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H.B. 343 Enrolled
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8 LONG TITLE
9 General Description:
10 This bill amends provisions of the Judicial Code relating to foster placements and
11 adoption.
12 Highlighted Provisions:
13 This bill:
14 . subject to certain exceptions, establishes a priority for placing a child with a man
15 and a woman who are married to each other when the child is placed in a foster
16 placement or for adoption;
17 . prohibits taking religion into account, or discriminating against a particular religion,
18 when determining the placement of a child in foster care, unless religion is taken
19 into account for the purpose of placing the child with a person or family of the same
20 religion as the child; and
21 . makes technical changes.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 This bill coordinates with H.B. 328 by providing substantive and technical
26 amendments.
27 Utah Code Sections Affected:
28 AMENDS:
29 78-3a-307, as last amended by Chapter 281, Laws of Utah 2006
30 78-30-1, as last amended by Chapter 208, Laws of Utah 2000
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32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 78-3a-307 is amended to read:
34 78-3a-307. Shelter hearing -- Placement with a noncustodial parent or relative --
35 DCFS custody.
36 (1) (a) At the shelter hearing, when the court orders that a child be removed from the
37 custody of the child's parent in accordance with the requirements of Section 78-3a-306 , the
38 court shall first determine whether there is another natural parent as defined in Subsection
39 (1)(b), with whom the child was not residing at the time the events or conditions that brought
40 the child within the court's jurisdiction occurred, who desires to assume custody of the child. If
41 that parent requests custody, the court shall place the child with that parent unless it finds that
42 the placement would be unsafe or otherwise detrimental to the child. The provisions of this
43 Subsection (1) are limited by the provisions of Subsection (8)(b).
44 (b) Notwithstanding the provisions of Section 78-3a-103 , for purposes of this section
45 "natural parent" includes only a biological or adoptive mother, an adoptive father, or a
46 biological father who was married to the child's biological mother at the time the child was
47 conceived or born, or who has strictly complied with the provisions of Section 78-30-4.14 prior
48 to removal of the child or voluntary surrender of the child by the custodial parent. This
49 definition applies regardless of whether the child has been or will be placed with adoptive
50 parents or whether adoption has been or will be considered as a long term goal for the child.
51 (c) (i) The court shall make a specific finding regarding the fitness of that parent to
52 assume custody, and the safety and appropriateness of the placement.
53 (ii) The court shall, at a minimum, order the division to visit the parent's home,
54 perform criminal background checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , and
55 check the division's management information system for any previous reports of abuse or
56 neglect received by the division regarding the parent at issue.
57 (iii) The court may order the Division of Child and Family Services to conduct any
58 further investigation regarding the safety and appropriateness of the placement.
59 (iv) The division shall report its findings in writing to the court.
60 (v) The court may place the child in the temporary custody of the division, pending its
61 determination regarding that placement.
62 (2) If the court orders placement with a parent under Subsection (1), the child and the
63 parent are under the continuing jurisdiction of the court. The court may order that the parent
64 assume custody subject to the supervision of the court, and order that services be provided to
65 the parent from whose custody the child was removed, the parent who has assumed custody, or
66 both. The court shall also provide for reasonable parent-time with the parent from whose
67 custody the child was removed, unless parent-time is not in the best interest of the child. The
68 court's order shall be periodically reviewed to determine whether:
69 (a) placement with the parent continues to be in the child's best interest;
70 (b) the child should be returned to the original custodial parent;
71 (c) the child should be placed with a relative, pursuant to Subsection (5); or
72 (d) the child should be placed in the custody of the division.
73 (3) The time limitations described in Section 78-3a-311 with regard to reunification
74 efforts, apply to children placed with a previously noncustodial parent in accordance with
75 Subsection (1).
76 (4) Legal custody of the child is not affected by an order entered under Subsection (1)
77 or (2). In order to affect a previous court order regarding legal custody, the party must petition
78 that court for modification of the order.
79 (5) (a) (i) If, at the time of the shelter hearing, a child is removed from the custody of
80 the child's parent and is not placed in the custody of his other parent, the court shall, at that
81 time, determine whether there is a relative who is able and willing to care for the child.
