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Second Substitute H.B. 83
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5 This act modifies provisions of the Judicial Code and the Human Services Code related to
6 child welfare. The act limits immunity for actions by certain child protection employees.
7 This act requires the Division of Child and Family Services to maintain a separate database
8 system for unsubstantiated reports of child abuse and reports of child abuse that are without
9 merit. The act reduces the period of time unsubstantiated reports of child abuse are
10 maintained on the database system from ten years to five years. The act establishes
11 circumstances in which the division shall remove a name from the database. The act clarifies
12 the circumstances in which an officer may use force to remove a child from a home. This act
13 clarifies the conditions that must be met before a child suspected of being abused or a sibling
14 may be removed from the home. The act requires a court to order visitation with a parent
15 at the shelter hearing and at the dispositional hearing unless visitation is not in the best
16 interest of the child. This act includes a coordination clause.
17 This act affects sections of Utah Code Annotated 1953 as follows:
18 AMENDS:
19 62A-4a-116, as last amended by Chapters 304 and 321, Laws of Utah 2000
20 62A-4a-116.5, as last amended by Chapter 304, Laws of Utah 2000
21 78-3a-106, as last amended by Chapters 329 and 365, Laws of Utah 1997
22 78-3a-301, as last amended by Chapter 274, Laws of Utah 2000
23 78-3a-307, as last amended by Chapter 285, Laws of Utah 2000
24 78-3a-311, as last amended by Chapter 121, Laws of Utah 1999
25 ENACTS:
26 62A-4a-105.3, Utah Code Annotated 1953
27 Be it enacted by the Legislature of the state of Utah:
28 Section 1. Section 62A-4a-105.3 is enacted to read:
29 62A-4a-105.3. Limitation of immunity for certain child protection employees.
30 (1) As used in this section, "child protection employee" means:
31 (a) any person employed by the Division of Child and Family Services who provides
32 protective services as defined in Section 62A-4a-101 ; and
33 (b) any person employed by the Division of Child and Family Services who provides
34 services relating to substitute care as defined in Section 62A-4a-101 .
35 (2) Notwithstanding any immunity granted to a child protection employee under Section
36 67-5b-107 and Section 62A-4a-410 , the provisions of this section, and Title 63, Chapter 30, Utah
37 Governmental Immunity Act, govern the immunity of a child protection employee.
38 (3) For purposes of Subsection 63-30-4 (3)(b) and Subsection 63-30-36 (3)(b):
39 (a) "fraud" means an intentional false or material misrepresentation of facts, knowing the
40 facts are not true, or ignoring the truth with the intent that the misrepresentation be relied upon by
41 another person and an act committed within intent to deceive; and
42 (b) "malice" means conduct that constitutes willful and conscious disregard of the rights
43 or safety of others and may include:
44 (i) maliciously failing to disclose known exculpatory evidence;
45 (ii) obtaining evidence by fraud; or
46 (iii) maliciously obtaining evidence by fraud, duress, or undue influence.
47 Section 2. Section 62A-4a-116 is amended to read:
48 62A-4a-116. Management information system -- Requirements.
49 (1) The division shall develop and implement a management information system that
50 meets the requirements of this section and the requirements of federal law and regulation.
51 (2) With regard to all child welfare cases, the management information system shall:
52 (a) provide each caseworker with a complete history of each child in his caseload,
53 including:
54 (i) all past action taken by the division with regard to that child and his siblings, the
55 complete case history and all reports and information in the control or keeping of the division
56 regarding that child and his siblings;
57 (ii) the number of times the child has been in foster care;
58 (iii) the cumulative period of time the child has been in foster care;
59 (iv) all reports of abuse or neglect received by the division with regard to that child's parent
60 or parents, including documentation regarding whether each report was substantiated,
61 unsubstantiated, or without merit;
62 (v) the number of times the child's parent or parents have failed any treatment plan; and
63 (vi) the number of different caseworkers who have been assigned to that child in the past;
64 (b) contain all key elements of each family's current treatment plan, including the dates and
65 number of times the plan has been administratively or judicially reviewed, the number of times the
66 parent or parents have failed that treatment plan, and the exact length of time that treatment plan
67 has been in effect;
68 (c) alert caseworkers regarding deadlines for completion of and compliance with treatment
69 plans; [
70 (d) unless the executive director determines that there is good cause for keeping the report
71 on the system based on standards established by rule, delete any reference to:
72 (i) a report that is without merit if no subsequent report involving the same alleged
73 perpetrator has occurred within one year; or
74 (ii) a report that is unsubstantiated if no subsequent report involving the same alleged
75 perpetrator has occurred within [
76 (e) maintain a separation of reports that are without merit in the system to identify the
77 cases apart form substantiated cases and, where necessary, provide restricted access to the without
78 merit cases.
79 (3) With regard to all child protective services cases, the management information system
80 shall, in addition to the information required in Subsection (2), monitor compliance with the policy
81 of the division, the laws of this state, and federal law and regulation.
