ORS 419B.185
Evidentiary hearing
(1)
When a child or ward is taken, or is about to be taken, into protective custody pursuant to ORS 419B.150 (When protective custody authorized), 419B.152 (Protective custody of runaway child), 419B.160 (Prohibition on detention), 419B.165 (Release of child taken into custody), 419B.168 (Procedure when child is not released) or 419B.171 (Report required when child is taken into protective custody) and placed in 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 (Speedy hearing required), 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.(2)
When the court conducts a hearing described in subsection (1) of this section, unless the court has previously found that the child is an Indian child, before the court may enter an order taking a child or ward into protective custody the court shall inquire and make a finding, subject to the procedures under ORS 419B.636 (Inquiry to determine whether child is Indian child) (4), regarding whether there is reason to know that the child is an Indian child.(3)
Intentionally left blank —Ed.(a)
At a hearing described in subsection (1) of this section, the court shall make written findings as to whether the Department of Human Services has made reasonable efforts or, if the child is an Indian child, 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 child or ward is an Indian child, 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 child or ward is an Indian child, 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:(A)
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; and(B)
If the child or ward is an Indian child, why the Indian child’s removal or continuation in care is necessary to prevent imminent physical damage or harm to the Indian child.(e)
When the court determines that a child or ward shall be removed from the home or continued in care, the court shall make written findings whether the department made diligent efforts pursuant to ORS 419B.192 (Placement of child or ward). The court shall include in its written findings a brief description of the efforts made by the department.(f)
The court may receive testimony, reports and other evidence without regard to whether the evidence is admissible under ORS 40.010 (Rule 100. Short title) to 40.210 (Rule 412. Sex offense cases) and 40.310 (Rule 601. General rule of competency) to 40.585 (Rule 1008. Functions of court and jury) 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 (Rule 401. Definition of “relevant evidence.”).(4)
To aid the court in making the written findings required by subsection (3) of this section, the department shall present written documentation to the court outlining:(a)
The efforts made to prevent taking the child or ward into protective custody and to provide services to make it possible for the child or ward to safely return home;(b)
The efforts the department made pursuant to ORS 419B.192 (Placement of child or ward);(c)
Why protective custody is in the best interests of the child or ward; and(d)
If the child or ward is an Indian child, why protective custody is necessary to prevent imminent physical damage or harm to the Indian child.(B)
If the court finds, subject to the procedures under ORS 419B.636 (Inquiry to determine whether child is Indian child) (4), that there is reason to know that the child is an Indian child, the court shall order that the child or ward is to be treated as an Indian child.(b)
The court may not enter an order taking an Indian child into protective custody unless after holding a hearing the court finds in writing:(A)
That removal of the child or ward is in the best interest, as described in ORS 419B.612 (Best interests of Indian child), of the child or ward; and(B)
That a preponderance of the evidence indicates that protective custody is necessary to prevent imminent physical damage or harm to the child.(c)
Intentionally left blank —Ed.(A)
If the child or ward is an Indian child and the court enters a protective custody order under this section, the order must direct the department to immediately notify the court if new information indicates that the emergency necessitating the protective custody of the Indian child has changed.(B)
Whenever the court receives notice from the department that the emergency necessitating the protective custody of the Indian child has changed, the court shall promptly hold a hearing under this section to determine whether protective custody continues to be necessary.(C)
The court shall immediately terminate the protective custody of an Indian child if the court determines that protective custody is no longer necessary to prevent imminent physical damage or harm to the Indian child.(d)
If the child or ward is an Indian child, a protective order under this section may not be continued for more than 30 days unless the court:(A)
Has set the case for a hearing on the petition alleging jurisdiction under ORS 419B.100 (Jurisdiction) (1);(B)
Determines that restoring the Indian child to the Indian child’s parent or Indian custodian would subject the Indian child to imminent physical damage or harm;(C)
Despite diligent efforts, has been unable to transfer the proceeding to the jurisdiction of the Indian child’s tribe; or(D)
Has been unable to set the case for a hearing on the petition showing the child or ward to be within the court’s jurisdiction under ORS 419B.100 (Jurisdiction) for a reason other than scheduling or availability of counsel and the reason has been documented in writing on the record.(6)
As used in this section, “active efforts” has the meaning described in ORS 419B.645 (Active efforts). [1993 c.33 §71; 1993 c.295 §5; 1993 c.546 §123; 1997 c.873 §19; 1999 c.859 §8; 2001 c.686 §3; 2003 c.355 §1; 2003 c.396 §42; 2007 c.806 §4; 2019 c.382 §16; 2019 c.594 §10; 2020 s.s.1 c.14 §31; 2021 c.398 §56]
Source:
Section 419B.185 — Evidentiary hearing, https://www.oregonlegislature.gov/bills_laws/ors/ors419B.html.
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