a request by a relative of the
child for either temporary or permanent placement of the child
with the relative if the division determines it would be in the
best interest and welfare of the child. In determining whether
placement with a relative is appropriate, the division shall
consider the ability of the relative to provide a secure and
stable environment for the child. Factors to be considered in
that assessment include, but are not limited to:
(a) The good moral character of the relative;
(b) The ability of the relative to exercise proper and
effective care and control of the child;
(c) The ability of the relative to provide a home and
necessities of life for the child;
(d) Which relative is most likely to protect the child from the
child's parents;
(e) Which relative is most likely to facilitate visitation with
the child's other relatives and to facilitate reunification
efforts with the parents; and
(f) The best interests of the child.
(2) A physical disability is no bar to raising children and the
division's determination as to the ability of a relative with a
disability to exercise care and control should center upon
whether the relative's disability prevents the relative from
exercising care and control.
(3) The division shall ask the parents if there are any
relatives who should be considered for placement. This inquiry
shall not be construed, however, to guarantee that the minor will
be placed with any person so identified.
(4) If the division does not place the child with a relative
who has been considered for placement pursuant to this section,
the division shall state the reasons placement with that relative
was denied.
(5) In any case in which more than one appropriate relative
requests preferential consideration pursuant to this section, the
division, in determining which relative should receive
preferential consideration, shall consider the best interests of
the child, and which of the relatives is most likely to protect
the child from the child's parents, to facilitate visitation with
the child's other relatives, and to facilitate reunification
efforts with the parents. Consideration shall also be given to
attempting to place siblings and stepsiblings in the same home if
such a placement is found to be in their best interest.
(6) For purposes of this section, 'preferential consideration'
means that the relative seeking placement shall be the first
party to be considered. + }
SECTION 4. ORS 418.001 is amended to read:
418.001. As used in ORS 418.003 to 418.030 { + : + }
{ - , - }
{ + (1) + } 'Child' or 'juvenile' means an individual under
21 years of age.
{ + (2) 'Relative' means an adult who is a grandparent, aunt,
uncle or sibling who is related by blood, adoption or marriage to
the child. + }
SECTION 5. ORS 419B.310 is amended to read:
419B.310. (1) The hearing shall be held by the court without a
jury and may be continued from time to time. During the hearing
of a case filed pursuant to ORS 419B.100, the court, on its own
motion or upon the motion of a party, may take testimony from any
child appearing as a witness and may exclude the child's parents
and other persons if the court finds such action would be likely
to be in the best interests of the child. However, the court
shall not exclude the attorney for each party and the testimony
shall be reported.
(2) Where the court conducts any hearing, the court shall
inquire whether a child is an Indian child subject to the Indian
Child Welfare Act. If the court knows or has reason to know that
an Indian child is involved, the court shall enter an order
requiring the Children's Services Division to notify the Indian
child's tribe of the pending proceedings and of the tribe's right
to intervene.
(3) Stenographic notes or other report of the hearings shall be
taken only when required by the court.
(4) The facts alleged in the petition showing the child to be
within the jurisdiction of the court as provided in ORS 419B.100
(1), unless admitted, must be established by a preponderance of
competent evidence. { +
(5) A grandparent of the child may petition or file a motion
for intervention with the court for an order providing for
custody or placement of the child or visitation rights. The court
shall grant the order unless the court finds that it would not be
in the best interest and welfare of the child. + }
SECTION 6. ORS 419B.331 is amended to read:
419B.331. { + (1) + } Where a child has been found to be
within its jurisdiction, and when the court determines it would
be in the best interest and welfare of the child, the court may
place the child under protective supervision. The court may
direct that the child remain in the legal custody of the child's
parents or other person with whom the child is living, or the
court may direct that the child be placed in the legal custody of
some relative or some person maintaining a foster home approved
by the court, or in a child care center or a youth care center
authorized to accept the child. { + However, if a child is
removed from the physical custody of the child's parents, the
court shall give preferential consideration to a request by a
relative of the child for either temporary or permanent placement
of the child with the relative if the court determines it would
be in the best interest and welfare of the child.
