Bill Text: OR SB304 | 2013 | Regular Session | Introduced

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Bill Title: Relating to mandatory placement of children in dependency proceedings.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2013-07-08 - In committee upon adjournment. [SB304 Detail]

Download: Oregon-2013-SB304-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 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 2629

                         Senate Bill 304

Sponsored by Senator JOHNSON (Presession filed.)

                             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.

  Directs that Department of Human Services and court place child
or ward with available nonrelated foster parent if home study
conducted on nonrelated foster parent finds no evidence of
unsuitability. Prohibits department from making race
consideration in making nonrelated foster parent placement
determination for child or ward in department's custody. Makes
nonrelated foster parent being considered as placement option
party to juvenile dependency proceeding.

                        A BILL FOR AN ACT
Relating to mandatory placement of children in dependency
  proceedings; creating new provisions; and amending ORS
  419B.116, 419B.185, 419B.192, 419B.337, 419B.349, 419B.449 and
  419B.875.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 419B.192 is amended to read:
  419B.192. (1) { + (a) + } If the court finds that a child or
ward is in need of placement or continuation in substitute
care { +  and a nonrelated foster parent of the child or ward who
has a caregiver relationship, as defined in ORS 419B.116, with
the child or ward is available as a placement option for the
child or ward, the child or ward shall be placed with the
nonrelated foster parent if the Department of Human Services
conducts a home study, or has previously conducted a home study
of the nonrelated foster parent within the preceding 12 months,
and the home study does not find any evidence of unsuitability of
the nonrelated foster parent as a placement option.
  (b) If the department determines that a nonrelated foster
parent is unsuitable as a placement option under this subsection,
the department shall provide the court with a written copy or
report of the home study. If the court determines that the home
study does not find any evidence of unsuitability of the
nonrelated foster parent as a placement option for the child or
ward, the child or ward shall be placed with the nonrelated
foster parent.
  (c) The department may not make the race of the child or ward
or the race of the nonrelated foster parent being considered as a
placement option a consideration under this subsection.
  (d) A nonrelated foster parent being considered as a placement
option under this subsection is not required to file a motion for
intervention under ORS 419B.116 in the juvenile dependency
proceeding involving the child or ward and is considered a party
to the proceeding under ORS 419B.875.
  (2) If there is no nonrelated foster parent who qualifies under
subsection (1) of this section as a placement option for the
child or ward + }, there shall be a preference given to placement
of the child or ward with relatives and persons who have a
caregiver relationship { + , as defined in ORS 419B.116, + } 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) - }  { +  (3) + } 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) - }  { +  (4) + } In attempting to place the child or
ward pursuant to subsections   { - (1) and - }  (2)  { + and
(3) + } 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  { +  subsections
(2) and (3) of + } 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) - }  { +  (5) + } 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) - }  { +  (2) + } 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) - }  { +  (6) + } Notwithstanding subsections (1) to
 { - (3) - }  { +  (4) + } of this section, in cases where the
Indian Child Welfare Act applies, the placement preferences of
the Indian Child Welfare Act shall be followed.
   { +  (7) For purposes of this section, 'home study' means an
investigation conducted by the department of the nonrelated
foster parent who is under consideration as a placement option
that, at a minimum, includes:
  (a) A criminal records check, conducted under ORS 181.534, of
the nonrelated foster parent and any person residing in the
nonrelated foster parent's home;

