Conduct of termination hearing
(1)The court shall hold a hearing on the question of terminating the rights of the parent or parents. The court may not hold the hearing any earlier than 10 days after service or final publication of the summons. The facts on the basis of which the rights of the parents are terminated, unless admitted, must be established by clear and convincing evidence and a stenographic or other report authorized by ORS 8.340 (Reporter’s duties) shall be taken of the hearing.
(2)Not earlier than provided in subsection (1) of this section and not later than six months from the date on which summons for the petition to terminate parental rights is served, the court before which the petition is pending shall hold a hearing on the petition except for good cause shown. When determining whether or not to grant a continuance for good cause, the judge shall take into consideration the age of the child or ward and the potential adverse effect delay may have on the child or ward. The court shall make written findings when granting a continuance.
(3)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 may not exclude the attorney for each party and any testimony taken under this subsection shall be recorded.
(4)Intentionally left blank —Ed.
(a)Notwithstanding subsection (1) of this section, the termination of parental rights to an Indian child must be supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that continued custody of the Indian child by the child’s parents is likely to result in serious emotional or physical damage to the child.
(b)The court may not enter an order terminating parental rights to an Indian child unless:
(A)The court has offered the parties the opportunity to participate in mediation as required under ORS 419B.517 (Mediation to be encouraged);
(B)If requested by the tribe, and if the Department of Human Services has identified a proposed adoptive placement, an agreement is in place that requires the proposed adoptive placement to maintain connection between the Indian child and the Indian child’s tribe; and
(C)After inquiry as required under ORS 419B.636 (Inquiry to determine whether child is Indian child) and notice as required under ORS 419B.639 (Notice to tribe in emergency proceeding), and in addition to any other findings required under ORS 419B.500 (Termination of parental rights generally) to 419B.524 (Effect of termination order), the court determines:
(i)That evidence, including the testimony of one or more qualified expert witnesses under ORS 419B.642 (Qualified expert witness), establishes beyond a reasonable doubt that the continued custody of the Indian child by the child’s parent or custody by the child’s Indian custodian is likely to result in serious emotional or physical damage to the Indian child; and
(ii)That active efforts under ORS 419B.645 (Active efforts) to reunite the Indian family did not eliminate the necessity for termination based on serious emotional or physical damage to the Indian child.
(c)The evidence under this subsection must show a causal relationship between the particular conditions in the Indian child’s home and the likelihood that continued custody of the Indian child by the child’s parents will result in serious emotional or physical damage to the particular Indian child who is the subject of the child custody proceeding, as defined in ORS 419B.603 (Definitions). 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.
(d)As used in this subsection, “custody” and “continued custody” have the meanings described in ORS 419B.606 (Custody). [1993 c.33 §145; 1993 c.546 §58; 1995 c.767 §2; 1997 c.873 §9; 2003 c.396 §88; 2020 s.s.1 c.14 §49; 2021 c.398 §64]
Section 419B.521 — Conduct of termination hearing,
Notes of Decisions
Under former similar statute
In termination of parental rights proceeding, court may refuse to allow parent to call child as witness on parent’s behalf. State ex rel Juv. Dept. v. Beasley, 314 Or 444, 840 P2d 78 (1992)
Where Indian child is involved, all facts that form basis for termination of parental rights are subject to beyond reasonable doubt standard. Department of Human Services v. K.C.J., 228 Or App 70, 207 P3d 423 (2009)