Download Zipped Introduced WP 8.0 HB0102.ZIP 27,192 Bytes
[Status][Bill Documents][Fiscal Note][Bills Directory]

H.B. 102

             1     

PARENTAL RIGHTS AMENDMENTS

             2     
2000 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Nora B. Stephens

             5      AN ACT RELATING TO CHILD WELFARE AND EDUCATION; REQUIRING PARENTAL
             6      PERMISSION FOR SPECIFIED IN-HOME PRESCHOOL PROGRAMS; REQUIRING DCFS
             7      TO ESTABLISH FAMILY IMPACT STATEMENTS WITH REGARD TO EACH OF ITS
             8      POLICIES OR RULES; DESCRIBING PARENTAL RIGHTS; LIMITING CERTAIN
             9      INVESTIGATIONS OF DCFS; REQUIRING SPECIALIZED REVIEW PRIOR TO REMOVAL
             10      OF CHILDREN UNDER CERTAIN CIRCUMSTANCES; AMENDING PARENTAL
             11      NOTIFICATION REQUIREMENTS; CLARIFYING THAT SPECIFIED INVESTIGATION
             12      STANDARDS ARE INTENDED TO BE POST-REMOVAL; AMENDING PROVISIONS
             13      REGARDING PARENT AND FOSTER PARENT INPUT IN TREATMENT PLANS;
             14      AMENDING SHELTER HEARING PROVISIONS; CHANGING TIMELINE FOR FINAL
             15      ADJUDICATION; AND PROVIDING AN EFFECTIVE DATE.
             16      This act affects sections of Utah Code Annotated 1953 as follows:
             17      AMENDS:
             18          62A-4a-201, as last amended by Chapter 274, Laws of Utah 1998
             19          62A-4a-202.1, as last amended by Chapter 274, Laws of Utah 1998
             20          62A-4a-202.2, as renumbered and amended by Chapter 302, Laws of Utah 1995
             21          62A-4a-202.3, as last amended by Chapters 13 and 274, Laws of Utah 1998
             22          62A-4a-205 (Effective 07/01/00), as last amended by Chapter 121, Laws of Utah 1999
             23          62A-4a-409, as last amended by Chapter 274, Laws of Utah 1998
             24          78-3a-301, as last amended by Chapter 274, Laws of Utah 1998
             25          78-3a-306, as last amended by Chapter 99, Laws of Utah 1999
             26          78-3a-308, as last amended by Chapter 329, Laws of Utah 1997
             27      ENACTS:


             28          53A-1a-105.5, Utah Code Annotated 1953
             29          62A-4a-119, Utah Code Annotated 1953
             30      Be it enacted by the Legislature of the state of Utah:
             31          Section 1. Section 53A-1a-105.5 is enacted to read:
             32          53A-1a-105.5. Parental permission required for specified in-home programs --
             33      Exceptions.
             34          (1) The State Board of Education, local school boards, school districts, and public schools
             35      are prohibited from requiring infant or preschool in-home literacy or other educational or parenting
             36      programs without obtaining parental permission in each individual case.
             37          (2) This section does not prohibit the Division of Child and Family Services, within the
             38      Department of Human Services, from providing or arranging for family preservation or other
             39      statutorily provided services in accordance with Title 62A, Chapter 4a, or any other in-home
             40      services that have been court ordered, pursuant to Title 62A, Chapter 4a, or Title 78, Chapter 3a.
             41          Section 2. Section 62A-4a-119 is enacted to read:
             42          62A-4a-119. Division required to produce "family impact statement" with regard to
             43      all policies, procedures, and rules.
             44          Whenever the division establishes any policy, procedure, or rule, it shall assess its impact
             45      on families. Specifically, the division shall determine the impact of any new policy, procedure,
             46      or rule on the authority of parents to oversee the care, supervision, upbringing, and education of
             47      children in the parents' custody. The division shall publish a family impact statement describing
             48      that assessment and determination, within 90 days of the establishment of every policy, procedure,
             49      and rule.
             50          Section 3. Section 62A-4a-201 is amended to read:
             51           62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
             52      state.
             53          (1) (a) Courts have recognized a general presumption that it is in the best interest and
             54      welfare of a child to be raised under the care and supervision of his natural parents. A child's need
             55      for a normal family life in a permanent home, and for positive, nurturing family relationships will
             56      usually best be met by his natural parents. Additionally, the integrity of the family unit, and the
             57      right of parents to conceive and raise their children have found protection in the due process clause
             58      of the Fourteenth Amendment to the United States Constitution. The right of a fit, competent


