Bill Text: OR SB304 | 2013 | Regular Session | Introduced
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
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. + } ----------