82 (4) With regard to all child welfare and protective services cases, the age and date of birth
83 of the alleged perpetrator, at the time the abuse or neglect is alleged to have occurred, shall be
84 included in the management information system.
85 (5) (a) The division shall develop and maintain a part of the information management
86 system for licensing purposes, which shall be:
87 (i) limited to:
88 (A) substantiated findings of child abuse or neglect since January 1, 1988, after notice and
89 an opportunity to challenge has been provided under Section 62A-4a-116.5 ;
90 (B) the name of a person who was not sent a notice of agency action under Section
91 62A-4a-116.5 because his location was not available on the management information system or
92 who was sent a notice of agency action that was returned to the division as undelivered for the sole
93 purpose of alerting the division of the need to afford the person an opportunity to challenge the
94 finding of child abuse or neglect under Section 62A-4a-116.5 before any adverse action, beyond
95 delaying the person's licensing application to provide an opportunity for challenge, may be taken;
96 (C) an adjudication of child abuse or neglect by a court of competent jurisdiction if
97 Subsection 62A-4a-116.5 (5) has been met; and
98 (D) any criminal conviction or guilty plea related to neglect, physical abuse, or sexual
99 abuse of any person; and
100 (ii) accessible by:
101 (A) the Office of Licensing for licensing purposes only;
102 (B) the division:
103 (I) to screen a person at the request of the Office of the Guardian Ad Litem Director,
104 created by Section 78-3a-912 , at the time the person seeks a paid or voluntary position with the
105 Office of the Guardian Ad Litem and each year thereafter that the person remains with the office;
106 and
107 (II) to respond to a request for information from the person who is identified as a
108 perpetrator in the report, after advising the person of the screening prohibition in Subsection
109 (4)(d)(iii);
110 (C) subject to the provisions of Subsection (5)(c), the Bureau of Health Facility Licensure
111 within the Department of Health only for the purpose of licensing a child care program or provider,
112 or for determining whether a person associated with a covered health care facility, as defined by
113 the Department of Health by rule, who provides direct care to a child has a substantiated finding
114 of child abuse or neglect; and
115 (D) the department as provided in Subsection (6) and Section 62A-1-118 .
116 (b) For the purpose of Subsection (5)(a), "substantiated":
117 (i) means a finding that there is a reasonable basis to conclude that:
118 (A) a person 18 years of age or older committed one or more of the following types of
119 child abuse or neglect:
120 (I) physical abuse;
121 (II) sexual abuse;
122 (III) sexual exploitation;
123 (IV) abandonment;
124 (V) medical neglect resulting in death, disability, or serious illness; or
125 (VI) chronic or severe neglect; and
126 (B) a person under the age of 18:
127 (I) caused serious physical injury, as defined in Subsection 76-5-109 (1)(d), to another child
128 which indicates a significant risk to other children; or
129 (II) engaged in sexual behavior with or upon another child which indicates a significant
130 risk to other children; and
131 (ii) does not include:
132 (A) the use of reasonable and necessary physical restraint or force by an educator in
133 accordance with Subsection 53A-11-802 (2) or Section 76-2-401 ; or
134 (B) a person's conduct that:
135 (I) is justified under Section 76-2-401 ; or
136 (II) constituted the use of reasonable and necessary physical restraint or force in
137 self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or
138 other dangerous object in the possession or under the control of a child or to protect the child or
139 another person from physical injury.
140 (iii) (A) For purposes of Subsection (5)(b)(i)(B), "significant risk" shall be determined in
141 accordance with risk assessment tools and policies established by the division that focus on age,
142 social factors, emotional factors, sexual factors, intellectual factors, family risk factors, and other
143 related considerations.
144 (B) The division shall train its child protection workers to apply the risk assessment tools
145 and policies established under Subsection (5)(b)(iii)(A).
146 (c) (i) The Department of Health shall:
147 (A) designate[
148 part of the management information system; and
149 (B) adopt measures to:
150 (I) protect the security of the licensing part of the management information system; and
151 (II) strictly limit access to the licensing part of the management information system to
152 those designated under Subsection (5)(c)(i)(A).
153 (ii) Those designated under Subsection (5)(c)(i)(A) shall receive training from the
154 department with respect to:
155 (A) accessing the licensing part of the management information system;
156 (B) maintaining strict security; and
157 (C) the criminal provisions in Section 62A-4a-412 for the improper release of information.
158 (iii) Those designated under Subsection (5)(c)(i)(A):
159 (A) are the only ones in the Department of Health with the authority to access the licensing
160 part of the management information system; and
161 (B) may only access the licensing part of the management information system in
162 accordance with the provisions of Subsection (5)(a)(ii).
163 (iv) The Department of Health may obtain information in the possession of the division
164 that relates to a substantiated finding of abuse or neglect of a person screened under this
165 Subsection (5)(c).
166 (d) (i) Information in the licensing part of the management information system is
167 confidential and may only be used or disclosed as specifically provided in this section, Section
168 62A-2-121 , and Section 62A-4a-116.5 .
