First Substitute S.B. 64

Senator Terry R. Spencer proposes to substitute the following bill:

1 ADOPTION LAW AMENDMENTS
2 2001 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Terry R. Spencer
5 This act modifies the Termination of Parental Rights Act and the Adoption Act. The act
6 modifies those who are authorized to take consents or relinquishments. The act amends the
7 Adoption Act to require a father to file an executed voluntary declaration of paternity with
8 the state registrar of vital statistics as required by the Voluntary Declaration of Paternity
9 Act. The act clarifies that a notice of the commencement of paternity proceedings is
10 considered filed when the notice is entered in the registry of notices from unmarried
11 biological fathers. The act designates background check requirements for prospective
12 adoptive parents who are not residents of Utah. The act provides that licensed experts in
13 family relations of the state where prospective adoptive parents reside may conduct
14 preplacement evaluations. The act expands the jurisdiction of Utah courts to allow a family
15 to finalize an adoption in the Utah district court where a child was born. The act makes
16 technical changes.
17 This act affects sections of Utah Code Annotated 1953 as follows:
18 AMENDS:
19 78-3a-414, as last amended by Chapter 161, Laws of Utah 2000
20 78-30-3.5, as last amended by Chapter 21, Laws of Utah 1999
21 78-30-4.14, as enacted by Chapter 168, Laws of Utah 1995
22 78-30-7, as last amended by Chapter 10, Laws of Utah 1997
23 ENACTS:
24 78-30-3.6, Utah Code Annotated 1953
25 Be it enacted by the Legislature of the state of Utah:

26 Section 1. Section 78-3a-414 is amended to read:
27 78-3a-414. Voluntary relinquishment -- Irrevocable.
28 (1) Voluntary relinquishment or consent for termination of parental rights shall be signed
29 or confirmed under oath either:
30 (a) before a judge of any court that has jurisdiction over proceedings for termination of
31 parental rights in this state or any other state, or a public officer appointed by that court for the
32 purpose of taking consents or relinquishments[.]; or
33 (b) except as provided in Subsection (2), any person authorized to take consents or
34 relinquishments under Subsections 78-30-4.18 (1) and (2).
35 (2) Only the juvenile court is authorized to take consents or relinquishments from a parent
36 who has any child who is in the custody of a state agency or who has a child who is otherwise
37 under the jurisdiction of the juvenile court.
38 [(2)] (3) The court [or], appointed officer, or other authorized person shall certify to the
39 best of that person's information and belief that the person executing the consent or relinquishment
40 has read and understands the consent or relinquishment and has signed it freely and voluntarily.
41 [(3)] (4) A voluntary relinquishment or consent for termination of parental rights is
42 effective when it is signed and may not be revoked.
43 [(4)] (5) The requirements and processes described in Sections 78-3a-402 through
44 78-3a-410 do not apply to a voluntary relinquishment or consent for termination of parental rights.
45 The court need only find that the relinquishment or termination is in the child's best interest.
46 [(5)] (6) There is a presumption that voluntary relinquishment or consent for termination
47 of parental rights is not in the child's best interest where it appears to the court that the primary
48 purpose is to avoid a financial support obligation. The presumption may be rebutted, however, if
49 the court finds the relinquishment or consent to termination of parental rights will facilitate the
50 establishment of stability and permanency for the child.
51 [(6)] (7) Upon granting a voluntary relinquishment the court may make orders relating to
52 the child's care and welfare that the court considers to be in the child's best interest.
53 Section 2. Section 78-30-3.5 is amended to read:
54 78-30-3.5. Preplacement and postplacement adoptive evaluations -- Exceptions.
55 (1) (a) Except as otherwise provided in this section, a child may not be placed in an
56 adoptive home until a preplacement adoptive evaluation, assessing the prospective adoptive parent

57 and the prospective adoptive home, has been conducted in accordance with the requirements of
58 this section.
59 (b) The court may, at any time, authorize temporary placement of a child in a potential
60 adoptive home pending completion of a preplacement adoptive evaluation described in this
61 section.
62 (c) Subsection (1)(a) does not apply if a birth parent has legal custody of the child to be
63 adopted and the prospective adoptive parent is related to that child as a step-parent, sibling by half
64 or whole blood or by adoption, grandparent, aunt, uncle, or first cousin, unless the evaluation is
65 otherwise requested by the court. The prospective adoptive parent described in this Subsection (c)
66 shall, however, obtain the information described in Subsections (2)(a) and (b), and file that
67 documentation with the court prior to finalization of the adoption.
68 (d) The requirements of Subsection (1)(a) are satisfied by a previous preplacement
69 adoptive evaluation conducted within three years prior to placement of the child, or an annual
70 updated adoptive evaluation conducted after that three-year period or within one year after
71 finalization of a previous adoption.
72 (2) The preplacement adoptive evaluation shall include:
73 (a) criminal history record information regarding each prospective adoptive parent and any
74 other adult living in the prospective home, received from the Criminal Investigations and
75 Technical Services Division of the Department of Public Safety, in accordance with Section
76 53-10-108 , no earlier than 18 months immediately preceding placement of the child;
77 (b) a report from the Department of Human Services containing all information regarding
78 reports and investigation of child abuse, neglect, and dependency, with respect to each prospective
79 adoptive parent and any other adult living in the prospective home, obtained no earlier than 18
80 months immediately preceding placement of the child, pursuant to waivers executed by those
81 parties; and
82 (c) an evaluation conducted by an expert in family relations approved by the court or a
83 certified social worker, clinical social worker, marriage and family therapist, psychologist,
84 professional counselor, or other court-determined expert in family relations, who is licensed to
85 practice under the laws of this state or under the laws of the state where the prospective adoptive
86 parent or other person living in the prospective adoptive home resides. The evaluation shall be
87 in a form approved by the Department of Human Services. Neither the Department of Human