             59      parent to raise his child has long been protected by the laws and Constitution of this state and of
             60      the United States.
             61          (b) It is the public policy of this state that parents retain the fundamental right and duty to
             62      exercise primary control over the care, supervision, upbringing, and education of their children
             63      who are in their custody.
             64          (2) [As] It is also the public policy of this state that children have the right to protection
             65      from abuse and neglect, and that the state retains a compelling interest in investigating,
             66      prosecuting, and punishing abuse and neglect, as defined in this chapter, and in Title 78, Chapter
             67      3a. Therefore, as a counterweight to parental rights, the state, as parens patriae, has an interest in
             68      and responsibility to protect children whose parents abuse them or do not adequately provide for
             69      their welfare. There are circumstances where a parent's conduct or condition is a substantial
             70      departure from the norm and the parent is unable or unwilling to render safe and proper parental
             71      care and protection. Under those circumstances, the welfare and protection of children is the
             72      consideration of paramount importance.
             73          (3) When the division intervenes on behalf of an abused, neglected, or dependent child,
             74      it shall take into account the child's need for protection from immediate harm. Throughout its
             75      involvement, the division shall [attempt to] utilize the least intrusive means available to protect
             76      a child, in an effort to ensure that children are brought up in stable, permanent families, rather than
             77      in temporary foster placements under the supervision of the state.
             78          (4) When circumstances within the family pose a threat to the child's safety or welfare, the
             79      state's interest in the child's welfare is paramount to the rights of a parent. The division may obtain
             80      custody of the child for a planned period and place him in a safe environment, in accordance with
             81      the requirements of Title 78, Chapter 3a, Part 3, Abuse, Neglect, and Dependency Proceedings.
             82          (5) In determining and making "reasonable efforts" with regard to a child, pursuant to the
             83      provisions of Section 62A-4a-203 and keeping with the presumptions described in Subsection (1),
             84      both the division's and the court's paramount concern shall be the child's health, safety, and
             85      welfare.
             86          (6) In cases where actual sexual abuse, abandonment, or serious physical abuse or neglect
             87      are involved, the state has no duty to make "reasonable efforts" or to, in any other way, attempt to
             88      maintain a child in his home, provide reunification services, or to attempt to rehabilitate the
             89      offending parent or parents. This Subsection (6) does not exempt the division from providing


             90      court-ordered services.
             91          (7) (a) It is the division's obligation, under federal law, to achieve permanency for children
             92      who are abused, neglected, or dependent. If the use or continuation of "reasonable efforts," as
             93      described in Subsections (5) and (6), is determined to be inconsistent with the permanency plan
             94      for a child, then measures shall be taken, in a timely manner, to place the child in accordance with
             95      the permanency plan, and to complete whatever steps are necessary to finalize the permanent
             96      placement of the child.
             97          (b) If, because of his conduct or condition, a parent is determined to be unfit or
             98      incompetent based on the grounds for termination of parental rights described in Title 78, Chapter
             99      3a, Part 4, Termination of Parental Rights Act, the welfare and best interest of the child is of
             100      paramount importance, and shall govern in determining whether that parent's rights should be
             101      terminated.
             102          Section 4. Section 62A-4a-202.1 is amended to read:
             103           62A-4a-202.1. Taking a child into protective custody -- Peace officer -- Division of
             104      Child and Family Services caseworker.
             105          (1) Any peace officer may, without a warrant, take a minor into protective custody when
             106      the officer has substantial cause to believe that any of the factors described in Section 78-3a-301
             107      exist.
             108          (2) (a) A child welfare worker within the Division of Child and Family Services may take
             109      and maintain protective custody of a minor, without a warrant, in accordance with the requirements
             110      of this section and Section 78-3a-301 when accompanied by a peace officer, or without a peace
             111      officer, when a peace officer is not reasonably available.
             112          (b) If possible, consistent with the child's safety and welfare, before taking a child into
             113      protective custody, the worker shall also determine whether there are services reasonably available
             114      to the worker which, if provided to the minor's parent or to the minor, would eliminate the need
             115      to remove the minor from the custody of his parent in accordance with the provisions and
             116      limitations of Section 78-3a-301 . If those services are reasonably available, they shall be utilized.
             117      In determining whether services are reasonably available, and in making reasonable efforts to
             118      provide those services, the child's health, safety, and welfare shall be the worker's paramount
             119      concern.
             120          (c) (i) Except as provided in Subsection (2)(c)(ii), if a child welfare worker determines that