169 (ii) No person, unless listed in Subsection (5)(a)(ii), may request another person to obtain
170 or release a report or any other information in the possession of the division obtained as a result
171 of the report that is available under Subsection (5)(a)(ii)(A)(III) to screen for potential perpetrators
172 of child abuse or neglect.
173 (iii) A person who requests information knowing that it is a violation of Subsection
174 (5)(d)(ii) to do so is subject to the criminal penalty in Section 62A-4a-412 .
175 (6) All information contained in the management information system shall be available
176 to the department upon the approval of the executive director, on a need-to-know basis.
177 (7) (a) The division may allow its contract providers to have limited access to the
178 management information system. The division shall limit that access to information about persons
179 who are currently receiving services from the specific contract provider.
180 (b) Each contract provider shall:
181 (i) take all necessary precautions to safeguard the security of the information contained in
182 the management information system;
183 (ii) train its employees regarding requirements for confidentiality and the criminal
184 penalties under Sections 62A-4a-412 and 63-2-801 for improper release of information; and
185 (iii) monitor its employees to ensure that they comply with the confidentiality requirements
186 related to the management information system.
187 (c) The division shall take reasonable precautions to ensure that its contract providers are
188 complying with Subsection (7)(b).
189 (8) The division shall take all necessary precautions, including password protection and
190 other appropriate technological techniques, to prevent unauthorized access to the information
191 contained in the management information system.
192 (9) (a) The division shall send a certified letter to a person who submitted a report of child
193 abuse or neglect that is put onto any part of the management information system if the division
194 determines, at the conclusion of its investigation, that:
195 (i) the report is false;
196 (ii) it is more likely than not that the person knew that the report was false at the time the
197 person submitted the report; and
198 (iii) the person's address is known or reasonably available.
199 (b) The letter shall inform the person of:
200 (i) the determination made under Subsection (9)(a);
201 (ii) the penalty for submitting false information under Section 76-8-506 and other
202 applicable laws;
203 (iii) the obligation of the division to inform law enforcement and the alleged perpetrator:
204 (A) in the present instance if an immediate referral is justified by the facts; or
205 (B) if the person submits a subsequent false report involving the same alleged perpetrator
206 or victim.
207 (c) (i) The division may inform law enforcement and the alleged perpetrator of a report for
208 which a letter is required to be sent under Subsection (9)(a) if an immediate referral is justified by
209 the facts.
210 (ii) The division shall inform law enforcement and the alleged perpetrator of a report for
211 which a letter is required to be sent under Subsection (9)(a) if this is the second letter sent to the
212 person involving the same alleged perpetrator or victim.
213 (iii) The division shall determine, in consultation with law enforcement:
214 (A) the information to be given to an alleged perpetrator about a false claim; and
215 (B) whether good cause exists, as defined by rule, for not informing an alleged perpetrator
216 about a false claim.
217 (d) Nothing in this Subsection (9) may be construed as requiring the division to conduct
218 an investigation, beyond what is required in Subsection (9)(a), to determine whether or not a report
219 is false.
220 Section 3. Section 62A-4a-116.5 is amended to read:
221 62A-4a-116.5. Opportunity to challenge a finding of child abuse or neglect.
222 (1) (a) The division shall send a notice of agency action to a person if the division finds,
223 at the conclusion of an investigation, that, in the opinion of the division, there is a reasonable basis
224 to conclude that the person committed abuse or neglect listed in Subsection 62A-4a-116 (5)(b)(i).
225 In the event that the person is under the age of 18, the division shall:
226 (i) make reasonable efforts to identify the person's parent or legal guardian; and
227 (ii) send a notice to each parent or legal guardian identified under Subsection (1)(a)(i) that
228 lives at a different address unless there is good cause, as defined by rule, for not sending a notice
229 to a parent or legal guardian.
230 (b) For purposes of this section only, which governs the right of a person to challenge the
231 division's initial finding or opinion of abuse or neglect as it pertains to the licensing part of the
232 management information system, the division shall refer to a finding under Subsection (1)(a) as
233 a "finding" or an "initial finding" of abuse or neglect when notifying or explaining a notification
234 to a person.
235 (c) Nothing in this section may be construed as affecting:
236 (i) the manner in which the division conducts an investigation; or
237 (ii) the use or effect, in any other setting, of:
238 (A) an initial division finding or substantiation of child abuse or neglect at the completion
239 of an investigation for any purpose other than for notification under Subsection (1)(b); or
240 (B) the term "substantiated" as used in any other provision of the code.
241 (2) The notice shall state:
242 (a) that the division conducted an investigation;
243 (b) that the division found, at the conclusion of the investigation, that there was, in the
244 opinion of the division, a reasonable basis to conclude that abuse or neglect occurred;
245 (c) the facts that support the finding;
246 (d) that the person may be disqualified from adopting a child or working for or being
247 licensed by:
248 (i) the department;
249 (ii) a human services licensee;
250 (iii) a child care provider or program; and
251 (iv) a covered health care facility;
252 (e) that the person has the right to request:
253 (i) a copy of the report; and
254 (ii) an opportunity to challenge the finding and its inclusion on the licensing part of the
255 management information system described in Subsection 62A-4a-116 (5), except as provided in
256 Subsection (5)(b); and
257 (f) that failure to request an opportunity to challenge the finding within 30 days of the
258 notice being received will result in an unappealable finding of substantiation of child abuse or
259 neglect, unless the person can show good cause for why compliance within the 30-day requirement
260 was virtually impossible or unreasonably burdensome.
