(a) "Former parent" means a person who was previously the legal parent of an Indian child subject to a judgment of adoption under ORS 109.350 or 419B.529 and whose parental rights have not been restored under ORS 109.382 to 419B.652.
(b) "Prior Indian custodian" means a person who was an Indian child’s Indian custodian before entry of a judgment of adoption of the child under ORS 109.350 or 419B.529.
(2) If a judgment of adoption of an Indian child under ORS 109.350 or 419B.529 is vacated, or the adoptive parent has voluntarily consented to the termination of parental rights, the court vacating the judgment or terminating the parental rights must notify, by registered or certified mail with return receipt requested, the Indian child’s former parents, prior Indian custodian, if any, and Indian tribe.
(3) The notice required under subsection (2) of this section must:
(a) Include the Indian child’s current name and any former names as reflected in the court record;
(b) Inform the recipient of the right to move the court for the return of custody of and restoration of parental rights to the Indian child under this section;
(c) Provide sufficient information to allow the recipient to participate in any scheduled hearings; and
(d) Be sent to the last known address in the court record.
(4)(a) An Indian child’s former parent or prior Indian custodian may waive notice under this section by executing waiver of notice in person before the court and filing the waiver with the court. The waiver must clearly set out the conditions to the waiver, if any.
(b) Prior to the execution of a waiver under this subsection, the court must explain to the former parent or prior Indian custodian, on the record in detail and in the language of the former parent or prior Indian custodian:
(A) The former parent’s right to legal counsel, if applicable;
(B) The terms and consequences of the waiver; and
(C) How the waiver may be revoked.
(c) After execution of the waiver, the court shall certify that it provided the explanation as required under paragraph (b) of this subsection and that the former parent or prior Indian custodian fully understood the explanation.
(5) At any time prior to the entry of a judgment of adoption or readoption of the Indian child, the former parent or prior Indian custodian may revoke a waiver executed by the former parent or prior Indian custodian by filing a written revocation with the court or by making a statement of revocation on the record in a proceeding for the adoption of the Indian child.
(6)(a) If a judgment of adoption or readoption of an Indian child under ORS 109.350 or 419B.529 is vacated other than as provided in ORS 109.382 or 419B.651 or the adoptive parent of the Indian child has voluntarily consented to the termination of parental rights, an Indian child’s former parent or prior Indian custodian may intervene in the proceeding and move the court for the Indian child to be returned to the custody of the former parent or prior Indian custodian and for the parental rights to the Indian child to be restored.
(b)(A) The moving party shall provide by registered or certified mail, return receipt requested, notice of the motion for the Indian child to be returned to the custody of the former parent or prior Indian custodian and the time set for filing objections to the motion, together with notice of proceeding in the form required under ORS 419B.639 (3), to:
(i) Each tribe of which the child may be a member or in which the Indian child may be eligible for membership;
(ii) The child’s parents;
(iii) The child’s Indian custodian, if applicable; and
(iv) The appropriate United States Bureau of Indian Affairs Regional Director listed in 25 C.F.R. 23.11(b), if the identify or location of the child’s parents cannot be ascertained.
(B) The petitioner shall file a declaration of compliance, including a copy of each notice sent under this subsection, together with any return receipts or other proof of service.
(c) Upon the filing of an objection to the motion, the court shall fix the time for hearing on objections.
(d) The court shall order the Indian child returned to the custody of the former parent or prior Indian custodian or restore the parental rights to the Indian child unless the court finds, by clear and convincing evidence, that the return of custody or restoration of parental rights is not in the child’s best interests, as described in ORS 419B.612. The court’s order must include a transition plan for the physical custody of the child, which may include protective supervision under ORS 419B.331. [2021 c.398 §32]
Note: See note under 109.382.