(2) + } The court may specify particular requirements to be
observed during the protective supervision consistent with
recognized juvenile court practice, including but not limited to
restrictions on visitation by the child's parents, restrictions
on the child's associates, occupation and activities,
restrictions on and requirements to be observed by the person
having the child's legal custody, and requirements for visitation
by and consultation with a juvenile counselor or other suitable
counselor.
SECTION 7. ORS 419B.337 is amended to read:
419B.337. (1) Where a child has been found to be within its
jurisdiction, and when the court determines it would be in the
best interest and for the welfare of the child, the court may
place the child in the legal custody of the Children's Services
Division for care, placement and supervision. When the court
enters an order removing a child from the child's home or an
order continuing care, the court shall make a written finding as
to whether:
(a) Removal of the child from the child's home or continuation
of care is in the best interest and for the welfare of the child;
and
(b) Reasonable efforts, considering the circumstances of the
child and parent, have been made to prevent or eliminate the need
for removal of the child from the home or to make it possible to
reunify the family.
{ + (2) In addition to the written finding required by
subsection (1) of this section, the court shall also make a
written finding if the court does not place a child with a
relative who has been considered for placement. The court shall
state the reasons placement with that relative was denied. + }
{ - (2) - } { + (3) + } The court may specify the
particular type of care, supervision or services to be provided
by the Children's Services Division to children placed in the
division's custody and to the parents or guardians of such
children, but the actual planning and provision of such care,
supervision or services shall be the responsibility of the
Children's Services Division. The division may place the child in
a child care center authorized to accept the child.
{ - (3) - } { + (4) + } Uniform commitment blanks, in a
form approved by the Assistant Director for Children's Services,
shall be used by all courts for placing children in the legal
custody of the Children's Services Division.
{ - (4) - } { + (5) + } If the child has been placed in the
custody of the Children's Services Division, the court shall make
no commitment directly to any residential facility, but shall
cause the child to be delivered into the custody of the
Children's Services Division at the time and place fixed by rules
of the division. No child so committed shall be placed in a
Department of Corrections institution.
SECTION 8. ORS 419B.300 is amended to read:
419B.300. (1) In all proceedings brought under ORS 419B.100 or
419B.500, each party, including the state, shall disclose to each
other party { + and, if requested, to the grandparent, aunt,
uncle or sibling of the child, if the relative is being
considered for custody, placement or visitation of the child, + }
the following information and material within the possession or
under the control of the party:
(a) The names and addresses of all persons the party intends to
call as witnesses at any stage of the hearing, together with any
relevant written or recorded statements or memoranda of any oral
statements of such persons;
(b) Any written or recorded statements or memoranda of any oral
statements made either by the parent or by the child to any other
party or agent for any other party;
(c) Any reports or statements of experts made in connection
with the particular case, including the results of any physical
or mental examinations and of comparisons or experiments that the
party intends to offer in evidence at the hearing; and
(d) Any books, papers, documents or photographs that the party
intends to offer in evidence at the hearing, or that were
obtained from or belong to any other party.
(2) Disclosure shall be made as soon as practicable following
the filing of a petition. The court may supervise the exercise of
discovery to the extent necessary to insure that it proceeds
properly and expeditiously.
(3) The obligation to disclose is an ongoing obligation and if
a party finds, either before or during the hearing, additional
material or information that is subject to disclosure, the
information or material shall be promptly disclosed.
(4) The following material and information need not be
disclosed:
(a) Attorney work product, legal research, records,
correspondence, reports or memoranda to the extent they contain
the opinions, theories or conclusions of the attorneys or their
agents and peace officers or their agents; and
(b) Transcripts, recordings or memoranda of testimony of
witnesses before the grand jury, except transcripts or recordings
of testimony of a party to the current juvenile court proceeding.