261 (3) (a) A person may make a request to challenge a finding within 30 days of:
262 (i) a notice being received under Subsection (2);
263 (ii) a finding by a court of competent jurisdiction based on the same underlying facts that:
264 (A) child abuse or neglect, as described in Subsection 62A-4a-116 (5)(b), did not occur;
265 or
266 (B) the person was not responsible for the child abuse or neglect that did occur; or
267 (iii) the dismissal of criminal charges or a verdict of not guilty based on the same
268 underlying facts.
269 (b) The 30-day requirement of Subsection (3)(a) shall be extended for good cause shown
270 that compliance was virtually impossible or unreasonably burdensome.
271 (c) The division may approve or deny a request made under Subsection (3)(a).
272 (d) If the division denies the request or fails to act within 30 days after receiving a request
273 submitted under Subsection (3)(a), the Office of Administrative Hearings shall hold an
274 adjudicative proceeding pursuant to Title 63, Chapter 46b, Administrative Procedures Act.
275 (4) (a) In an adjudicative proceeding held pursuant to Subsection (3)(d), the division shall
276 prove by a preponderance of the evidence that there is a reasonable basis to conclude that:
277 (i) child abuse or neglect, as described in Subsection 62A-4a-116 (5)(b), occurred; and
278 (ii) the person was substantially responsible for the abuse or neglect that occurred.
279 (b) The administrative hearing officer may make a determination of substantiation based
280 solely on the out-of-court statement of the child that the officer finds to be reliable under the
281 standards set forth in:
282 (i) Section 76-5-411 ;
283 (ii) Utah Rules of Criminal Procedure, Rule 15.5;
284 (iii) Section 78-3a-116 (5);
285 (iv) the Utah Rules of Evidence; or
286 (v) Utah case law.
287 (5) (a) [
288 challenge a finding under Subsection (3)(a), if, at anytime, a court of competent jurisdiction has
289 made a determination based on the same underlying facts that:
290 (i) child abuse or neglect, as described in Subsection 62A-4a-116 (5)(b), occurred;
291 (ii) the person was substantially responsible for the abuse or neglect that occurred; and
292 (iii) the person:
293 (A) was a party to the proceeding; or
294 (B) (I) had notice of the proceeding; and
295 (II) was provided a meaningful opportunity to challenge the facts underlying the court's
296 determination.
297 (b) The division shall remove a person's name from the database unless the division
298 provides new notice under Subsection (1)(a) and an opportunity to be heard under Subsection
299 (3)(a) when the court of competent jurisdiction:
300 (i) enters a finding of not guilty;
301 (ii) dismisses the information or indictment after compliance with the requirements of a
302 diversion agreement under Section 77-2-6 ; or
303 (iii) dismisses the case or withdraws a plea under Section 77-2a-3 after the completion of
304 a plea in abeyance agreement for a plea of no contest.
305 [
306 the time a judicial action is pending.
307 (6) Nothing in this section may affect the inclusion or exclusion of a report or finding of
308 child abuse or neglect from or access by the division, its caseworkers, and child protective services
309 workers to that part of the management information system used for purposes of child welfare
310 cases and child protective services as described in Subsections 62A-4a-116 (2) and (3).
311 (7) By December 31, 1998, the division shall provide notice to each person with a finding
312 of abuse or neglect since January 1, 1994.
313 (8) A person who, after receiving notice, fails to challenge a finding of child abuse or
314 neglect may request the opportunity to challenge the finding under this section:
315 (a) if since the time that the person received notice, state law has been amended to permit
316 a broader use of or access to information on the licensing part of the management information
317 system; and
318 (b) before the finding may be used against the person in connection with the broader use
319 or access.
320 Section 4. Section 78-3a-106 is amended to read:
321 78-3a-106. Search warrants and subpoenas -- Authority to issue.
322 (1) The court has authority to issue search warrants, subpoenas, or investigative subpoenas
323 in criminal cases, delinquency, and abuse, neglect, and dependency proceedings for the same
324 purposes, in the same manner and pursuant to the same procedures set forth in the code of criminal
325 procedure for the issuance of search warrants, subpoenas, or investigative subpoenas in other trial
326 courts in the state.
327 (2) (a) If it appears to the court upon an affidavit sworn to by a peace officer or any other
328 person, and upon the examination of other witnesses, if required by the judge, that there is probable
329 cause to believe that a child is being ill-treated by his parent, guardian, or custodian, or is being
330 detained, ill-treated, or harbored against the desires of his parent, guardian, or custodian, in any
331 place within the jurisdiction of the court, the court may issue a warrant authorizing a peace officer
332 to search for the child.
333 (b) [
334 or premises by force, if necessary, in order to remove the child.
