ORS 109.322¹
Consent when parent mentally ill, mentally retarded or imprisoned

(1) If a parent has been adjudged mentally ill or mentally retarded 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 (Notice to nonconsenting parent), 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 mentally ill or mentally retarded, 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, 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 mentally ill or mentally retarded 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 109.316 (Consent by Department of Human Services or approved child-caring agency of this state) or 109.318 (Consent by organization located outside Oregon). [1957 c.710 §6 (109.312 (Consent to adoption) to 109.329 (Adoption of person 18 years of age or older or legally married) enacted in lieu of 109.320); 1975 c.711 §1; 2003 c.576 §146; 2005 c.369 §5; 2007 c.70 §22]

Notes of Decisions

Authority of court to con­duct show cause hearing does not deny due process or equal protec­tion rights of imprisoned parent who refuses to con­sent to adop­tion. F. v. C., 24 Or App 601, 547 P2d 175 (1976)

Where trial court ordered father's waiver of con­sent to adop­tion without first allowing him to present his de­fense in opposi­tion to adop­tion, father was denied his right, under this sec­tion, to be heard. Anderson v. Crouse, 83 Or App 216, 730 P2d 1275 (1986)

This sec­tion was not impliedly repealed by enact­ment of ORS 137.275 (Effect of felony conviction on civil and political rights of felon) which abolishes "civil death." Stursa v. Kyle, 99 Or App 236, 782 P2d 158 (1989)

This sec­tion is not penal and does not violate Article I, sec­tion 15 of Oregon Constitu­tion. Stursa v. Kyle, 99 Or App 236, 782 P2d 158 (1989)

Privileges and immunities pro­vi­sion of Oregon Constitu­tion requires that indigent parent whose rights are being terminated be afforded assistance of counsel in contested adop­tion pro­ceed­ing. Hunt v. Weiss, 169 Or App 317, 8 P3d 990 (2000)

Where parent incarcerated for more than three years refuses to con­sent to adop­tion, court must find proof of addi­tional statutory ground for termina­tion of parent's rights before court may proceed to considera­tion of best interest of child. Moran v. Weldon, 184 Or App 269, 57 P3d 898 (2002), Sup Ct review denied

Three-year incarcera­tion period served prior to filing of adop­tion peti­tion may include time prior to birth of child. Daniel v. Naylor, 192 Or App 1, 84 P3d 819 (2004)

Atty. Gen. Opinions

Change of name in public records, (1977) Vol 38, p 945

Chapter 109

Law Review Cita­tions

12 WLJ 569-589 (1976)

1 Legislative Counsel Committee, CHAPTER 109—Parent and Child Rights and Relationships, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors109.­pdf (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 109, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­109ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information