88 Services nor any of its divisions may proscribe who qualifies as an expert in family relations or
89 who may conduct evaluations pursuant to this Subsection (2).
90 (3) A copy of the preplacement adoptive evaluation shall be filed with the court.
91 (4) (a) Except as provided in Subsections (b) and (c), a postplacement evaluation shall be
92 conducted and submitted to the court prior to the final hearing in an adoption proceeding. The
93 postplacement evaluation shall include:
94 (i) verification of the allegations of fact contained in the petition for adoption;
95 (ii) an evaluation of the progress of the child's placement in the adoptive home; and
96 (iii) a recommendation regarding whether the adoption is in the best interest of the child.
97 (b) The exemptions from and requirements for evaluations, described in Subsections
98 (1)(c), (2)(c), and (3), also apply to postplacement adoptive evaluations.
99 (c) Upon the request of the petitioner, the court may waive the postplacement adoptive
100 evaluation, unless it determines that it is in the best interest of the child to require the
101 postplacement evaluation.
102 (5) If the person or agency conducting the evaluation disapproves the adoptive placement,
103 either in the preplacement or postplacement adoptive evaluation, the court may dismiss the
104 petition. However, upon request of a prospective adoptive parent, the court shall order that an
105 additional preplacement or postplacement adoptive evaluation be conducted, and hold a hearing
106 on the suitability of the adoption, including testimony of interested parties.
107 (6) Prior to finalization of a petition for adoption the court shall review and consider the
108 information and recommendations contained in the preplacement and postplacement adoptive
109 studies required by this section.
110 Section 3. Section 78-30-3.6 is enacted to read:
111 78-30-3.6. Prospective parent not a resident -- Preplacement requirements.
112 (1) When an adoption petition is to be finalized in this state with regard to any prospective
113 adoptive parent who is not a resident of this state at time a child is placed in that person's home
114 the potential adoptive parent shall:
115 (a) comply with the provisions of Section 78-30-3.5 ; and
116 (b) submit fingerprints for a Federal Bureau of Investigation national criminal history
117 record check.
118 (2) The fingerprints referenced in Subsection (1)(b) shall be submitted to the Federal

119 Bureau of Investigation either:
120 (a) through the Criminal Investigations and Technical Services Division of the Department
121 of Public Safety; or
122 (b) if the prospective adoptive parent is pursuing the adoption with a private attorney, the
123 request shall be submitted to the Federal Bureau of Investigation as a personal records check, in
124 accordance with procedures established by the Criminal Investigations and Technical Services
125 Division of the Department of Public Safety.
126 Section 4. Section 78-30-4.14 is amended to read:
127 78-30-4.14. Necessary consent to adoption or relinquishment for adoption.
128 (1) Either relinquishment for adoption to a licensed child-placing agency or consent to
129 adoption is required from:
130 (a) the adoptee, if he is more than 12 years of age, unless he does not have the mental
131 capacity to consent;
132 (b) both parents or the surviving parent of an adoptee who was conceived or born within
133 a marriage, unless the adoptee is 18 years of age or older;
134 (c) the mother of an adoptee born outside of marriage;
135 (d) any biological parent who has been adjudicated to be the child's biological father by
136 a court of competent jurisdiction prior to the mother's execution of consent or her relinquishment
137 to an agency for adoption;
138 (e) any biological parent who has executed and filed a voluntary declaration of paternity
139 with the state registrar of vital statistics within the Department of Health in accordance with Title
140 78, Chapter 45e, prior to the mother's execution of consent or her relinquishment to an agency for
141 adoption, which voluntary declaration of paternity is considered filed when entered into a database
142 that can be accessed by the Department of Health;
143 (f) an unmarried biological father of an adoptee, as defined in Section 78-30-4.11 , only if
144 the requirements and conditions of Subsection (2)(a) or (b) have been proven; and
145 (g) the licensed child-placing agency to whom an adoptee has been relinquished and that
146 is placing the child for adoption.
147 (2) In accordance with Subsection (1), the consent of an unmarried biological father is
148 necessary only if the father has strictly complied with the requirements of this section.
149 (a) (i) With regard to a child who is placed with adoptive parents more than six months