335 (c) The officer shall then take the child to the place of shelter designated by the court.
336 Section 5. Section 78-3a-301 is amended to read:
337 78-3a-301. Removing a child from his home -- Grounds for removal.
338 (1) The Division of Child and Family Services may not remove a child from the custody
339 of his natural parent unless the division complies with the provisions of Title 62A, Chapter 4a,
340 Child and Family Services, including Subsections 62A-4a-103 (2)(b) and 62A-4a-201 (3), and
341 unless there is substantial cause to believe that any one of the following exist:
342 (a) (i) there is a substantial danger to the physical health or safety of the minor and the
343 minor's physical health or safety may not be protected without removing him from his parent's
344 custody.
345 (ii) If a minor has previously been adjudicated as abused, neglected, or dependent, and a
346 subsequent incident of abuse, neglect, or dependency [
347 alleged abuser and under similar circumstance as the previous abuse, that fact constitutes prima
348 facie evidence that the child cannot safely remain in the custody of his parent;
349 (b) a parent engages in or threatens the child with unreasonable conduct that causes the
350 minor [
351
352 and there are no reasonable means available by which the minor's emotional health may be
353 protected without removing the minor from the custody of his parent;
354 (c) (i) the minor or another minor residing in the same household has been physically or
355 sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
356 a parent, a member of the parent's household, or other person known to the parent.
357 (ii) For purposes of this Subsection (1)(c), another minor residing in the same household
358 may not be removed from the home unless that minor is deemed to be at substantial risk of being
359 physically or sexually abused as described in Subsections (1)(c)(i) and (iii).
360 (iii) If a parent has received actual notice that physical or sexual abuse by a person known
361 to the parent has occurred, and there is evidence that the parent [
362 child by allowing the child to be in the physical presence of the alleged abuser, that fact constitutes
363 prima facie evidence that the child is at substantial risk of being physically or sexually abused;
364 (d) the parent is unwilling to have physical custody of the child;
365 (e) the minor has been left without any provision for his support;
366 (f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
367 safe and appropriate care for the minor;
368 (g) a relative or other adult custodian with whom the minor has been left by the parent is
369 unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
370 unknown, and reasonable efforts to locate him have been unsuccessful;
371 (h) the minor is in immediate need of urgent medical care;
372 (i) [
373
374 (B) a parent intentionally leaves a child unattended which poses a threat to the child's
375 health or safety;
376 (j) (i) the minor or another minor residing in the same household has been neglected; and
377 (ii) for purposes of Subsection (j)(i), another minor residing in the same household may
378 not be removed unless that minor is deemed to be at substantial risk of being neglected;
379 (k) an infant has been abandoned, as defined in Section 78-3a-313.5 ; or
380 (l) the parent, or an adult residing in the same household as the parent, has been charged
381 or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
382 laboratory operation, as defined in Section 58-37d-3 , was located in the residence or on the
383 property where the child resided[
384 [
385 (2) The Division of Child and Family Services may not remove a minor from the custody
386 of his [
387 (3) The Division of Child and Family Services may not remove a minor from the custody
388 of his parent solely on the basis of mental illness of the parent in the absence of one of the factors
389 described in Subsection (1).
390 [
391 Section 62A-4a-202.1 in effecting removal of a child pursuant to this section.
392 [
393 not be placed or kept in a secure detention facility pending court proceedings unless the minor is
394 detainable based on guidelines promulgated by the Division of Youth Corrections.
395 (b) A minor removed from the custody of his natural parent but who does not require
396 physical restriction shall be given temporary care in a shelter facility.
397 Section 6. Section 78-3a-307 is amended to read:
398 78-3a-307. Shelter hearing -- Placement with a noncustodial parent or relative --
399 DCFS custody.
400 (1) (a) At the shelter hearing, when the court orders that a child be removed from the
401 custody of his parent in accordance with the requirements of Section 78-3a-306 , the court shall
402 first determine whether there is another natural parent as defined in Subsection (1)(b), with whom
403 the child was not residing at the time the events or conditions that brought him within the court's
404 jurisdiction occurred, who desires to assume custody of the child. If that parent requests custody,
405 the court shall place the minor with that parent unless it finds that the placement would be unsafe
406 or otherwise detrimental to the child. The provisions of this Subsection (1) are limited by the
407 provisions of Subsection (8)(b).
408 (b) Notwithstanding the provisions of Section 78-3a-103 , for purposes of this section
409 "natural parent" includes only a biological or adoptive mother, an adoptive father, or a biological
410 father who was married to the child's biological mother at the time the child was conceived or
411 born, or who has strictly complied with the provisions of Section 78-30-4.14 prior to removal of
412 the child or voluntary surrender of the child by the custodial parent. This definition applies
413 regardless of whether the child has been or will be placed with adoptive parents or whether
414 adoption has been or will be considered as a long term goal for the child.
415 (c) (i) The court shall make a specific finding regarding the fitness of that parent to assume
416 custody, and the safety and appropriateness of the placement.
