109.322
Consent of parent with mental illness or intellectual disability; consent of
imprisoned parent.
(1) If a parent has been adjudged to be a person with mental illness under ORS
426.130 or a person with an intellectual disability who is in need of
commitment for residential care, treatment and training under ORS 427.290, and
remains so at the time of the adoption proceedings, or if a parent is
imprisoned in a state or federal prison under a sentence for a term of not less
than three years and has actually served three years, the petitioner, in
accordance with ORS 109.330, shall serve on the parent, if the parent has not
consented in writing to the adoption, a summons and a motion and order to show
cause why the adoption of the child should not be ordered without the parent’s
consent.
(2) In the case
of a parent adjudged to be a person with mental illness under ORS 426.130 or a
person with an intellectual disability who is in need of commitment for
residential care, treatment and training under ORS 427.290, the petitioner
shall also serve the summons and the motion and order to show cause upon the
guardian of the parent. If the parent has no guardian, the court shall appoint
a guardian ad litem to appear for the parent in the adoption proceedings.
(3) Upon hearing,
except as provided in ORS 109.330 (8) if the child is an Indian child, if the
court finds that the adoption is in the best interests of the child, the
consent of the parent who is imprisoned or adjudged to be a person with mental
illness or an intellectual disability is not required, and the court may
proceed regardless of the objection of the parent.
(4) This section
does not apply when consent is given in loco parentis under ORS 109.325 or
109.327. [1957 c.710 §6 (109.312 to 109.329 enacted in lieu of 109.320); 1975
c.711 §1; 2003 c.576 §146; 2005 c.369 §5; 2007 c.70 §22; 2013 c.360 §4; 2021
c.398 §22]
Notes of Decisions
Cited in
22
cases (
2 in the last 5 years), 1970–2023 · leading case:
Moran v. Weldon, 57 P.3d 898 (Or. Ct. App. 2002).
Moran v. Weldon, 57 P.3d 898 (Or. Ct. App. 2002).
· cites it 18× “He argues that ORS 109.322, which provides for an adoption without a parent’s consent if the parent is imprisoned under a sentence of not less than three years and has actually served three years, is unconstitutional on several grounds.”
F. v. C., 547 P.2d 175 (Or. Ct. App. 1976).
· cites it 7× “stablish that petitioners are "fit and proper” 4 adoptive parents or to warrant the termination of his parental rights, 5 father has raised two important questions for this court’s consideration: (1) Did the "subject” of the proceeding — the child — have a constitutional right…”
Matter of D., 547 P.2d 175 (Or. Ct. App. 1976).
· cites it 7× “lish that petitioners are "fit and proper" [4] adoptive parents or to warrant the termination of his parental rights, [5] father has raised two important questions for this court's consideration: (1) Did the "subject" of the proceeding the child have a constitutional right…”
Moody v. Voorhies, 475 P.2d 579 (Or. 1970).
· cites it 4× “314, or by a judicial determination that the necessity of consent is obviated by a judicial finding that the criteria of ORS 109.322, or ORS 109.324, or ORS 419.523 have been met.”
Hunt v. Weiss, 8 P.3d 990 (Or. Ct. App. 2000).
· cites it 6× “Before beginning to testify, father stated that he “would like to ask the Court for counsel” and repeated his request for a continuance until after his release.”
Andersen v. Crouse, 730 P.2d 1275 (Or. Ct. App. 1986).
· cites it 6× “This is an action terminating a non-custodial father’s parental rights under ORS 109.322 1 and allowing the adoption of his minor child.”
W. E. F. v. C. L. M., 213 P.3d 580 (Or. Ct. App. 2009).
· cites it 13× “312, ORS 109.322, and ORS 109.324. Petitioners argued that, even though father had not served three years, the petition should not be dismissed.”
Hofmann v. Anderson, 31 P.3d 510 (Or. Ct. App. 2001).
· cites it 2× “*314 ORS 109.322 allows a court to grant a petition for adoption when the adoption will serve the child’s best interests and the nonconsenting parent is serving a term of incarceration of at least three years and has actually served three years.”
Daniel v. Naylor, 84 P.3d 819 (Or. Ct. App. 2004).
· cites it 11× “The judgment provides for the termination of mother’s parental rights pursuant to ORS 109.322. She argues that the trial court lacked subject matter jurisdiction, erred in granting the adoption over her objection pursuant to ORS 109.”
C. R. H. v. B. F., 169 P.3d 1286 (Or. Ct. App. 2007).
· cites it 3× “Mother and stepfather do not advance, and indeed, the record does not support, grounds for the application of any other statutory exception to father’s consent, including ORS 109.322, which dispenses with a parent’s consent if the parent has been “imprisoned in a state or…”
Nelson v. Hunter, 888 P.2d 124 (Or. Ct. App. 1995).
“1 ORS 109.322 provides, in part: “If either parent * * * is imprisoned in a state or federal prison under a sentence for a term of not less than three years and has actually served three years, there shall be served upon such parent, if the parent has not consented in writing to…”
Michels v. Hodges, 956 P.2d 184 (Or. 1998).
“316; (3) an agency outside the state has authority to consent in loco parentis, ORS 109.”
— Or. Rev. Stat. § 109.322(1) — 2 cases
W. E. F. v. C. L. M., 213 P.3d 580 (Or. Ct. App. 2009).
“312, ORS 109.322, and ORS 109.324. Petitioners argued that, even though father had not served three years, the petition should not be dismissed.”
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