(5) When some parts of certain material are subject to
disclosure and other parts are not, as much of the material as is
subject to disclosure shall be disclosed.
(6) Upon being notified of any breach of a duty to disclose
material or information, the court may order the violating party
to permit inspection of the material, or grant a continuance, or
refuse to permit the witness to testify, or refuse to receive in
evidence the material that was not disclosed, or enter such other
order as the court considers appropriate.
(7) Upon a showing of good cause, the court may at any time
order that specified disclosure be denied, restricted or deferred
or make such other order as is appropriate.
(8) Upon request of a party, the court may permit a showing of
good cause for denial or regulation of disclosure, or portion of
such showing, to be made in camera. A record shall be made of the
proceeding.
(9) If the court enters an order granting relief following an
in camera showing, the entire record of the showing shall be
sealed and preserved in the records of the court, to be made
available to the appellate court in the event of an appeal. The
trial court, in its discretion, may, after disposition, unseal
the record.
SECTION 9. ORS 109.309 is amended to read:
109.309. (1) Any person may petition the circuit court for
leave to adopt another person and, if desired, for a change of
the other person's name.
(2)(a) Except as provided in paragraph (b) of this subsection,
when the petition is for the adoption of a minor child, the
adoption shall be governed by the Uniform Child Custody
Jurisdiction Act, ORS 109.700 to 109.930.
(b) The joinder provision of the Uniform Child Custody
Jurisdiction Act, ORS 109.800, does not apply.
(3) The petition to adopt a person 18 years of age or older may
be filed in the county where the petitioner, the person to be
adopted or the person who consents to the adoption resides, if
any of them is a resident of this state.
(4) In a petition to adopt a minor child, venue shall lie in
the Oregon county with which the child has the most significant
connection or in the Oregon county in which the licensed adoption
agency is located.
(5)(a) When the petition is for the adoption of a minor child,
the petitioner shall also file at the time of filing the
petition:
(A) A written statement containing the full names and permanent
addresses of:
(i) The petitioners;
(ii) All persons whose consent to the adoption is required
under ORS 109.312 when such names are either known or may be
readily ascertained by the petitioners; and
(iii) The Oregon licensed adoption agency, if any, or the
relative or person that privately placed the child for adoption.
(B) The documents demonstrating consent under ORS 109.312 to
the adoption of the minor child.
(C) Written evidence documenting a current home study that has
been approved by either the Children's Services Division or an
Oregon licensed adoption agency submitted for the purpose of
demonstrating that the petitioners meet the minimum standards for
adoptive homes as set forth in the division's administrative
rules.
(b) A stepparent or relative who qualifies under the Children's
Services Division administrative rules for a waiver of the
division's home study requirements described in paragraph (a)(C)
of this subsection may file the request for waiver along with the
petition for adoption.
(6) The petitioner shall cause copies of the documents required
to be filed with the court under subsection (5) of this section
to be served upon the Assistant Director for Children's Services,
by either registered or certified mail with return receipt or
personal service, within 30 days after the documents have been
filed with the court. { - In the case of a stepparent
adoption, - } The petition shall also be served on all persons
whose consent to the adoption is required under ORS 109.312 and
on the child's grandparents, if the names and addresses are known
or may be readily ascertained by the petitioners. The petition
shall be served by registered mail, by certified mail with return
receipt or personally. Service on the child's grandparents may be
waived by the court for good cause. The court shall not rule upon
the petition until at least 60 days after the date that the
documents were served upon the assistant director. However, the
division may waive the 60-day period.
(7)(a) Within 60 days of the service on the assistant director,
the Children's Services Division shall investigate and file for
the consideration of the judge before whom the petition for
adoption is pending a placement report containing information
regarding the status of the child and evidence concerning the
suitability of the proposed adoption. The division may designate
an Oregon licensed adoption agency to investigate and report to
the court. However, the division may waive the placement report
requirement.