417 (ii) The court shall, at a minimum, order the division to visit the parent's home, perform
418 criminal background checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , and check the
419 division's management information system for any previous reports of abuse or neglect received
420 by the division regarding the parent at issue.
421 (iii) The court may order the Division of Child and Family Services to conduct any further
422 investigation regarding the safety and appropriateness of the placement.
423 (iv) The division shall report its findings in writing to the court.
424 (v) The court may place the child in the temporary custody of the division, pending its
425 determination regarding that placement.
426 (2) If the court orders placement with a parent under Subsection (1), the child and the
427 parent are under the continuing jurisdiction of the court. The court may order that the parent
428 assume custody subject to the supervision of the court, and order that services be provided to the
429 parent from whose custody the child was removed, the parent who has assumed custody, or both.
430 The court [
431 the child was removed, [
432 order shall be periodically reviewed to determine whether:
433 (a) placement with the parent continues to be in the child's best interest;
434 (b) the child should be returned to the original custodial parent;
435 (c) the child should be placed with a relative, pursuant to Subsection (5); or
436 (d) the child should be placed in the custody of the division.
437 (3) The time limitations described in Section 78-3a-311 with regard to reunification
438 efforts, apply to children placed with a previously noncustodial parent in accordance with
439 Subsection (1).
440 (4) Legal custody of the child is not affected by an order entered under Subsection (1) or
441 (2). In order to affect a previous court order regarding legal custody, the party must petition that
442 court for modification of the order.
443 (5) (a) If, at the time of the shelter hearing, a child is removed from the custody of his
444 parent and is not placed in the custody of his other parent, the court shall, at that time, determine
445 whether there is a relative who is able and willing to care for the child. The court may order the
446 Division of Child and Family Services to conduct a reasonable search to determine whether there
447 are relatives of the child who are willing and appropriate, in accordance with the requirements of
448 this part and Title 62A, Chapter 4a, Part 2, Child Welfare Services, for placement of the child. The
449 court shall order the parents to cooperate with the division, within five working days, to provide
450 information regarding relatives who may be able and willing to care for the child. The child may
451 be placed in the temporary custody of the division pending that determination. This section may
452 not be construed as a guarantee that an identified relative will receive custody of the child.
453 However, preferential consideration may be given to a relative's request for placement of the child,
454 if it is in the best interest of the child, and the provisions of this section are satisfied.
455 (b) (i) If a willing relative is identified pursuant to Subsection (5)(a), the court shall make
456 a specific finding regarding the fitness of that relative to assume custody, and the safety and
457 appropriateness of placement with that relative. In order to be considered a "willing relative"
458 under this section, the relative shall be willing to cooperate if the child's permanency goal is
459 reunification with his parent or parents, and be willing to adopt or take permanent custody of the
460 child if that is determined to be in the best interest of the child.
461 (ii) The court shall, at a minimum, order the division to conduct criminal background
462 checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , visit the relative's home, check the
463 division's management information system for any previous reports of abuse or neglect regarding
464 the relative at issue, report its findings in writing to the court, and provide sufficient information
465 so that the court may determine whether:
466 (A) the relative has any history of abusive or neglectful behavior toward other children that
467 may indicate or present a danger to this child;
468 (B) the child is comfortable with the relative;
469 (C) the relative recognizes the parent's history of abuse and is determined to protect the
470 child;
471 (D) the relative is strong enough to resist inappropriate requests by the parent for access
472 to the child, in accordance with court orders;
473 (E) the relative is committed to caring for the child as long as necessary; and
474 (F) the relative can provide a secure and stable environment for the child.
475 (iii) The court may order the Division of Child and Family Services to conduct any further
476 investigation regarding the safety and appropriateness of the placement.
477 (iv) The division shall complete and file its assessment regarding placement with a relative
478 as soon as practicable, in an effort to facilitate placement of the child with a relative.
479 (c) The court may place the child in the temporary custody of the division, pending the
480 division's investigation pursuant to Subsection (5)(b), and the court's determination regarding that
481 placement. The court shall ultimately base its determination regarding placement with a relative
482 on the best interest of the child.
483 (d) For purposes of this section, "relative" means an adult who is a grandparent, great
484 grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, first
485 cousin, stepsibling, or sibling of the child. In the case of a child defined as an "Indian" under the
486 Indian Child Welfare Act, 25 U.S.C. Section 1903, "relative" also means an "extended family
487 member" as defined by that statute.
488 (6) (a) When the court vests physical custody of a child with a relative pursuant to
489 Subsection (5), it shall order that the relative assume custody subject to the continuing supervision
490 of the court, and shall order that any necessary services be provided to the minor and the relative.
491 That child is not within the temporary custody or custody of the Division of Child and Family
492 Services. The child and any relative with whom the child is placed are under the continuing
493 jurisdiction of the court. The court may enter any order that it considers necessary for the
494 protection and best interest of the child. The court shall provide for reasonable visitation with the
495 parent or parents from whose custody the child was removed unless visitation is not in the best
496 interest of the child.
