H.B. 51 Enrolled

1

ADOPTION AMENDMENTS
2 2007 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Sheryl L. Allen
5 Senate Sponsor: Carlene M. Walker
6
7 LONG TITLE
8 General Description:
9 This bill amends the Adoption chapter of the Judicial Code and related provisions.
10 Highlighted Provisions:
11 This bill:
12 . defines terms;
13 . modifies the background check requirements with regard to a prospective adoptive
14 parent who is not a resident of Utah;
15 . modifies and clarifies requirements necessary for an unmarried biological father to
16 preserve his right to notice and consent for an adoption;
17 . modifies requirements relating to notice of an adoption proceeding;
18 . describes the circumstances under which an adoption may or may not be contested;
19 . expands and describes provisions relating to who may take consents or
20 relinquishments for adoption;
21 . provides for, and describes, the jurisdiction of a district court to terminate parental
22 rights under certain circumstances;
23 . describes the grounds upon which a district court may terminate parental rights;
24 . describes when a birth parent's parental rights and duties are dissolved in relation to
25 a child who is to be adopted;
26 . provides that a court may, for good cause, order a final decree of adoption earlier
27 than the six-month and one-year requirements currently provided for by law; and
28 . makes technical changes.
29 Monies Appropriated in this Bill:

30 None
31 Other Special Clauses:
32 None
33 Utah Code Sections Affected:
34 AMENDS:
35 78-30-3.6, as enacted by Chapter 101, Laws of Utah 2001
36 78-30-4.13, as last amended by Chapters 137 and 150, Laws of Utah 2005
37 78-30-4.14, as repealed and reenacted by Chapter 186, Laws of Utah 2006
38 78-30-4.16, as last amended by Chapter 137, Laws of Utah 2005
39 78-30-4.18, as last amended by Chapter 122, Laws of Utah 2004
40 78-30-8, as last amended by Chapter 208, Laws of Utah 1991
41 78-30-11, as last amended by Chapters 65 and 245, Laws of Utah 1990
42 78-30-14, as last amended by Chapter 186, Laws of Utah 2006
43 78-45c-103, as enacted by Chapter 247, Laws of Utah 2000
44 ENACTS:
45 78-30-7.1, Utah Code Annotated 1953
46
47 Be it enacted by the Legislature of the state of Utah:
48 Section 1. Section 78-30-3.6 is amended to read:
49 78-30-3.6. Prospective parent not a resident -- Preplacement requirements.
50 (1) When an adoption petition is to be finalized in this state with regard to any
51 prospective adoptive parent who is not a resident of this state at the time a child is placed in
52 that person's home, the potential adoptive parent shall:
53 (a) comply with the provisions of Section 78-30-3.5 ; and
54 (b) (i) if the child is in state custody, submit fingerprints for a Federal Bureau of
55 Investigation national criminal history record check[.] through the Criminal and Technical
56 Services Division of the Department of Public Safety in accordance with the provisions of
57 Section 62A-2-120 ; or

