ORS § 109.330

Current through 2024 Regular Session legislation effective March 27, 2024

Section 109.330 - Notice when parent does not consent; notice when child has no living parent and no guardian or next of kin qualified to appear

(1)

(a) In the cases provided for in ORS 109.302, 109.322, 109.323 and 109.324, when a parent does not consent to the adoption of the child, the petitioner shall:

(A) Conduct the inquiry described in ORS 419B.636 (2) to determine whether the petitioner has reason to know that the child is an Indian child; and

(B) Serve the parent with a summons and a true copy of a motion and order to show cause why the proposed adoption should not be ordered without the parent's consent.

(b) Except as provided in subsection (3) of this section, service of the summons and the motion and order to show cause must be made in the manner provided in ORCP 7 D and E. Service must be proved as required in ORCP 7 F. The summons and the motion and order to show cause need not contain the names of the adoptive parents.

(c) If the petitioner has reason to know that the child is an Indian child, in addition to the service required under paragraph (b) of this subsection, the petitioner shall serve by registered or certified mail, return receipt requested, copies of the motion and order to show cause, together with the notice of proceeding in the form required under ORS 419B.639 (3)(c), on:

(A) Each tribe of which the child may be a member or in which the Indian child may be eligible for membership;

(B) The child's parents;

(C) The child's Indian custodian, if applicable; and

(D) The appropriate United States Bureau of Indian Affairs Regional Director listed in 25 C.F.R. 23.11(b), if the identity or location of the child's parents, Indian custodian or tribe cannot be ascertained.

(d) The petitioner shall file a declaration of compliance under penalty of perjury, made in the manner described by ORCP 1 E, that includes:

(A) A statement and documentation, as described by the Department of Human Services by rule, of the efforts described in ORS 419B.636 (2) that the petitioner made to determine whether there is reason to know that the child is an Indian child; and

(B) If the petitioner has reason to know that the child is an Indian child:

(i) A statement describing the efforts the petitioner made, as required under ORS 109.302 (2)(c), to prevent the break up of the family or to reunite the family; and

(ii) A copy of each notice of proceeding the petitioner served as required under paragraph (c) of this subsection, together with any return receipts or other proof of service.

(2) A summons under this section must contain:

(a) A statement that an adoption petition has been filed and that, if the parent fails to file a written answer to the motion and order to show cause within the time provided, the court, without further notice and in the parent's absence, may take any action that is authorized by law, including but not limited to entering a judgment of adoption of the child if the court determines, on the date the answer is required or on a future date, that:

(A) Consent of the parent is not required;

(B) The adoption is in the best interests of the child; and

(C) If the child is an Indian child, the nonconsenting parent's continued custody of the Indian child is likely to result in serious emotional or physical damage to the child.

(b) A statement that:

(A) The parent must file with the court a written answer to the motion and order to show cause within 30 days after the date on which the parent is served with the summons or, if service is made by publication or posting under ORCP 7 D(6), within 30 days from the date of last publication or posting.

(B) In the answer, the parent must inform the court and the petitioner of the parent's telephone number or contact telephone number and the parent's current residence, mailing or contact address in the same state as the parent's home. The answer may be in substantially the following form:

______________________________________________________________________________

IN THE CIRCUIT COURT OF

THE STATE OF OREGON

FOR THE COUNTY OF _________

_________,)

Petitioner,) NO._____

)

) ANSWER

and)

)

_________,)

Respondent.)

[ ] I consent to the proposed adoption.

[ ] I do not consent to the proposed adoption. The court should not order the proposed adoption without my consent for the following reasons:

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

_________________________

__________________

Signature

DATE:__________________

ADDRESS OR CONTACT ADDRESS:

_____________________

_____________________

TELEPHONE OR CONTACT TELEPHONE:

_____________________

______________________________________________________________________________

(c) A notice that, if the parent answers the motion and order to show cause, the court:

(A) Will schedule a hearing to address the motion and order to show cause and, if appropriate, the adoption petition;

(B) Will order the parent to appear personally; and

(C) May schedule other hearings related to the petition and may order the parent to appear personally.

(d) A notice that the parent has the right to be represented by an attorney. The notice must be in substantially the following form:

______________________________________________________________________________

You have a right to be represented by an attorney. If you wish to be represented by an attorney, please retain one as soon as possible to represent you in this proceeding. If you meet the state's financial guidelines, you are entitled to have an attorney appointed for you at state expense. To request appointment of an attorney to represent you at state expense, you must contact the circuit court immediately. Phone ______ for further information.

______________________________________________________________________________

(e) A statement that the parent has the responsibility to maintain contact with the parent's attorney and to keep the attorney advised of the parent's whereabouts.

(3) A parent who is served with a summons and a motion and order to show cause under this section shall file with the court a written answer to the motion and order to show cause within 30 days after the date on which the parent is served with the summons or, if service is made by publication or posting under ORCP 7 D(6), within 30 days from the date of last publication or posting. In the answer, the parent shall inform the court and the petitioner of the parent's telephone number or contact telephone number and current address, as defined in ORS 25.011. The answer may be in substantially the form described in subsection (2) of this section.