(b) Upon receipt of a written request by the petitioner's
attorney, the division shall furnish to that attorney copies of
any information that the division has filed with the court.
(c) The division may charge the petitioner a fee for
investigating a proposed non-agency adoption and preparing the
home study report described in subsection (5)(a)(C) of this
section and the placement report described in paragraph (a) of
this subsection. The petitioner shall report the fee amount to
the court. The court granting the adoption shall make a finding
as to whether the fee is necessary and reasonable. Any fee
charged shall not exceed reasonable costs for investigation, home
study and placement report preparation. The division shall
prescribe by rule the procedure for computing the investigation,
home study and placement report preparation fee. The rules shall
provide a waiver of either part or all of the fee based upon the
petitioner's ability to pay.
(8) The amounts of any fees collected under subsection (7) of
this section are continuously appropriated to the Children's
Services Division for use in preparing the home study and
placement reports required under subsections (5)(a)(C) and (7)(a)
of this section.
(9)(a) Except as provided in paragraph (b) of this subsection,
a court shall not grant a decree for the adoption of a minor
child unless the petitioners have filed with the court the
documents described in subsections (5)(a)(A), (B) and (C) and
(7)(a) of this section.
(b) A person shall not be required to file a home study or a
placement report with the court when the Children's Services
Division has granted the person a waiver under division rules.
(10) The adoption shall comply with the Indian Child Welfare
Act (25 U.S.C. �1901 et seq.), if applicable. Every adoption
petition involving the Indian Child Welfare Act shall include the
following:
(a) A statement of the efforts to notify the appropriate Indian
tribe or tribes of the adoption; and
(b) A statement of the efforts to comply with the placement
preferences of the Indian Child Welfare Act (25 U.S.C. �1901 et
seq.) or the placement preferences of the appropriate Indian
tribe.
(11) As used in this section and ORS 109.332, 'grandparent '
includes a grandparent who has established custody, visitation or
other rights under ORS 109.119 or visitation rights under ORS
109.121.
SECTION 10. ORS 109.332 is amended to read:
109.332. (1) When a petition has been filed under ORS 109.309
concerning the adoption { - by a stepparent - } of a child, a
grandparent served with a copy of the petition under ORS 109.309
(6) may file a motion with the court asking the court to award a
grandparent the right to regular visitation with the child after
the adoption. A motion under this subsection must be filed no
later than 30 days after service of the petition.
(2) The court shall award a grandparent visitation rights only
if the court finds by clear and convincing evidence that:
(a) Establishing visitation rights is in the best interests of
the child;
(b) A substantial relationship existed prior to the adoption
between the child and the grandparent seeking visitation rights;
and
(c) Establishing visitation rights does not substantially
interfere with the relationship between the child and the
adoptive family.
(3) In a stepparent adoption, a grandparent whose visitation
rights were terminated as a result of the adoption prior to
August 23, 1993, may petition to have the visitation rights
restored. The petition must be filed within one year after August
23, 1993. The court shall restore the visitation rights, unless
the court finds that restoration of visitation rights is not in
the best interests of the child.
SECTION 11. ORS 419B.349 is amended to read:
419B.349. Commitment of a child to the Children's Services
Division does not terminate the court's continuing jurisdiction
to protect the rights of the child or the child's parents or
guardians. Notwithstanding ORS 419B.337 { - (3) - }
{ + (4) + }, if upon review of a placement of a child made by
the Children's Services Division, the court determines that the
placement is so inappropriate as to violate the rights of the
child or the child's parents or guardians the court may direct
the Children's Services Division to place the child in a specific
type of residential placement, but the actual planning and
placement of the child shall be the responsibility of the
Children's Services Division. Nothing in this section affects
any contractual right of a private agency to refuse or terminate
a placement.
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