58 (ii) subject to Subsection (2), if the child is not in state custody:
59 (A) submit fingerprints for a Federal Bureau of Investigation national criminal history
60 records check as a personal records check; or
61 (B) complete a criminal records check and child abuse database check for each state
62 and, if available, country, where the potential adoptive parent resided during the five years
63 immediately preceding the day on which the adoption petition is to be finalized.
64 [(2) The fingerprints referenced in Subsection (1)(b) shall be submitted to the Federal
65 Bureau of Investigation either:]
66 [(a) through the Criminal Investigations and Technical Services Division of the
67 Department of Public Safety in accordance with the provisions of Section 62A-2-120 ; or]
68 [(b) if the prospective adoptive parent is pursuing the adoption with a private attorney,
69 the request shall be submitted to the Federal Bureau of Investigation as a personal records
70 check, in accordance with procedures established by the Criminal Investigations and Technical
71 Services Division of the Department of Public Safety.]
72 (2) For purposes of Subsection (1)(b)(ii):
73 (a) if the adoption is being handled by a human services program, as defined in Section
74 62A-2-101 :
75 (i) the criminal history check described in Subsection (1)(b)(ii)(A) shall be submitted
76 in accordance with procedures established by the Criminal Investigations and Technical
77 Services Division of the Department of Public Safety; and
78 (ii) subject to Subsection (3), the criminal history check described in Subsection
79 (1)(b)(ii)(B) shall be submitted in a manner acceptable to the court that will:
80 (A) preserve the chain of custody of the results; and
81 (B) not permit tampering with the results by a prospective adoptive parent or other
82 interested party; and
83 (b) if the adoption is being handled by a private attorney, and not a human services
84 program, the criminal history checks described in Subsection (1)(b)(ii), shall be:
85 (i) submitted in accordance with procedures established by the Criminal Investigations

86 and Technical Services Division of the Department of Public Safety; or
87 (ii) subject to Subsection (3), submitted in a manner acceptable to the court that will:
88 (A) preserve the chain of custody of the results; and
89 (B) not permit tampering with the results by a prospective adoptive parent or other
90 interested party.
91 (3) In order to comply with Subsection (2)(a)(ii) of (b)(ii), the manner in which the
92 criminal history check is submitted shall be approved by the court.
93 Section 2. Section 78-30-4.13 is amended to read:
94 78-30-4.13. Notice of adoption proceedings.
95 (1) (a) An unmarried biological father, by virtue of the fact that he has engaged in a
96 sexual relationship with a woman:
97 (i) is considered to be on notice that a pregnancy and an adoption proceeding regarding
98 the child may occur; and
99 (ii) has a duty to protect his own rights and interests.
100 (b) An unmarried biological father is entitled to actual notice of a birth or an adoption
101 proceeding with regard to his child only as provided in this section.
102 (2) Notice of an adoption proceeding shall be served on each of the following persons:
103 (a) any person or agency whose consent or relinquishment is required under Section
104 78-30-4.14 , unless that right has been terminated by:
105 (i) waiver;
106 (ii) relinquishment;
107 (iii) consent; or
108 (iv) judicial action;
109 (b) any person who has initiated a paternity proceeding and filed notice of that action
110 with the state registrar of vital statistics within the Department of Health, in accordance with
111 Subsection (3);
112 (c) any legally appointed custodian or guardian of the adoptee;
113 (d) the petitioner's spouse, if any, only if the petitioner's spouse has not joined in the

114 petition;
115 (e) the adoptee's spouse, if any;
116 (f) any person who, prior to the time the mother executes her consent for adoption or
117 relinquishes the child for adoption, is recorded on the birth certificate as the child's father, with
118 the knowledge and consent of the mother;
119 (g) any person who is:
120 (i) openly living in the same household with the child at the time the consent is
121 executed or relinquishment made; and
122 (ii) holding himself out to be the child's father; and
123 (h) any person who is married to the child's mother at the time she executes her consent
124 to the adoption or relinquishes the child for adoption.
125 (3) (a) In order to preserve any right to notice and consent, an unmarried, biological
126 father may, consistent with Subsection (3)(d):
127 (i) initiate proceedings in a district court of the state of Utah to establish paternity
128 under Title 78, Chapter 45g, Utah Uniform Parentage Act; and
129 (ii) file a notice of the initiation of the proceedings described in Subsection (3)(a)(i)
130 with the state registrar of vital statistics within the Department of Health.
131 (b) If the unmarried, biological father does not know the county in which the birth
132 mother resides, he may initiate his action in any county, subject to a change in trial pursuant to
133 Section 78-13-7 .
134 (c) The Department of Health shall provide forms for the purpose of filing the notice
135 described in Subsection (3)(a)(ii), and make those forms available in the office of the county
136 health department in each county.
137 (d) The action and notice described in Subsection (3)(a):
138 (i) may be filed before or after the child's birth; and
139 (ii) shall be filed prior to the mother's:
140 (A) execution of consent to adoption of the child; or
141 (B) relinquishment of the child for adoption.