             121      there is substantial cause to believe that one or more of the factors described in Section 78-3a-301
             122      exist and determines, pursuant to Subsection (2)(b), that services are not reasonably available to
             123      eliminate the need for removal, the child welfare worker may proceed with removal of the child
             124      only after the worker has contacted a child protection specialist within the division, reviewed the
             125      reasons and need for removal with that specialist, and received the specialist's approval to proceed
             126      with removal.
             127          (ii) The provisions of Subsection (2)(c)(i) requiring a child protection specialist's review
             128      and approval prior to removal of a child do not apply and are not necessary if, in the child welfare
             129      worker's opinion, that process would create a delay that may endanger the health, safety, or welfare
             130      of the child.
             131          (iii) From its existing staff, the division shall train and appoint child protection specialists
             132      who are available 24 hours a day, seven days a week, to perform the duties described in Subsection
             133      (2)(c)(i).
             134          Section 5. Section 62A-4a-202.2 is amended to read:
             135           62A-4a-202.2. Notice to parent upon removal of child -- Written statement of
             136      procedural rights and preliminary proceedings.
             137          (1) Any peace officer or caseworker who takes a minor into protective custody pursuant
             138      to Section 62A-4a-202.1 shall immediately inform, through the most efficient means available, the
             139      parent, guardian, or responsible relative:
             140          (a) that the minor has been taken into protective custody;
             141          (b) the reasons for removal and placement in protective custody;
             142          [(b)] (c) that a written statement is available that explains the parent's procedural rights and
             143      the preliminary stages of the investigation and shelter hearing; and
             144          [(c)] (d) of a telephone number where [he] the parent may access further information.
             145          (2) The attorney general's office shall adopt, print, and distribute a form for the written
             146      statement described in Subsection (1)[(b)](c). The statement shall be made available to the
             147      division and for distribution in schools, health care facilities, local police and sheriff's offices, the
             148      division, and any other appropriate office within the Department of Human Services. The notice
             149      shall be in simple language and include at least the following information:
             150          (a) the conditions under which [the] a minor may be released, hearings that may be
             151      required, and the means by which the parent may access further specific information about [the]


             152      a minor's case and conditions of protective and temporary custody; and
             153          (b) the rights of [the] a minor and of the parent or guardian to legal counsel and to appeal.
             154          (3) If a good faith attempt was made by the peace officer or caseworker to notify the parent
             155      or guardian in accordance with the requirements of Subsection (1), failure to notify shall be
             156      considered to be due to circumstances beyond the control of the peace officer or caseworker and
             157      may not be construed to permit a new defense to any juvenile or judicial proceeding or to interfere
             158      with any rights, procedures, or investigations provided for by this chapter or Title 62A.
             159          Section 6. Section 62A-4a-202.3 is amended to read:
             160           62A-4a-202.3. Post-removal investigation standards -- Substantiation of reports --
             161      Child in protective custody.
             162          (1) When a child is taken into protective custody in accordance with Sections
             163      62A-4a-202.1 and 78-3a-301 , the Division of Child and Family Services shall immediately
             164      [investigate] initiate a post-removal investigation of the circumstances of the minor and the facts
             165      surrounding his being taken into protective custody.
             166          (2) The division's post-removal investigation shall include, among other actions necessary
             167      to meet reasonable professional standards:
             168          (a) a search for and review of any records of past reports of abuse or neglect involving the
             169      same child, any sibling or other child residing in that household, and the alleged perpetrator;
             170          (b) with regard to a child who is five years of age or older, a personal interview with the
             171      child outside of the presence of the alleged perpetrator, conducted in accordance with the
             172      requirements of Subsection (6);
             173          (c) an interview with the child's natural parents or other guardian, unless their whereabouts
             174      are unknown;
             175          (d) an interview with the person who reported the abuse, unless anonymous;
             176          (e) where possible and appropriate, interviews with other third parties who have had direct
             177      contact with the child, including school personnel and the child's health care provider;
             178          (f) an unscheduled visit to the child's home; and
             179          (g) if appropriate and indicated in any case alleging physical injury, sexual abuse, or failure
             180      to meet the child's medical needs, a medical examination. That examination shall be obtained no
             181      later than 24 hours after the child was placed in protective custody.
             182          (3) (a) [The] With regard to both pre- and post-removal, the division's determination of