497 (b) (i) Placement with a relative pursuant to Subsection (5) shall be periodically reviewed
498 by the court, no less often than every six months, to determine whether:
499 (A) placement with the relative continues to be in the child's best interest;
500 (B) the child should be returned home; or
501 (C) the child should be placed in the custody of the division.
502 (ii) No later than 12 months after placement with a relative the court shall schedule a
503 hearing for the purpose of entering a permanent order in accordance with the best interest of the
504 child.
505 (iii) The time limitations described in Section 78-3a-311 , with regard to reunification
506 efforts, apply to children placed with a relative pursuant to Subsection (5).
507 (7) When the court orders that a child be removed from the custody of his parent and does
508 not vest custody in another parent or relative under this section, the court shall order that the child
509 be placed in the temporary custody of the Division of Child and Family Services, to proceed to
510 adjudication and disposition and to be provided with care and services in accordance with this
511 chapter and Title 62A, Chapter 4a, Child and Family Services.
512 (8) (a) Any preferential consideration that a relative may be initially granted pursuant to
513 Subsection (5) expires 120 days from the date of the shelter hearing. After that time period has
514 expired, a relative who has not obtained custody or asserted an interest in a child, may not be
515 granted preferential consideration by the division or the court.
516 (b) When the time period described in Subsection (8)(a) has expired, the preferential
517 consideration which may initially be granted to a natural parent in accordance with Subsection (1),
518 is limited. After that time the court shall base its custody decision on the best interest of the child.
519 Section 7. Section 78-3a-311 is amended to read:
520 78-3a-311. Dispositional hearing -- Reunification services -- Exceptions.
521 (1) The court may make any of the dispositions described in Section 78-3a-118 , place the
522 child in the custody or guardianship of any individual or public or private entity or agency, order
523 protective supervision, family preservation, medical or mental health treatment, or other services.
524 (2) (a) (i) Whenever the court orders continued removal at the dispositional hearing, and
525 that the minor remain in the custody of the Division of Child and Family Services, it shall first
526 establish a primary permanency goal for the minor and determine whether, in view of the primary
527 permanency goal, reunification services are appropriate for the child and the child's family,
528 pursuant to Subsection (3).
529 (ii) When the court determines that reunification services are appropriate for the child and
530 the child's family, the court shall provide for reasonable visitation with the parent or parents from
531 whose custody the child was removed, unless visitation is not in the best interest of the child.
532 (iii) In cases where obvious sexual abuse, abandonment, or serious physical abuse or
533 neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
534 or to, in any other way, attempt to provide reunification services, or to attempt to rehabilitate the
535 offending parent or parents. In all cases, the child's health, safety, and welfare shall be the court's
536 paramount concern in determining whether reasonable efforts to reunify should be made.
537 (b) (i) In addition to the primary permanency goal, the court shall establish a concurrent
538 permanency goal. The concurrent permanency goal shall include a representative list of the
539 conditions under which the primary permanency goal will be abandoned in favor of the concurrent
540 permanency goal and an explanation of the effect of abandoning or modifying the primary
541 permanency goal.
542 (ii) A permanency hearing shall be conducted in accordance with Subsection
543 78-3a-312 (1)(b) within 30 days if something other than reunification is initially established as a
544 child's primary permanency goal.
545 (iii) The court may amend a child's primary permanency goal before the establishment of
546 a final permanency plan under Section 78-3a-312 . The court is not limited to the terms of the
547 concurrent permanency goal in the event that the primary permanency goal is abandoned. If, at
548 anytime, the court determines that reunification is no longer a child's primary permanency goal,
549 the court shall conduct a permanency hearing in accordance with Section 78-3a-312 within the
550 earlier of 30 days of the court's determination or 12 months from the original removal of the child.
551 (c) If the court determines that reunification services are appropriate, it shall order that the
552 division make reasonable efforts to provide services to the minor and his parent for the purpose
553 of facilitating reunification of the family, for a specified period of time. In providing those
554 services, the child's health, safety, and welfare shall be the division's paramount concern, and the
555 court shall so order. The time period for reunification services may not exceed 12 months from
556 the date that the child was initially removed from his home. Nothing in this section may be
557 construed to entitle any parent to an entire 12 months of reunification services. If reunification
558 services have been ordered, the court may terminate those services at any time. If, at any time,
559 continuation of reasonable efforts to reunify a child is determined to be inconsistent with the final
560 permanency plan for the child established pursuant to Subsection 78-3a-312 , then measures shall
561 be taken, in a timely manner, to place the child in accordance with the permanency plan, and to
562 complete whatever steps are necessary to finalize the permanent placement of the child.
563 (d) Any physical custody of the minor by the parent or a relative during the period
564 described in Subsection (2)(c) does not interrupt the running of the period.
565 (e) (i) If reunification services have been ordered, a permanency hearing shall be
566 conducted by the court in accordance with Section 78-3a-312 at the expiration of the time period
567 for reunification services. The permanency hearing shall be held no later than 12 months after the
568 original removal of the child.
569 (ii) If reunification services have not been ordered, a permanency hearing shall be
570 conducted within 30 days, in accordance with Section 78-3a-312 .