  (b) A determination of whether there is substance abuse,
including but not limited to alcohol or drug dependence, by the
nonrelated foster parent or by a person residing in the
nonrelated foster parent's home;
  (c) A determination of whether the nonrelated foster parent or
a person residing in the nonrelated foster parent's home has a
physical or mental impairment or disability that would make the
nonrelated foster parent an unsuitable placement option;
  (d) The suitability of the environment of the nonrelated foster
parent's home; and
  (e) The financial status and stability of the nonrelated foster
parent. + }
  SECTION 2. ORS 419B.116, as amended by section 2, chapter 86,
Oregon Laws 2012, is amended to read:
  419B.116. (1)  { - (a) - }  As used in this section, 'caregiver
relationship' means a relationship between a person and a child
or ward:
    { - (A) - }  { +  (a) + } That has existed:
    { - (i) - }  { +  (A) + } For the 12 months immediately
preceding the initiation of the dependency proceeding;
    { - (ii) - }  { +  (B) + } For at least six months during the
dependency proceeding; or
    { - (iii) - }  { +  (C) + } For half of the child or ward's
life if the child or ward is less than six months of age;
    { - (B) - }  { +  (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) - }  { +  (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) - }  { +  (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 (11) 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 or a person
who intends to file a motion for appointment as a community
guardian under section 1, chapter 86, Oregon Laws 2012, may seek
rights of limited participation by filing a written motion for
limited participation in a juvenile court proceeding. Except as
provided in subsection (9) of this section, 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) The requirements of subsections (7)(c) and (8)(c)(C) of
this section do not apply to a motion or court order seeking or
granting limited participation when the right of limited
participation sought and granted would be for the purpose of
establishing a community guardianship under section 1, chapter
86, Oregon Laws 2012.
  (10) 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.
  (11)(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.
  (12) The court may modify or set aside any order granting
intervention or rights of limited participation as provided in
ORS 419B.923.
  SECTION 3. ORS 419B.185 is amended to read:
  419B.185. (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 { + , if required under
ORS 419B.192, + } 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 { + , if required, + } the department made
pursuant to ORS 419B.192; and
  (c) Why protective custody is in the best interests of the
child or ward.
  SECTION 4. ORS 419B.337 is amended to read:
  419B.337. (1) When the court determines it would be in the best
interest and for the welfare of a ward, the court may place the
ward in the legal custody of the Department of Human Services for
care, placement and supervision. When the court enters an order
removing a ward from the ward's home or an order continuing care,
the court shall make a written finding as to whether:
  (a) Removal of the ward from the ward's home or continuation of
care is in the best interest and for the welfare of the ward;
  (b) Reasonable efforts, considering the circumstances of the
ward and parent, have been made to prevent or eliminate the need
for removal of the ward from the home or to make it possible for
the ward to safely return home. In making this finding, the court
shall consider the ward's health and safety the paramount
concerns; and
  (c) Diligent efforts { + , if required, + } have been made to
place the ward pursuant to ORS 419B.192.
  (2) The court may specify the particular type of care,
supervision or services to be provided by the Department of Human
Services to wards placed in the department's custody and to the
parents or guardians of the wards, but the actual planning and
provision of such care, supervision or services is the
responsibility of the department. The department may place the
ward in a child care center authorized to accept the ward.
  (3) The court may make an order regarding visitation by the
ward's parents or siblings. The Department of Human Services is
responsible for developing and implementing a visitation plan
consistent with the court's order.
  (4) Uniform commitment blanks, in a form approved by the
Director of Human Services, shall be used by all courts for
placing wards in the legal custody of the Department of Human
Services.
  (5) If the ward has been placed in the custody of the
Department of Human Services, the court shall make no commitment
directly to any residential facility, but shall cause the ward to
be delivered into the custody of the department at the time and
place fixed by rules of the department. A ward so committed may
not be placed in a Department of Corrections institution.
  (6) Commitment of a ward to the Department of Human Services
continues until dismissed by the court or until the ward becomes
21 years of age.
  (7) A court may dismiss commitment of a ward to the Department
of Human Services if:
  (a)(A) Dismissal is appropriate because the ward has been
safely reunited with a parent or because a safe alternative to
reunification has been implemented for the ward; and
  (B) The ward is at least 14 years of age but less than 21 years
of age and the court finds that:
  (i) The department has provided case planning pursuant to ORS
419B.343 that addresses the ward's needs and goals for a
successful transition to independent living, including needs and
goals relating to housing, physical and mental health, education,
employment, community connections and supportive relationships;
  (ii) The department has provided appropriate services pursuant
to the case plan;
  (iii) The department has involved the ward in the development
of the case plan and in the provision of appropriate services;
and
  (iv) The ward has safe and stable housing and is unlikely to
become homeless as a result of dismissal of commitment of the
ward to the department; or