142 (4) Notice provided in accordance with this section need not disclose the name of the
143 mother of the child who is the subject of an adoption proceeding.
144 (5) The notice required by this section:
145 (a) may be served immediately after relinquishment or execution of consent;
146 (b) shall be served at least 30 days prior to the final dispositional hearing; [and]
147 (c) shall specifically state that the person served must respond to the petition within 30
148 days of service if he intends to intervene in or contest the adoption[.];
149 (d) shall state the consequences, described in Subsection (6)(b), for failure of a person
150 to file a motion for relief within 30 days after the day on which the person is served with notice
151 of an adoption proceeding;
152 (e) is not required to include, nor be accompanied by, a summons or a copy of the
153 petition for adoption; and
154 (f) shall state where the person may obtain a copy of the petition for adoption.
155 (6) (a) Any person who has been served with notice of an adoption proceeding and who
156 wishes to contest the adoption shall file a motion in the adoption proceeding:
157 (i) within 30 days after the day on which the person was served with notice of the
158 adoption proceeding;
159 (ii) that shall set forth specific relief sought; and
160 (iii) that shall be accompanied by a memorandum specifying the factual and legal
161 grounds upon which the motion is based.
162 (b) Any person who fails to file a motion for relief within 30 days after the day on
163 which the person was served with notice of the adoption proceeding:
164 (i) waives any right to further notice in connection with the adoption;
165 (ii) forfeits all rights in relation to the adoptee; and
166 (iii) is barred from thereafter bringing or maintaining any action to assert any interest in
167 the adoptee.
168 (7) Service of notice under this section shall be made as follows:
169 (a) (i) [With regard to] Subject to Subsection (5)(e), service on a person whose consent

170 is necessary under Section 78-30-4.14 [, service] shall be in accordance with the provisions of
171 the Utah Rules of Civil Procedure.
172 (ii) If service of a person described in Subsection (7)(a)(i) is by publication, the court
173 shall designate the content of the notice regarding the identity of the parties.
174 (iii) The notice described in this Subsection (7)(a) may not include the name of a
175 person seeking to adopt the adoptee.
176 (b) (i) Except as provided in Subsection (7)(b)(ii) to any other person for whom notice
177 is required under this section, service by certified mail, return receipt requested, is sufficient.
178 (ii) If the service described in Subsection (7)(b)(i) cannot be completed after two
179 attempts, the court may issue an order providing for service by publication, posting, or by any
180 other manner of service.
181 (c) Notice to a person who has initiated a paternity proceeding and filed notice of that
182 action with the state registrar of vital statistics in the Department of Health in accordance with
183 the requirements of Subsection (3), shall be served by certified mail, return receipt requested, at
184 the last address filed with the registrar.
185 (8) The notice required by this section may be waived in writing by the person entitled
186 to receive notice.
187 (9) Proof of service of notice on all persons for whom notice is required by this section
188 shall be filed with the court before the final dispositional hearing on the adoption.
189 (10) Notwithstanding any other provision of law, neither the notice of an adoption
190 proceeding nor any process in that proceeding is required to contain the name of the person or
191 persons seeking to adopt the adoptee.
192 (11) Except as to those persons whose consent to an adoption is required under Section
193 78-30-4.14 , the sole purpose of notice under this section is to enable the person served to:
194 (a) intervene in the adoption; and
195 (b) present evidence to the court relevant to the best interest of the child.
196 Section 3. Section 78-30-4.14 is amended to read:
197 78-30-4.14. Necessary consent to adoption or relinquishment for adoption.