571 (f) With regard to a child who is two years of age or younger at the time the court orders
572 reunification services, the court shall order the discontinuance of those services after six months
573 if the parent or parents have not made substantial efforts to comply with the treatment plan. The
574 burden is upon the parents, and the division if it supports continued reunification services, to show
575 that the parents have made substantial efforts to comply with the plan during the first six months
576 of reunification services.
577 (g) With regard to a child in the custody of the division whose parent or parents have been
578 ordered to receive reunification services but who have abandoned that child for a period of six
579 months since the date that reunification services were ordered, the court shall terminate
580 reunification services, and the division shall petition the court for termination of parental rights.
581 (3) (a) Because of the state's interest in and responsibility to protect and provide
582 permanency for children who are abused, neglected, or dependent, the Legislature finds that a
583 parent's interest in receiving reunification services is limited. The court may[
584
585 appropriate, based on the individual circumstances, and that reunification services should not be
586 provided. In determining "reasonable efforts" to be made with respect to a child, and in making
587 "reasonable efforts," the child's health, safety, and welfare shall be the paramount concern.
588 (b) There is a presumption that reunification services should not be provided to a parent
589 if the court finds, by clear and convincing evidence, that any of the following circumstances exist:
590 (i) the whereabouts of the parents are unknown, based upon a verified affidavit indicating
591 that a reasonably diligent search has failed to locate the parent;
592 (ii) the parent is suffering from a mental illness of such magnitude that it renders him
593 incapable of utilizing reunification services; that finding shall be based on competent evidence
594 from mental health professionals establishing that, even with the provision of services, the parent
595 is unlikely to be capable of adequately caring for the child within 12 months;
596 (iii) the minor has been previously adjudicated as an abused child due to physical or sexual
597 abuse, that following the adjudication the child was removed from the custody of his parent, was
598 subsequently returned to the custody of that parent, and the minor is being removed due to
599 additional physical or sexual abuse;
600 (iv) the parent has caused the death of another child through abuse or neglect or has
601 committed, aided, abetted, attempted, conspired, or solicited to commit murder or manslaughter
602 of a child or child abuse homicide;
603 (v) the minor has suffered severe abuse by the parent or by any person known by the
604 parent, if the parent knew or reasonably should have known that the person was abusing the minor;
605 (vi) the minor has been adjudicated an abused child as a result of severe abuse by the
606 parent, and the court finds that it would not benefit the child to pursue reunification services with
607 the offending parent;
608 (vii) the parent's rights have been terminated with regard to any other child;
609 (viii) the child has been removed from his home on at least two previous occasions and
610 reunification services were offered or provided to the family at those times; or
611 (ix) the parent has abandoned the child for a period of six months or longer; or
612 (x) any other circumstance that the court determines should preclude reunification efforts
613 or services.
614 (4) (a) Failure of the parent to respond to previous services or comply with any previous
615 treatment plan, the fact that the child was abused while the parent was under the influence of drugs
616 or alcohol, a past history of violent behavior, whether a parent continues to live with an individual
617 who abused the child, any patterns of the parent's behavior that have exposed the child to repeated
618 abuse, or testimony by a competent professional that the parent's behavior is unlikely to be
619 successful, shall be considered in determining whether reunification services are appropriate.
620 (b) The court shall also consider whether the parent has expressed an interest in
621 reunification with the child, in determining whether reunification services are appropriate.
622 (5) If reunification services are not ordered pursuant to Subsection (3)(a), and the
623 whereabouts of a parent become known within six months of the out-of-home placement of the
624 minor, the court may order the division to provide reunification services. The time limits
625 described in Subsection (2), however, are not tolled by the parent's absence.
626 (6) If a parent is incarcerated or institutionalized, the court shall order reasonable services
627 unless it determines that those services would be detrimental to the minor. In determining
628 detriment, the court shall consider the age of the child, the degree of parent-child bonding, the
629 length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of
630 detriment to the child if services are not offered and, for minors ten years of age or older, the
631 minor's attitude toward the implementation of family reunification services, and any other
632 appropriate factors. Reunification services for an incarcerated parent are subject to the 12-month
633 limitation imposed in Subsection (2). Reunification services for an institutionalized parent are
634 subject to the 12-month limitation imposed in Subsection (2), unless the court determines that
635 continued reunification services would be in the child's best interest.
636 (7) If, pursuant to Subsection (3)(b)(ii), (iii), (iv),(v), (vi), (vii), (viii), (ix), or (x), the court
637 does not order reunification services, a permanency hearing shall be conducted within 30 days, in
638 accordance with Section 78-3a-312 .
639 Section 8. Coordination clause.
640 If this bill and S.B. 165, Noncustodial Visitation, both pass, it is the intent of the
641 Legislature that the amendments in S.B. 165 which change the term "visitation" to "parent time"
642 supersede the amendments in Subsections 78-3a-307 (2) and (6) and Subsection 78-3a-311 (2) of
643 this bill which use the current statutory term "visitation".
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