82 (ii) The court may order the Division of Child and Family Services to conduct a
83 reasonable search to determine whether there are relatives of the child who are willing and
84 appropriate, in accordance with the requirements of this part and Title 62A, Chapter 4a, Part 2,
85 Child Welfare Services, for placement of the child. The court shall order the parents to
86 cooperate with the division, within five working days, to provide information regarding
87 relatives who may be able and willing to care for the child.
88 (iii) The child may be placed in the temporary custody of the division pending the
89 determination under Subsection (5)(a)(ii).
90 (iv) This section may not be construed as a guarantee that an identified relative will
91 receive custody of the child. However, preferential consideration shall be given to a relative's
92 request for placement of the child, if it is in the best interest of the child, and the provisions of
93 this section are satisfied.
94 (b) (i) If a willing relative is identified pursuant to Subsection (5)(a), the court shall
95 make a specific finding regarding the fitness of that relative to assume custody, and the safety
96 and appropriateness of placement with that relative. In order to be considered a "willing
97 relative" under this section, the relative shall be willing to cooperate if the child's permanency
98 goal is reunification with his parent or parents, and be willing to adopt or take permanent
99 custody of the child if that is determined to be in the best interest of the child.
100 (ii) The court shall, at a minimum, order the division to conduct criminal background
101 checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , visit the relative's home, check
102 the division's management information system for any previous reports of abuse or neglect
103 regarding the relative at issue, report its findings in writing to the court, and provide sufficient
104 information so that the court may determine whether:
105 (A) the relative has any history of abusive or neglectful behavior toward other children
106 that may indicate or present a danger to this child;
107 (B) the child is comfortable with the relative;
108 (C) the relative recognizes the parent's history of abuse and is determined to protect the
109 child;
110 (D) the relative is strong enough to resist inappropriate requests by the parent for
111 access to the child, in accordance with court orders;
112 (E) the relative is committed to caring for the child as long as necessary; and
113 (F) the relative can provide a secure and stable environment for the child.
114 (iii) The court may order the Division of Child and Family Services to conduct any
115 further investigation regarding the safety and appropriateness of the placement.
116 (iv) The division shall complete and file its assessment regarding placement with a
117 relative as soon as practicable, in an effort to facilitate placement of the child with a relative.
118 (c) The court may place the child in the temporary custody of the division, pending the
119 division's investigation pursuant to Subsection (5)(b), and the court's determination regarding
120 that placement. The court shall ultimately base its determination regarding placement with a
121 relative on the best interest of the child.
122 (d) For purposes of this section, "relative" means an adult who is a grandparent, great
123 grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, first
124 cousin, stepsibling, or sibling of the child. In the case of a child defined as an "Indian" under
125 the Indian Child Welfare Act, 25 U.S.C. Section 1903, "relative" also means an "extended
126 family member" as defined by that statute.
127 (6) (a) When the court vests physical custody of a child with a relative pursuant to
128 Subsection (5), it shall order that the relative assume custody subject to the continuing
129 supervision of the court, and shall order that any necessary services be provided to the child
130 and the relative. That child is not within the temporary custody or custody of the Division of
131 Child and Family Services. The child and any relative with whom the child is placed are under
132 the continuing jurisdiction of the court. The court may enter any order that it considers
133 necessary for the protection and best interest of the child. The court shall provide for
134 reasonable parent-time with the parent or parents from whose custody the child was removed
135 unless parent-time is not in the best interest of the child.
136 (b) (i) Placement with a relative pursuant to Subsection (5) shall be periodically
137 reviewed by the court, no less often than every six months, to determine whether:
138 (A) placement with the relative continues to be in the child's best interest;
139 (B) the child should be returned home; or
140 (C) the child should be placed in the custody of the division.
141 (ii) No later than 12 months after placement with a relative the court shall schedule a
142 hearing for the purpose of entering a permanent order in accordance with the best interest of the
143 child.
144 (iii) The time limitations described in Section 78-3a-311 , with regard to reunification
145 efforts, apply to children placed with a relative pursuant to Subsection (5).