             183      whether a report is substantiated or unsubstantiated may be based on the child's statements alone.
             184          (b) Inability to identify or locate the perpetrator may not be used by the division as a basis
             185      for determining that a report is unsubstantiated, or for closing the case.
             186          (c) The division may not determine a case to be unsubstantiated or identify a case as
             187      unsubstantiated solely because the perpetrator was an out-of-home perpetrator.
             188          (d) Decisions regarding whether a report is substantiated, unsubstantiated, or without merit
             189      shall be based on the facts of the case at the time the report was made.
             190          (4) The division should maintain protective custody of the child if it finds that one or more
             191      of the following conditions exist:
             192          (a) the minor has no natural parent, guardian, or responsible relative who is able and
             193      willing to provide safe and appropriate care for the minor;
             194          (b) shelter of the minor is a matter of necessity for the protection of the minor and there
             195      are no reasonable means by which the minor can be protected in his home or the home of a
             196      responsible relative;
             197          (c) there is substantial evidence that the parent or guardian is likely to flee the jurisdiction
             198      of the court; or
             199          (d) the minor has left a previously court ordered placement.
             200          (5) (a) Within 24 hours after receipt of a child into protective custody, excluding weekends
             201      and holidays, the Division of Child and Family Services shall convene a child protection team to
             202      review the circumstances regarding removal of the child from his home, and prepare the testimony
             203      and evidence that will be required of the division at the shelter hearing, in accordance with Section
             204      78-3a-306 .
             205          (b) Members of that team shall include:
             206          (i) the caseworker assigned to the case and the caseworker who made the decision to
             207      remove the child;
             208          (ii) a representative of the school or school district in which the child attends school;
             209          (iii) the peace officer who removed the child from the home;
             210          (iv) a representative of the appropriate Children's Justice Center, if one is established
             211      within the county where the child resides;
             212          (v) if appropriate, and known to the division, a therapist or counselor who is familiar with
             213      the child's circumstances; and


             214          (vi) any other individuals as determined to be appropriate and necessary by the team
             215      coordinator and chair.
             216          (c) At that 24-hour meeting, the division shall have available for review and consideration,
             217      the complete child protective services and foster care history of the child and the child's parents
             218      and siblings.
             219          (6) After receipt of a child into protective custody and prior to the adjudication hearing,
             220      all investigative interviews with the child that are initiated by the division shall be audio or video
             221      taped, and the child shall be allowed to have a support person of the child's choice present. That
             222      support person may not be an alleged perpetrator.
             223          (7) The division shall cooperate with law enforcement investigations regarding the alleged
             224      perpetrator.
             225          (8) The division may not close an investigation solely on the grounds that the division
             226      investigator is unable to locate the child, until all reasonable efforts have been made to locate the
             227      child and family members. Those efforts include:
             228          (a) visiting the home at times other than normal work hours;
             229          (b) contacting local schools;
             230          (c) contacting local, county, and state law enforcement agencies; and
             231          (d) checking public assistance records.
             232          Section 7. Section 62A-4a-205 (Effective 07/01/00) is amended to read:
             233           62A-4a-205 (Effective 07/01/00). Treatment plans.
             234          (1) No more than 45 days after a child enters the temporary custody of the division, the
             235      child's treatment plan shall be finalized.
             236          (2) The division shall use an interdisciplinary team approach in developing each treatment
             237      plan. An interdisciplinary team shall include, but is not limited to, representatives from mental
             238      health, education, and, where appropriate, a representative of law enforcement.
             239          (3) (a) The division shall involve all of the following in the development of a child's
             240      treatment plan:
             241          [(a)] (i) both of the child's natural parents, unless the whereabouts of a parent are
             242      unknown;
             243          [(b)] (ii) the child;
             244          [(c)] (iii) the child's foster parents; and