150 after birth, an unmarried biological father shall have developed a substantial relationship with the
151 child, taken some measure of responsibility for the child and the child's future, and demonstrated
152 a full commitment to the responsibilities of parenthood by financial support of the child, of a fair
153 and reasonable sum and in accordance with the father's ability, when not prevented from doing so
154 by the person or authorized agency having lawful custody of the child, and either:
155 (A) visiting the child at least monthly when physically and financially able to do so, and
156 when not prevented from doing so by the person or authorized agency having lawful custody of
157 the child; or
158 (B) regular communication with the child or with the person or agency having the care or
159 custody of the child, when physically and financially unable to visit the child, and when not
160 prevented from doing so by the person or authorized agency having lawful custody of the child.
161 (ii) The subjective intent of an unmarried biological father, whether expressed or
162 otherwise, unsupported by evidence of acts specified in this subsection shall not preclude a
163 determination that the father failed to meet the requirements of [this] Subsection (2)(a)(i).
164 (iii) An unmarried biological father who openly lived with the child for a period of six
165 months within the one-year period after the birth of the child and immediately preceding placement
166 of the child with adoptive parents, and openly held himself out to be the father of the child during
167 that period, shall be deemed to have developed a substantial relationship with the child and to have
168 otherwise met the requirements of [this] Subsection (2)(a)(i).
169 (b) With regard to a child who is under six months of age at the time he is placed with
170 adoptive parents, an unmarried biological father shall have manifested a full commitment to his
171 parental responsibilities by performing all of the acts described in this subsection prior to the time
172 the mother executes her consent for adoption or relinquishes the child to a licensed child-placing
173 agency. The father shall:
174 (i) initiate proceedings to establish paternity under Title 78, Chapter 45a, Uniform Act on
175 Paternity, and file with that court a sworn affidavit stating that he is fully able and willing to have
176 full custody of the child, setting forth his plans for care of the child, and agreeing to a court order
177 of child support and the payment of expenses incurred in connection with the mother's pregnancy
178 and the child's birth;
179 (ii) file notice of the commencement of paternity proceedings with the state registrar of
180 vital statistics within the Department of Health, in a confidential registry established by the

181 department for that purpose, which notice is considered filed when the notice is entered in the
182 registry of notices from unmarried biological fathers; and
183 (iii) if he had actual knowledge of the pregnancy, paid a fair and reasonable amount of the
184 expenses incurred in connection with the mother's pregnancy and the child's birth, in accordance
185 with his means, and when not prevented from doing so by the person or authorized agency having
186 lawful custody of the child.
187 (3) An unmarried biological father whose consent is required under Subsection (1) or (2)
188 may nevertheless lose his right to consent if the court determines, in accordance with the
189 requirements and procedures of Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act,
190 that his rights should be terminated, based on the petition of any interested party.
191 (4) If there is no showing that an unmarried biological father has consented to or waived
192 his rights regarding a proposed adoption, the petitioner shall file with the court a certificate from
193 the state registrar of vital statistics within the Department of Health, stating that a diligent search
194 has been made of the registry of notices from unmarried biological fathers described in Subsection
195 (2)(b)(ii), and that no filing has been found pertaining to the father of the child in question, or if
196 a filing is found, stating the name of the putative father and the time and date of filing. That
197 certificate shall be filed with the court prior to entrance of a final decree of adoption.
198 (5) An unmarried biological father who does not fully and strictly comply with each of the
199 conditions provided in this section, is deemed to have waived and surrendered any right in relation
200 to the child, including the right to notice of any judicial proceeding in connection with the adoption
201 of the child, and his consent to the adoption of the child is not required.
202 Section 5. Section 78-30-7 is amended to read:
203 78-30-7. Jurisdiction of district and juvenile court -- Time for filing.
204 (1) Adoption proceedings shall be commenced by filing a petition with the clerk of the
205 district court either:
206 (a) in the district where the person adopting resides[,]; or
207 (b) with the juvenile court as provided in Section 78-3a-105 .
208 (2) If a child is conceived in Utah, adoption proceedings may be commenced by filing a
209 petition with the clerk of a court in the district court where the child was born.
210 (3) All orders, decrees, agreements, and notices in the proceedings shall be filed with the
211 clerk of [that] the court where the adoption proceedings were commenced under Subsection (1)

212 or (2).
213 [(2)] (4) A petition for adoption shall be filed within 30 days of the date the adoptee is
214 placed in the home of the petitioners for the purpose of adoption, unless the time for filing has
215 been extended by the court, or unless the adoption is arranged by a licensed child-placing agency
216 in which case the agency may extend the filing time.