146 (7) When the court orders that a child be removed from the custody of the child's
147 parent and does not vest custody in another parent or relative under this section, the court shall
148 order that the child be placed in the temporary custody of the Division of Child and Family
149 Services, to proceed to adjudication and disposition and to be provided with care and services
150 in accordance with this chapter and Title 62A, Chapter 4a, Child and Family Services.
151 (8) (a) Any preferential consideration that a relative is initially granted pursuant to
152 Subsection (5) expires 120 days from the date of the shelter hearing. After that time period has
153 expired, a relative who has not obtained custody or asserted an interest in a child, may not be
154 granted preferential consideration by the division or the court.
155 (b) When the time period described in Subsection (8)(a) has expired, the preferential
156 consideration which is initially granted to a natural parent in accordance with Subsection (1), is
157 limited. After that time the court shall base its custody decision on the best interest of the
158 child.
159 (9) If, following the shelter hearing, the child is placed with a person who is not a
160 parent, relative, or former foster parent of the child, priority shall be given to a foster placement
161 with a man and a woman who are married to each other, unless it is in the best interests of the
162 child to place the child with a single foster parent.
163 (10) In determining the placement of a child, neither the court, nor the Division of
164 Child and Family Services, may take into account, or discriminate against, the religion of a
165 person with whom the child may be placed, unless the purpose of taking religion into account
166 is to place the child with a person or family of the same religion as the child.
167 Section 2. Section 78-30-1 is amended to read:
168 78-30-1. Who may adopt -- Adoption of minor -- Adoption of adult -- Priority
169 among adoptive parents.
170 (1) Any minor child may be adopted by an adult person, in accordance with the
171 provisions and requirements of this section and this chapter.
172 (2) Any adult may be adopted by another adult. However, all provisions of this chapter
173 apply to the adoption of an adult just as though the person being adopted were a minor, except
174 that consent of the parents of an adult person being adopted is not required.
175 (3) (a) A child may be adopted by:
176 (i) adults who are legally married to each other in accordance with the laws of this
177 state, including adoption by a stepparent; or
178 (ii) subject to Subsection (4), any single adult, except as provided in Subsection (3)(b).
179 (b) A child may not be adopted by a person who is cohabiting in a relationship that is
180 not a legally valid and binding marriage under the laws of this state. For purposes of this
181 Subsection (3)(b), "cohabiting" means residing with another person and being involved in a
182 sexual relationship with that person.
183 (4) In order to provide a child who is in the custody of the division with the most
184 beneficial family structure, when a child in the custody of the division is placed for adoption,
185 the division or child-placing agency shall place the child with a man and a woman who are
186 married to each other, unless:
187 (a) there are no qualified married couples who:
188 (i) have applied to adopt a child;
189 (ii) are willing to adopt the child; and
190 (iii) are an appropriate placement for the child;
191 (b) the child is placed with a relative of the child;
192 (c) the child is placed with a person who has already developed a substantial
193 relationship with the child;
194 (d) the child is placed with a person who:
195 (i) is selected by a parent or former parent of the child, if the parent or former parent
196 consented to the adoption of the child; and
197 (ii) the parent or former parent described in Subsection (4)(d)(i):
198 (A) knew the person with whom the child is placed before the parent consented to the
199 adoption; or
200 (B) became aware of the person with whom the child is placed through a source other
201 than the division or the child-placing agency that assists with the adoption of the child; or
202 (e) it is in the best interests of the child to place the child with a single person.
203 Section 3. Coordinating H.B. 343 with H.B. 328 -- Substantive and technical
204 amendments.
205 If this H.B. 343 and H.B. 328, Child Protection and Parental Rights Amendments, both
206 pass, it is the intent of the Legislature that the Office of Legislative Research and General
207 Counsel shall prepare the Utah Code database for publication by amending Subsection
208 78-3a-307 (9) to read:
209 "(9) If, following the shelter hearing, the child is placed with a person who is not a
210 parent of the child, a relative of the child, a friend of a parent of the child, or a former foster
211 parent of the child, priority shall be given to a foster placement with a man and a woman who
212 are married to each other, unless it is in the best interests of the child to place the child with a
213 single foster parent."
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