             245          [(d)] (iv) where appropriate, the child's stepparent.
             246          (b) In relation to all information considered by the division in developing a treatment plan,
             247      additional weight and attention shall be given to the input of the child's natural and foster parents
             248      upon their involvement pursuant to Subsections (3)(a)(i) and (iii).
             249          (4) A copy of the treatment plan shall be provided to the guardian ad litem, and to the
             250      child's natural parents and foster parents immediately upon completion, or as soon as is reasonably
             251      possible thereafter.
             252          (5) Each treatment plan shall specifically provide for the safety of the child, in accordance
             253      with federal law, and clearly define what actions or precautions will, or may be, necessary to
             254      provide for the health, safety, protection, and welfare of the child.
             255          (6) The plan shall set forth, with specificity, at least the following:
             256          (a) the reason the child entered Division of Child and Family Services custody, and
             257      documentation of the reasonable efforts made to prevent placement, or documentation of the
             258      emergency situation that existed and that prevented reasonable efforts;
             259          (b) the primary permanency goal for the child and the reason for selection of that goal;
             260          (c) the concurrent permanency goal for the child and the reason for the selection of that
             261      goal;
             262          (d) if the plan is for the child to return to his family, specifically what the parents must do
             263      in order to enable the child to be returned home, specifically how those requirements may be
             264      accomplished, and how those requirements will be measured;
             265          (e) the specific services needed to reduce the problems that necessitated placement in the
             266      division's custody, and who will provide for and be responsible for case management;
             267          (f) a visitation schedule between the natural parent and the child;
             268          (g) the health care to be provided to the child, and the mental health care to be provided
             269      to address any known or diagnosed mental health needs of the child. If residential treatment, rather
             270      than a foster home, is the proposed placement, a specialized assessment of the child's health needs
             271      shall be conducted, including an assessment of mental illness and behavior and conduct disorders;
             272      and
             273          (h) social summaries that include case history information pertinent to case planning.
             274          (7) (a) [The] Each treatment plan shall be specific to each child and his family, rather than
             275      general. The division shall train its workers to develop treatment plans that comply with federal


             276      mandates and the specific needs of the particular child and his family[;].
             277          (b) [all] All treatment plans and expectations shall be individualized and contain specific
             278      time frames[;].
             279          (c) [treatment] Treatment plans shall address problems that keep children in placement and
             280      keep them from achieving permanence in their lives[; and].
             281          (d) [the] The child's natural parents, foster parents, and where appropriate, stepparents,
             282      shall be kept informed of and supported to participate in important meetings and procedures related
             283      to the child's placement.
             284          (8) With regard to a child who is three years of age or younger, if the goal is not to return
             285      the child home, the permanency plan for that child shall be adoption unless there are documented
             286      extenuating circumstances that justify long-term foster care or guardianship.
             287          Section 8. Section 62A-4a-409 is amended to read:
             288           62A-4a-409. Investigation by division -- Temporary protective custody.
             289          (1) The division shall make a thorough investigation upon receiving either an oral or
             290      written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug dependency, when
             291      there is reasonable cause to suspect a situation of abuse, neglect, fetal alcohol syndrome, or fetal
             292      drug dependency. The primary purpose of that investigation shall be protection of the child.
             293          (2) The investigation may include inquiry into the child's home environment, emotional,
             294      or mental health, nature and extent of injuries, and physical safety.
             295          (3) The division shall make a written report of its investigation. The written report shall
             296      include a determination regarding whether the alleged abuse or neglect was substantiated or
             297      unsubstantiated.
             298          (4) (a) The division shall use an interdisciplinary approach whenever possible in dealing
             299      with reports made under this part.
             300          (b) For this purpose, the division shall convene appropriate interdisciplinary "child
             301      protection teams" to assist it in its protective, diagnostic, assessment, treatment, and coordination
             302      services.
             303          (c) A representative of the division shall serve as the team's coordinator and chair.
             304      Members of the team shall serve at the coordinator's invitation, and whenever possible, the team
             305      shall include representatives of health, mental health, education, law enforcement agencies, and
             306      other appropriate agencies or individuals.