  (b) The ward has been committed to the custody of the Oregon
Youth Authority.
  SECTION 5. ORS 419B.349 is amended to read:
  419B.349. Commitment of a child or ward to the Department of
Human Services does not terminate the court's continuing
jurisdiction to protect the rights of the child or ward or the
child or ward's parents or guardians. Notwithstanding ORS
419B.337 (5), if upon review of a placement of a child or ward
made by the department { + , other than a placement made pursuant
to ORS 419B.192 (1), + } the court determines that the placement
is not in the best interest of the child or ward, the court may
direct the department to place the child or ward in the care of
the child or ward's parents, in foster care with a foster care
provider who is a relative, in foster care with another foster
care provider, in residential care, in group care or in some
other specific type of residential placement, but unless
otherwise required by law, the court may not direct a specific
placement. The actual planning and placement of the child or ward
is the responsibility of the department. Nothing in this section
affects any contractual right of a private agency to refuse or
terminate a placement.
  SECTION 6. ORS 419B.449 is amended to read:
  419B.449. (1) Upon receiving any report required by ORS
419B.440, the court may hold a hearing to review the child or
ward's condition and circumstances and to determine if the court
should continue jurisdiction and wardship or order modifications
in the care, placement and supervision of the child or ward. The
court shall hold a hearing:
  (a) In all cases under ORS 419B.440 (2)(b) when the parents'
rights have been terminated;
  (b) If requested by the child or ward, the attorney for the
child or ward, if any, the parents or the public or private
agency having guardianship or legal custody of the child or ward
within 30 days of receipt of the notice provided in ORS 419B.452;
  (c) Not later than six months after receipt of a report made
under ORS 419B.440 (1) on a ward who is in the legal custody of
the Department of Human Services pursuant to ORS 419B.337 but who
is placed in the physical custody of a parent or a person who was
appointed the ward's legal guardian prior to placement of the
ward in the legal custody of the department; or
  (d) Within 30 days after receipt of a report made under ORS
419B.440 (2)(c).
  (2) The court shall conduct a hearing provided in subsection
(1) of this section in the manner provided in ORS 419B.310,
except that the court may receive testimony and reports as
provided in ORS 419B.325. At the conclusion of the hearing, the
court shall enter findings of fact.
  (3) If the child or ward is in substitute care and the decision
of the court is to continue the child or ward in substitute care,
the findings of the court shall specifically state:
  (a)(A) Why continued care is necessary as opposed to returning
the child or ward home or taking prompt action to secure another
permanent placement; and
  (B) The expected timetable for return or other permanent
placement.
  (b) Whether the agency having guardianship or legal custody of
the child or ward has made diligent efforts { + , if
required, + } to place the child or ward pursuant to ORS
419B.192.
  (c) The number of placements made, schools attended,
face-to-face contacts with the assigned case worker and visits
had with parents or siblings since the child or ward has been in
the guardianship or legal custody of the agency and whether the
frequency of each of these is in the best interests of the child
or ward.