198 (1) Except as provided in Subsection (2), consent to adoption of a child, or
199 relinquishment of a child for adoption, is required from:
200 (a) the adoptee, if the adoptee is more than 12 years of age, unless the adoptee does not
201 have the mental capacity to consent;
202 (b) both parents or the surviving parent of an adoptee who was conceived or born
203 within a marriage;
204 (c) the mother of an adoptee born outside of marriage;
205 (d) any biological parent who has been adjudicated to be the child's biological father by
206 a court of competent jurisdiction prior to the mother's execution of consent to adoption or her
207 relinquishment of the child for adoption;
208 (e) consistent with Subsection (3), any biological parent who has executed and filed a
209 voluntary declaration of paternity with the state registrar of vital statistics within the
210 Department of Health in accordance with Title 78, Chapter 45e, Voluntary Declaration of
211 Paternity Act, prior to the mother's execution of consent to adoption or her relinquishment of
212 the child for adoption;
213 (f) an unmarried biological father of an adoptee, only if he strictly complies with the
214 requirements of Subsections (4) through (8) and (10); and
215 (g) the person or agency to whom an adoptee has been relinquished and that is placing
216 the child for adoption.
217 (2) (a) The consent of a person described in Subsections (1)(b) through (g) is not
218 required if the adoptee is 18 years of age or older.
219 (b) The consent of a person described in Subsections (1)(b) through (f) is not required
220 if the person's parental rights relating to the adoptee have been terminated.
221 (3) For purposes of Subsection (1)(e), a voluntary declaration of paternity is considered
222 filed when it is entered into a database that:
223 (a) can be accessed by the Department of Health; and
224 (b) is designated by the state registrar of vital statistics as the official database for
225 voluntary declarations of paternity.

226 (4) Except as provided in Subsections (5)(a) and (10), and subject to Subsection (8),
227 with regard to a child who is placed with adoptive parents more than six months after birth,
228 consent of an unmarried biological father is not required unless the unmarried biological father:
229 (a) (i) developed a substantial relationship with the child by:
230 (A) visiting the child monthly, unless the unmarried biological father was physically or
231 financially unable to visit the child on a monthly basis; or
232 (B) engaging in regular communication with the child or with the person or authorized
233 agency that has lawful custody of the child;
234 (ii) took some measure of responsibility for the child and the child's future; and
235 (iii) demonstrated a full commitment to the responsibilities of parenthood by financial
236 support of the child of a fair and reasonable sum in accordance with the father's ability; or
237 (b) (i) openly lived with the child:
238 (A) (I) for a period of at least six months during the one-year period immediately
239 preceding the day on which the child is placed with adoptive parents; or
240 (II) if the child is less than one year old, for a period of at least six months during the
241 period of time beginning on the day on which the child is born and ending on the day on which
242 the child is placed with adoptive parents; and
243 (B) immediately preceding placement of the child with adoptive parents; and
244 (ii) openly held himself out to be the father of the child during the six-month period
245 described in Subsection (4)(b)(i)(A).
246 (5) (a) If an unmarried biological father was prevented from complying with a
247 requirement of Subsection (4) by the person or authorized agency having lawful custody of the
248 child, the unmarried biological father is not required to comply with that requirement.
249 (b) The subjective intent of an unmarried biological father, whether expressed or
250 otherwise, that is unsupported by evidence that the requirements in Subsection (4) have been
251 met, shall not preclude a determination that the father failed to meet the requirements of
252 Subsection (4).
253 (6) Except as provided in Subsection (10), and subject to Subsection (8), with regard to