             307          (5) In any case where the division supervises, governs, or directs the affairs of any
             308      individual, institution, or facility that has been alleged to be involved in acts or omissions of child
             309      abuse or neglect, the investigation of the reported child abuse or neglect shall be conducted by an
             310      agency other than the division.
             311          (6) If a report of neglect is based upon or includes an allegation of educational neglect the
             312      division shall immediately consult with school authorities to verify the child's status in accordance
             313      with Sections 53A-11-101 through 53A-11-103 .
             314          (7) When the division has completed its initial investigation under this part, it shall give
             315      notice of that completion to the person who made the initial report.
             316          (8) (a) Division workers or other child protection team members have authority to enter
             317      upon public or private premises, using appropriate legal processes, to investigate reports of alleged
             318      child abuse or neglect.
             319          (b) In cases where a child's welfare will not be endangered, and when the reported or
             320      alleged perpetrator is not a parent or stepparent of the child or a person residing in the same
             321      household as the child, division workers may not interview or question the child without prior
             322      notification and permission of at least one parent of the child.
             323          (9) In accordance with the procedures and requirements of Sections 62A-4a-202.1 through
             324      62A-4a-202.3 and 78-3a-301 , a division worker or child protection team member may take a child
             325      into protective custody, and deliver the child to a law enforcement officer, or place the child in an
             326      emergency shelter facility approved by the juvenile court, at the earliest opportunity subsequent
             327      to the child's removal from its original environment. Control and jurisdiction over the child is
             328      determined by the provisions of Title 78, Chapter 3a, and as otherwise provided by law.
             329          Section 9. Section 78-3a-301 is amended to read:
             330           78-3a-301. Removing a child from his home -- Grounds for removal.
             331          (1) The Division of Child and Family Services may not remove a child from the custody
             332      of his natural parent unless there is substantial cause to believe that any one of the following exist:
             333          (a) there is a substantial danger to the physical health or safety of the minor and the minor's
             334      physical health or safety may not be protected without removing him from his parent's custody.
             335      If a minor has previously been adjudicated as abused, neglected, or dependent, and a subsequent
             336      incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
             337      child cannot safely remain in the custody of his parent;


             338          (b) the minor is suffering emotional damage, as may be indicated by, but not limited to,
             339      extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
             340      and there are no reasonable means available by which the minor's emotional health may be
             341      protected without removing the minor from the custody of his parent;
             342          (c) the minor or another minor residing in the same household has been physically or
             343      sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
             344      a parent, a member of the parent's household, or other person known to the parent. If a parent has
             345      received actual notice that physical or sexual abuse by a person known to the parent has occurred,
             346      and there is evidence that the parent has allowed the child to be in the physical presence of the
             347      alleged abuser, that fact constitutes prima facie evidence that the child is at substantial risk of
             348      being physically or sexually abused;
             349          (d) the parent is unwilling to have physical custody of the child;
             350          (e) the minor has been left without any provision for his support;
             351          (f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
             352      safe and appropriate care for the minor;
             353          (g) a relative or other adult custodian with whom the minor has been left by the parent is
             354      unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
             355      unknown, and reasonable efforts to locate him have been unsuccessful;
             356          (h) the minor is in immediate need of medical care;
             357          (i) the physical environment or the fact that the child is left unattended poses a threat to
             358      the child's health or safety;
             359          (j) the minor or another minor residing in the same household has been neglected;
             360          (k) an infant has been abandoned, as defined in Section 78-3a-313.5 ;
             361          (l) the parent, or an adult residing in the same household as the parent, has been charged
             362      or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
             363      laboratory operation, as defined in Section 58-37d-3 , was located in the residence or on the
             364      property where the child resided; or
             365          (m) the child's welfare is otherwise endangered, as documented by the caseworker.
             366          (2) The Division of Child and Family Services may not remove a minor from the custody
             367      of his natural parent solely on the basis of educational neglect.
             368          (3) The Division of Child and Family Services shall comply with the provisions of Section