  (d) For a child or ward 14 years of age or older, whether the
child or ward is progressing adequately toward graduation from
high school and, if not, the efforts that have been made by the
agency having custody or guardianship to assist the child or ward
to graduate.
  (4) If the ward is in the legal custody of the department but
has been placed in the physical custody of the parent or a person
who was appointed the ward's legal guardian prior to placement of
the ward in the legal custody of the department, and the decision
is to continue the ward in the legal custody of the department
and the physical custody of the parent or guardian, the findings
of the court shall specifically state:
  (a) Why it is necessary and in the best interests of the ward
to continue the ward in the legal custody of the department; and
  (b) The expected timetable for dismissal of the department's
legal custody of the ward and termination of the wardship.
  (5) In making the findings under subsection (2) of this
section, the court shall consider the efforts made to develop the
concurrent case plan, including, but not limited to,
identification of appropriate permanent placement options for the
child or ward both inside and outside this state and, if adoption
is the concurrent case plan, identification and selection of a
suitable adoptive placement for the child or ward.
  (6) In addition to findings of fact required by subsection (2)
of this section, the court may order the Department of Human
Services to consider additional information in developing the
case plan or concurrent case plan.
  (7) Any final decision of the court made pursuant to the
hearing provided in subsection (1) of this section is appealable
under ORS 419A.200.
  SECTION 7. ORS 419B.875 is amended to read:
  419B.875. (1)(a) Parties to proceedings in the juvenile court
under ORS 419B.100 and 419B.500 are:
  (A) The child or ward;
  (B) The parents or guardian of the child or ward;
  (C) A putative father of the child or ward who has demonstrated
a direct and significant commitment to the child or ward by
assuming, or attempting to assume, responsibilities normally
associated with parenthood, including but not limited to:
  (i) Residing with the child or ward;
  (ii) Contributing to the financial support of the child or
ward; or
  (iii) Establishing psychological ties with the child or ward;
  (D) The state;
  (E) The juvenile department;
  (F) A court appointed special advocate, if appointed;
  (G) The Department of Human Services or other child-caring
agency if the agency has temporary custody of the child or ward;
  { - and - }
  (H) The tribe in cases subject to the Indian Child Welfare Act
if the tribe has intervened pursuant to the Indian Child Welfare
Act { + ; and
  (I) A nonrelated foster parent who is under consideration as a
placement option for a child or ward under ORS 419B.192 (1) + }.
  (b) An intervenor who is granted intervention under ORS
419B.116 is a party to a proceeding under ORS 419B.100. An
intervenor under this paragraph is not a party to a proceeding
under ORS 419B.500.
  (2) The rights of the parties include, but are not limited to:
  (a) The right to notice of the proceeding and copies of the
petitions, answers, motions and other papers;
  (b) The right to appear with counsel and, except for
intervenors under subsection (1)(b) of this section, to have
counsel appointed as otherwise provided by law;
  (c) The right to call witnesses, cross-examine witnesses and
participate in hearings;
  (d) The right of appeal; and
  (e) The right to request a hearing.
  (3) A putative father who satisfies the criteria set out in
subsection (1)(a)(C) of this section shall be treated as a
parent, as that term is used in this chapter and ORS chapters
419A and 419C, until the court confirms his paternity or finds
that he is not the legal or biological father of the child or
ward.
  (4) If no appeal from the judgment or order is pending, a
putative father whom a court of competent jurisdiction has found
not to be the child or ward's legal or biological father or who
has filed a petition for filiation that was dismissed is not a
party under subsection (1) of this section.
  (5)(a) A person granted rights of limited participation under
ORS 419B.116 is not a party to a proceeding under ORS 419B.100 or
419B.500 but has only those rights specified in the order
granting rights of limited participation.
  (b) Persons moving for or granted rights of limited
participation are not entitled to appointed counsel but may
appear with retained counsel.
  (6) If a foster parent, preadoptive parent or relative is
currently providing care for a child or ward, the Department of
Human Services shall give the foster parent, preadoptive parent
or relative notice of a proceeding concerning the child or ward.
A foster parent, preadoptive parent or relative providing care
for a child or ward has the right to be heard at the proceeding.
Except when allowed to intervene, the foster parent, preadoptive
parent or relative providing care for the child or ward is not
considered a party to the juvenile court proceeding solely
because of notice and the right to be heard at the proceeding.
  (7) When a legal grandparent of a child or ward requests in
writing and provides a mailing address, the Department of Human
Services shall give the legal grandparent notice of a hearing
concerning the child or ward and the court shall give the legal
grandparent an opportunity to be heard. Except when allowed to
intervene, a legal grandparent is not considered a party to the
juvenile court proceeding solely because of notice and an
opportunity to be heard.
  (8) Interpreters for parties and persons granted rights of
limited participation shall be appointed in the manner specified
by ORS 45.275 and 45.285.
  SECTION 8.  { + The amendments to ORS 419B.116, 419B.185,
419B.192, 419B.337, 419B.349, 419B.449 and 419B.875 by sections 1
to 7 of this 2013 Act apply to placements made in dependency
proceedings on or after the effective date of this 2013 Act. + }
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