(4) If the parent requests the assistance of appointed counsel and the court determines that the parent is financially eligible, the court shall appoint an attorney to represent the parent at state expense. Appointment of counsel under this subsection is subject to ORS 135.055, 151.216 and 151.219. The court may not substitute one appointed counsel for another except pursuant to the policies, procedures, standards and guidelines adopted under ORS 151.216.

(5)

(a) Upon receiving the petitioner's declaration of compliance under subsection (1)(d) of this section, the court shall order that the motion and order to show cause may proceed if the court finds that the petitioner satisfied the inquiry requirements under ORS 419B.636 (2) and, if applicable, the notice requirements under ORS 419B.639 (2).

(b) If the court finds that the petitioner failed to satisfy the inquiry or, if applicable, notice requirements under ORS 419B.636 (2) and 419B.639 (2), or if the documentation is insufficient for the court to make those findings, the court shall direct the petitioner to cure the inquiry or notice deficiency and file an amended declaration of compliance. The court shall order the petitioner to appear and show cause why the court should not deny the motion and order to show cause if the petitioner fails to file the amended declaration of compliance within a reasonable amount of time.

(c) If the court finds, subject to the procedures under ORS 419B.636 (4), that there is reason to know the child is an Indian child, the court shall offer to order mediation through the Department of Human Services, or if there is mutual party agreement to private mediation and to the party assumption of costs, through other mediation services, between the Indian child's parents, the Indian child's tribe and the proposed adoptive placement.

(6)

(a) If the parent files an answer as required under subsection (3) of this section, the court, by oral order made on the record or by written order provided to the parent in person or mailed to the parent at the address provided by the parent, shall:

(A) Inform the parent of the time, place and purpose of the next hearing or hearings related to the motion and order to show cause or the adoption petition;

(B) Require the parent to appear personally at the next hearing or hearings related to the motion and order to show cause or the adoption petition; and

(C) Inform the parent that, if the parent fails to appear as ordered for any hearing related to the motion and order to show cause or the adoption petition, the court, without further notice and in the parent's absence, may take any action that is authorized by law, including but not limited to entering a judgment of adoption of the child on the date specified in the order or on a future date, without the consent of the parent.

(b) If the parent's answer indicates the parent's consent to the adoption, the court may not accept the consent unless the consent meets the requirements under ORS 109.301 or, if the child is an Indian child, ORS 109.302.

(7) If a parent fails to file a written answer as required in subsection (3) of this section or fails to appear for a hearing related to the motion and order to show cause or the petition as directed by court order under this section, the court, without further notice to the parent and in the parent's absence, may take any action that is authorized by law, including but not limited to entering a judgment of adoption of the child without the consent of the parent if the court finds:

(a) On the date the answer is required or on a future date, the action to be in the child's best interests; and

(b) That the petitioner complied with the inquiry requirements under ORS 419B.636 (2) to determine whether there is reason to know that the child is an Indian child.

(8)

(a) Notwithstanding subsection (7) of this section or ORS 109.322, 109.323 or 109.324, the court may not enter a judgment of adoption of an Indian child without the consent of the parent unless:

(A) The court has offered the parties the opportunity to participate in mediation as required under subsection (5)(c) of this section;

(B) If requested by the tribe, an agreement is in place that requires the proposed adoptive placement to maintain connection between the Indian child and the Indian child's tribe;

(C) The court determines that the petitioner complied with the notice requirements under ORS 419B.639 (2);

(D) The court determines that evidence, including the testimony of one or more qualified expert witnesses under ORS 419B.642, establishes beyond a reasonable doubt that the continued custody of the Indian child by the nonconsenting parent is likely to result in serious emotional or physical damage to the child and that the petitioner's active efforts under ORS 419B.645 to reunite the Indian family did not eliminate the necessity for termination of the nonconsenting parent's parental rights based on serious emotional or physical damage to the Indian child; and

(E) The court finds that the adoptive placement complies with the placement preferences under ORS 419B.654 (2) or, if not, the court finds, upon the petitioner's motion under ORS 419B.654 (3), that good cause exists for placement contrary to the placement preferences in ORS 419B.654 (2).

(b) The evidence under paragraph (a)(E) of this subsection must show a causal relationship between the particular conditions in the Indian child's home and the likelihood that the nonconsenting parent's continued custody of the Indian child will result in serious emotional or physical damage to the Indian child who is the subject of the adoption proceeding. Evidence that shows the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse or nonconforming social behavior does not, by itself, establish a causal relationship as required by this paragraph.

(9) If the child has no living parent and no guardian or next of kin in this state qualified to appear in behalf of the child, the court may order such notice, if any, to be given as the court deems necessary or proper.

(10) If the child is an Indian child, the child's tribe or Indian custodian may intervene at any time as a matter of right.

ORS 109.330

Amended by 2021 Ch. 398, § 25, eff. 9/25/2021, op. 1/2/2022.

Amended by 1957 c.710 §11; 1967 c.385 §2; 1969 c.591 §288; 1975 c.640 §17; 1979 c.284 §101; 2005 c. 369, § 1