             369      62A-4a-202.1 in effecting removal of a child pursuant to this section.
             370          [(3)] (4) (a) A minor removed from the custody of his natural parent under this section may
             371      not be placed or kept in a secure detention facility pending court proceedings unless the minor is
             372      detainable based on guidelines promulgated by the Division of Youth Corrections.
             373          (b) A minor removed from the custody of his natural parent but who does not require
             374      physical restriction shall be given temporary care in a shelter facility.
             375          Section 10. Section 78-3a-306 is amended to read:
             376           78-3a-306. Shelter hearing.
             377          (1) With regard to a child who has been removed by the Division of Child and Family
             378      Services, or who is in the protective custody of the division, a shelter hearing shall be held within
             379      72 hours after removal of the child from his home, excluding weekends and holidays.
             380          (2) Upon removal of a child from his home and receipt of that child into protective
             381      custody, the division shall issue a notice that contains all of the following:
             382          (a) the name and address of the person to whom the notice is directed;
             383          (b) the date, time, and place of the shelter hearing;
             384          (c) the name of the minor on whose behalf a petition is being brought;
             385          (d) a concise statement regarding the reasons for removal, and of the allegations and code
             386      sections under which the proceeding has been instituted;
             387          (e) a statement that the parent or guardian to whom notice is given, and the minor, are
             388      entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
             389      indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
             390      provided; and
             391          (f) a statement that the parent or guardian is liable for the cost of support of the minor in
             392      the protective custody, temporary custody, and custody of the division, and the cost for legal
             393      counsel appointed for the parent or guardian under Subsection (2)(e), according to his financial
             394      ability.
             395          (3) That notice shall be personally served as soon as possible, but [at least 24 hours prior
             396      to the time set for the shelter hearing] no later than 24 hours after removal of a child from his
             397      home, on:
             398          (a) the appropriate guardian ad litem; and
             399          (b) both parents and any guardian of the minor, unless they cannot be located.


             400          (4) The following persons shall be present at the shelter hearing:
             401          (a) the child, unless it would be detrimental for the child;
             402          (b) the child's parents or guardian, unless they cannot be located, or fail to appear in
             403      response to the notice;
             404          (c) counsel for the parents, if one has been requested;
             405          (d) the child's guardian ad litem;
             406          (e) the caseworker from the Division of Child and Family Services who has been assigned
             407      to the case; and
             408          (f) the attorney from the attorney general's office who is representing the division.
             409          (5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's parent
             410      or guardian, if present, and any other person having relevant knowledge, to provide relevant
             411      testimony. The court may also provide an opportunity for the minor to testify.
             412          (b) The court may consider all relevant evidence, in accordance with the Utah Rules of
             413      Juvenile Procedure. The court shall hear relevant evidence presented by the minor, his parent or
             414      guardian, the requesting party, or their counsel, but may in its discretion limit testimony and
             415      evidence to only that which goes to the issues of removal and the child's need for continued
             416      protection.
             417          (6) If the child is in the protective custody of the division, the division shall report to the
             418      court:
             419          (a) the reasons why the minor was removed from the parent's or guardian's custody;
             420          (b) any services provided to the child and his family in an effort to prevent removal;
             421          (c) the need, if any, for continued shelter;
             422          (d) the available services that could facilitate the return of the minor to the custody of his
             423      parent or guardian; and
             424          (e) whether the child has any relatives who may be able and willing to take temporary
             425      custody.
             426          (7) The court may not automatically presume the accuracy of reports or statements made
             427      by the division, but shall give equal weight to all relevant evidence provided by persons or entities
             428      authorized to present relevant evidence pursuant to this section.
             429          [(7)] (8) If necessary to protect the child, preserve the rights of a party, or for other good
             430      cause shown, the court may grant no more than one time-limited continuance, not to exceed five