254 a child who is six months of age or less at the time the child is placed with adoptive parents,
255 consent of an unmarried biological father is not required unless, prior to the time the mother
256 executes her consent for adoption or relinquishes the child for adoption, the unmarried
257 biological father:
258 (a) initiates proceedings in a district court of the state of Utah to establish paternity
259 under Title 78, Chapter 45g, Utah Uniform Parentage Act;
260 (b) files with the court that is presiding over the paternity proceeding a sworn affidavit:
261 (i) stating that he is fully able and willing to have full custody of the child;
262 (ii) setting forth his plans for care of the child; and
263 (iii) agreeing to a court order of child support and the payment of expenses incurred in
264 connection with the mother's pregnancy and the child's birth;
265 (c) consistent with Subsection (7), files notice of the commencement of paternity
266 proceedings, described in Subsection (6)(a), with the state registrar of vital statistics within the
267 Department of Health, in a confidential registry established by the department for that purpose;
268 and
269 (d) offered to pay and paid a fair and reasonable amount of the expenses incurred in
270 connection with the mother's pregnancy and the child's birth, in accordance with his financial
271 ability, unless:
272 (i) he did not have actual knowledge of the pregnancy;
273 (ii) he was prevented from paying the expenses by the person or authorized agency
274 having lawful custody of the child; or
275 (iii) the mother refuses to accept the unmarried biological father's offer to pay the
276 expenses described in this Subsection (6)(d).
277 (7) The notice described in Subsection (6)(c) is considered filed when it is entered into
278 the registry described in Subsection (6)(c).
279 (8) Consent of an unmarried biological father is not required under this section if:
280 (a) the court determines, in accordance with the requirements and procedures of Title
281 78, Chapter 3a, Part 4, Termination of Parental Rights Act, that the unmarried biological

282 father's rights should be terminated, based on the petition of any interested party; or
283 (b) (i) a declaration of paternity declaring the unmarried biological father to be the
284 father of the child is rescinded under Section 78-45g-306 ; and
285 (ii) the unmarried biological father fails to comply with Subsection (6) within ten
286 business days after the day that notice of the rescission described in Subsection (8)(b)(i) is
287 mailed by the Office of Vital Records within the Department of Health as provided in Section
288 78-45g-306 .
289 (9) Unless the adoptee is conceived or born within a marriage, the petitioner in an
290 adoption proceeding shall, prior to entrance of a final decree of adoption, file with the court a
291 certificate from the state registrar of vital statistics within the Department of Health, stating:
292 (a) that a diligent search has been made of the registry of notices from unmarried
293 biological fathers described in Subsection (6)(c); and
294 (b) (i) that no filing has been found pertaining to the father of the child in question; or
295 (ii) if a filing is found, the name of the putative father and the time and date of filing.
296 (10) (a) For purposes of this Subsection (10), "qualifying circumstance" means that, at
297 any point during the time period beginning at the conception of the child and ending at the time
298 the mother executed a consent to adoption or relinquishment of the child for adoption:
299 (i) the child or the child's mother resided, on a permanent or temporary basis, in the
300 state of Utah;
301 (ii) the mother intended to give birth to the child in the state of Utah;
302 (iii) the child was born in the state of Utah; or
303 (iv) the mother intended to execute a consent to adoption or relinquishment of the child
304 for adoption:
305 (A) in the state of Utah; or
306 (B) under the laws of the state of Utah.
307 (b) For purposes of Subsection (10)(c)(i), a court shall consider the totality of the
308 circumstances when determining whether an unmarried biological father has demonstrated a
309 full commitment to his parental responsibilities, including, if applicable:

310 (i) efforts he has taken to discover the location of the child or the child's mother;
311 (ii) whether he has expressed or demonstrated an interest in taking responsibility for
312 the child;
313 (iii) whether, and to what extent, he has developed, or attempted to develop, a
314 relationship with the child;
315 (iv) whether he offered to provide and, if the offer was accepted, did provide, financial
316 support for the child or the child's mother;
317 (v) whether, and to what extent, he has communicated, or attempted to communicate,
318 with the child or the child's mother;
319 (vi) whether he has filed legal proceedings to establish his paternity of, and take
320 responsibility for, the child;
321 (vii) whether he has filed a notice with a public official or agency relating to:
322 (A) his paternity of the child; or
323 (B) legal proceedings to establish his paternity of the child; or
324 (viii) other evidence that demonstrates that he has demonstrated a full commitment to
325 his parental responsibilities.
326 [(b)] (c) Notwithstanding the provisions of Subsections (4) and (6), the consent of an
327 unmarried biological father is required with respect to an adoptee who is under the age of 18 if:
328 (i) (A) the unmarried biological father did not know, and through the exercise of
329 reasonable diligence could not have known, before the time the mother executed a consent to
330 adoption or relinquishment of the child for adoption, that a qualifying circumstance existed;
331 [and]
332 (B) before the mother executed a consent to adoption or relinquishment of the child for
333 adoption, the unmarried biological father fully complied with the requirements to establish
334 parental rights in the child, and to preserve the right to notice of a proceeding in connection
335 with the adoption of the child, imposed by:
336 (I) the last state where the unmarried biological father knew, or through the exercise of
337 reasonable diligence should have known, that the mother resided in before the mother executed

338 the consent to adoption or relinquishment of the child for adoption; or
339 (II) the state where the child was conceived; [or] and
340 (C) the unmarried biological father has demonstrated, based on the totality of the
341 circumstances, a full commitment to his parental responsibilities, as described in Subsection
342 (10)(b); or
343 (ii) (A) the unmarried biological father knew, or through the exercise of reasonable
344 diligence should have known, before the time the mother executed a consent to adoption or
345 relinquishment of the child for adoption, that a qualifying circumstance existed; and
346 (B) the unmarried biological father complied with the requirements of Subsection (4)
347 or (6) before the later of:
348 (I) 20 days after the day that the unmarried biological father knew, or through the
349 exercise of reasonable diligence should have known, that a qualifying circumstance existed; or
350 (II) the time that the mother executed a consent to adoption or relinquishment of the
351 child for adoption.
352 (11) An unmarried biological father who does not fully and strictly comply with the
353 requirements of this section is considered to have waived and surrendered any right in relation
354 to the child, including the right to:
355 (a) notice of any judicial proceeding in connection with the adoption of the child; and
356 (b) consent, or refuse to consent, to the adoption of the child.
357 Section 4. Section 78-30-4.16 is amended to read:
358 78-30-4.16. Contested adoptions -- Rights of parties -- Determination of custody.
359 (1) If a person whose consent for an adoption is required pursuant to Subsection
360 78-30-4.14 (1)(b), (c), (d), (e), or (f) refused to consent, the court shall determine whether
361 proper grounds exist for the termination of that person's rights pursuant to the provisions of this
362 chapter or Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act.
363 (2) (a) If there are proper grounds to terminate the person's parental rights, the court
364 shall order that the person's rights be terminated.
365 (b) If there are not proper grounds to terminate the person's parental rights, the court

366 shall:
367 (i) dismiss the adoption petition;
368 (ii) conduct an evidentiary hearing to determine who should have custody of the child;
369 and
370 (iii) award custody of the child in accordance with the child's best interest.
371 (3) Evidence considered at the custody hearing may include:
372 (a) evidence of psychological or emotional bonds that the child has formed with a third
373 person, including the prospective adoptive parent; and
374 (b) any detriment that a change in custody may cause the child.
375 (4) The fact that a person relinquished a child for adoption or consented to the adoption
376 may not be considered as evidence that it is not in the child's best interest for custody to be
377 awarded to such person or that:
378 (a) the person is unfit or incompetent to be a parent;
379 (b) the person has neglected or abandoned the child; or
380 (c) the person is not interested in having custody of the child.
381 (5) Any custody order entered pursuant to this section may also:
382 (a) include provisions for:
383 (i) parent-time by a biological parent; or
384 (ii) visitation by an interested third party; and
385 (b) provide for the financial support of the child.
386 (6) (a) If a person or entity whose consent is required for an adoption under Subsection