§ 1.2 The Usual Parties
Library | Juvenile Law: Dependency (OSBar) (2017 Ed.) |
§ 1.2-1 Child or Ward
The terms used for minors vary according to the type of juvenile proceeding. A minor in a dependency proceeding is referred to as a child or ward. See ORS 419B.005(2); ORS 419A.004(36).
A child who is the subject of a juvenile court dependency proceeding is neither a plaintiff nor a defendant in the traditional sense that those terms are used in legal actions. By statute, a child is a party to a juvenile court dependency proceeding. ORS 419B.875(1)(a)(A). A child has the right to be represented by retained counsel. The court must appoint a lawyer for the child whenever the court is requested to do so. ORS 419B.195(1). Depending on the age and circumstances of the children, the same attorney may be appointed to represent multiple siblings, or separate counsel may be appointed for each child.
PRACTICE TIP: The child's lawyer should be alert to and avoid potential conflicts of interest, or the appearance of a conflict of interest, that would interfere with representation of the child, and should also be cautious in accepting representation of more than one sibling in a case. If the siblings have conflicting interests, or one sibling is accused of physically or sexually abusing the other sibling, separate counsel for each child should be appointed. Conflicts of interest between siblings may also be present when there is a significant age difference between them, such as the older children objecting to the permanent plan being recommended by counsel for the younger children. Young child clients may not be intellectually capable of waiving attorney conflicts, even after full disclosure, so the best practice is to look closely at the case and the sibling relationships before agreeing to accept multiple siblings, and to remain aware of the potential for conflict throughout the life of the case. See OSB, Specific Standards for Representation in Juvenile Dependency Cases, Standard 2F (2014), available at < www.osbar.org/surveys_research/perfor-mancestandard/index.html >.
A child who is 12 years of age or older must be served with true copies of the summons and the petition in the case. ORS 419B.839(1)(f); see ORS 419B.812(1) (defining true copy); ORS 419B.824 (describing manner of service). Presumably, a child 12 years of age or older who has been served with a summons must either appear in the proceeding or waive appearance.
PRACTICE TIP: In some counties, even when actually summoned in accordance with the statute, children are rarely present at any stage of the proceedings. The lawyer should check the local practice and, if the child client is capable of considered judgment, consult with the child client to determine whether to request that the child be brought to court. See OSB, Specific Standards for Representation in Juvenile Dependency Cases for more information on the lawyer's role and on the phrase considered judgment. See also chapter 2 (rights of parties to a dependency case).
PRACTICE TIP: It is no longer presumed that the child's interest is adverse to the state's position; the child's position must be overt. This is particularly important for purposes of statements made by a child sought to be admitted under OEC 801(4)(b) as a statement against a party. See Dep't of Human Services v. V.N.W., 353 Or 25, 37, 292 P3d 548 (2012).
PRACTICE TIP: Children in foster care now have what is known as the Foster Children's Bill of Rights for children in the custody of Oregon DHS foster care. OAR 413-010-0170 to 413-010-0185. DHS has a Foster Care Ombudsman to enforce the Foster Children's Bill of Rights.
The Ombudsman position was created in 2013 with the passage of Senate Bill 123 [(2013) (Or Laws 2013, ch 515, codified at ORS 418.200-418.202)]. This position is the result of legislation developed and passed by current and former foster youth. The Ombudsman receives, investigates and helps resolve complaints and concerns from a wide range of people including foster youth, parents, relatives, CASAs [(court-appointed special advocates)], attorneys, social workers and many other interested parties.
< www.oregon.gov/DHS/ABOUTDHS/Pages/Fostercare-Ombudsman.aspx >.
§ 1.2-2 Parents
§ 1.2-2(a) Mothers and Legal Fathers
In a dependency case, the child's mother and legal father are parties to the case. ORS 419B.875(1)(a)(B); see chapter 2 (rights of parties to a dependency case). Parents may retain a lawyer or the court may appoint a lawyer to represent them "whenever the nature of the proceedings and due process so require." ORS 419B.205(1); ORS 419B.518(1); see chapter 2. A child's mother, father, or putative father who is less than 18 years of age is deemed to have attained majority for purposes of giving authorizations, releases, or waivers, or entering into agreements in juvenile court proceedings. ORS 109.112.
§ 1.2-2(b) Putative...
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