             431      judicial days.
             432          [(8)] (9) The court shall order that the minor be released from the protective custody of the
             433      division unless it finds, by a preponderance of the evidence, that any one of the following exist:
             434          (a) there is a substantial danger to the physical health or safety of the minor and the minor's
             435      physical health or safety may not be protected without removing him from his parent's custody.
             436      If a minor has previously been adjudicated as abused, neglected, or dependent and a subsequent
             437      incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
             438      child cannot safely remain in the custody of his parent;
             439          (b) the minor is suffering emotional damage, as may be indicated by, but is not limited to,
             440      extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
             441      and there are no reasonable means available by which the minor's emotional health may be
             442      protected without removing the minor from the custody of his parent;
             443          (c) the minor or another minor residing in the same household has been physically or
             444      sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
             445      a parent, a member of the parent's household, or other person known to the parent. If a parent has
             446      received actual notice that physical or sexual abuse by a person known to the parent has occurred,
             447      and there is evidence that the parent has allowed the child to be in the physical presence of the
             448      alleged abuser, that fact constitutes prima facie evidence that the child is at substantial risk of
             449      being physically or sexually abused;
             450          (d) the parent is unwilling to have physical custody of the child;
             451          (e) the minor has been left without any provision for his support;
             452          (f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
             453      safe and appropriate care for the minor;
             454          (g) a relative or other adult custodian with whom the minor has been left by the parent is
             455      unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
             456      unknown, and reasonable efforts to locate him have been unsuccessful;
             457          (h) the minor is in immediate need of medical care;
             458          (i) the physical environment or the fact that the child is left unattended poses a threat to
             459      the child's health or safety;
             460          (j) the minor or another minor residing in the same household has been neglected;
             461          (k) the parent, or an adult residing in the same household as the parent, has been charged


             462      or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
             463      laboratory operation, as defined in Section 58-37d-3 , was located in the residence or on the
             464      property where the child resided; or
             465          (l) the child's welfare is otherwise endangered.
             466          [(9)] (10) (a) The court shall also make a determination on the record as to whether
             467      reasonable efforts were made to prevent or eliminate the need for removal of the minor from his
             468      home and whether there are available services that would prevent the need for continued removal.
             469      If the court finds that the minor can be safely returned to the custody of his parent or guardian
             470      through the provision of those services, it shall place the minor with his parent or guardian and
             471      order that those services be provided by the division.
             472          (b) In making that determination, and in ordering and providing services, the child's health,
             473      safety, and welfare shall be the paramount concern, in accordance with federal law.
             474          [(10)] (11) Where the division's first contact with the family occurred during an emergency
             475      situation in which the child could not safely remain at home, the court shall make a finding that
             476      any lack of preplacement preventive efforts was appropriate.
             477          [(11)] (12) In cases where actual sexual abuse or abandonment, or serious physical abuse
             478      or neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
             479      or to, in any other way, attempt to maintain a child in his home, return a child to his home, provide
             480      reunification services, or attempt to rehabilitate the offending parent or parents.
             481          [(12)] (13) The court may not order continued removal of a minor solely on the basis of
             482      educational neglect as described in Subsection 78-3a-103 (1)(r)(ii).
             483          [(13)] (14) (a) Whenever a court orders continued removal of a minor under this section,
             484      it shall state the facts on which that decision is based.
             485          (b) If no continued removal is ordered and the minor is returned home, the court shall state
             486      the facts on which that decision is based.
             487          [(14)] (15) If the court finds that continued removal and temporary custody are necessary
             488      for the protection of a child because harm may result to the child if he were returned home, it shall
             489      order continued removal regardless of any error in the initial removal of the child, or the failure
             490      of a party to comply with notice provisions, or any other procedural requirement of this chapter
             491      or Title 62A, Chapter 4a, Child and Family Services.
             492          Section 11. Section 78-3a-308 is amended to read:


             493           78-3a-308. Pretrial and adjudication hearing -- Time deadlines.
             494          (1) Upon the filing of a petition, the clerk of the court shall set the pretrial hearing on the
             495      petition within 15 calendar days from the date of the shelter hearing.
             496          (2) The pretrial may be continued upon motion of any party, for good cause shown, but
             497      the final adjudication hearing shall be held no later than [60] 30 calendar days from the date of the
             498      shelter hearing.
             499          Section 12. Effective date.
             500          This act takes effect on May 1, 2000, except that Section 62A-4a-205 takes effect on July
             501      1, 2000.




Legislative Review Note
    as of 1-14-00 2:30 PM


A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


[Bill Documents][Bills Directory]