H.B. 245 Enrolled

1

CHILD WELFARE AMENDMENTS
2 2007 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Merlynn T. Newbold
5 Senate Sponsor: Allen M. Christensen
6
7 LONG TITLE
8 General Description:
9 This bill amends the Utah Human Services Code and the Judicial Code in order to
10 comply with federal requirements, including those contained in The Adam Walsh Child
11 Protection and Safety Act of 2006 and the Safe and Timely Interstate Placement of
12 Foster Care Children Act of 2006, and to make corrections to certain child welfare
13 provisions.
14 Highlighted Provisions:
15 This bill:
16 . amends the background check procedures of the Office of Licensing, within the
17 Department of Human Services, as they relate to background checks conducted for
18 the purpose of licensing a prospective foster home or approving a prospective
19 adoptive placement of a child in state custody;
20 . requires that before a prospective foster home is licensed, and before a child in state
21 custody is placed with a prospective foster parent or a prospective adoptive parent,
22 the Department of Human Services shall check the child abuse and neglect registry
23 of each state where the prospective foster parent, prospective adoptive parent, or an
24 adult residing in the home of the prospective foster parent or prospective adoptive
25 parent, resided during the five years immediately preceding placement of the child;
26 . permits the information within the Management Information System, maintained by
27 the Division of Child and Family Services, within the Department of Human
28 Services, to be disclosed for the purpose of:
29 . complying with an abuse and neglect registry check requested by another state;

30 and
31 . complying with the federal requirements for maintaining an electronic national
32 registry of substantiated cases of child abuse and neglect;
33 . provides for the recognition within Utah of home studies conducted outside of Utah;
34 . amends the background check procedures for direct service workers when a child in
35 the legal custody of the Department of Human Services, or a division of the
36 department, is placed with the direct service worker;
37 . requires a court to consider appropriate in-state and out-of-state placements for a
38 child who is removed from the custody of the child's parents;
39 . describes the entitlement or right of a child and others to be given notice of, to be
40 present at, and to be heard at, each hearing and proceeding in an abuse, neglect, or
41 dependency case;
42 . amends background check requirements for preplacement adoptive evaluations; and
43 . makes technical changes.
44 Monies Appropriated in this Bill:
45 None
46 Other Special Clauses:
47 None
48 Utah Code Sections Affected:
49 AMENDS:
50 62A-2-120, as last amended by Chapters 57 and 77, Laws of Utah 2006
51 62A-2-121, as last amended by Chapter 77, Laws of Utah 2006
52 62A-4a-1003, as renumbered and amended by Chapter 77, Laws of Utah 2006
53 62A-5-103.5, as last amended by Chapter 77, Laws of Utah 2006
54 78-3a-307.1, as last amended by Chapter 329, Laws of Utah 1997
55 78-3a-312, as last amended by Chapter 286, Laws of Utah 2005
56 78-3a-314, as last amended by Chapter 120, Laws of Utah 2001
57 78-30-3.5, as last amended by Chapters 121 and 122, Laws of Utah 2004

58 78-30-3.6, as enacted by Chapter 101, Laws of Utah 2001
59 ENACTS:
60 62A-4a-710, Utah Code Annotated 1953
61
62 Be it enacted by the Legislature of the state of Utah:
63 Section 1. Section 62A-2-120 is amended to read:
64 62A-2-120. Criminal background checks -- Direct access to children or
65 vulnerable adults.
66 (1) (a) Except as provided in Subsection (7), an applicant for an initial license or a
67 license renewal under this chapter shall submit to the office the names and other identifying
68 information, which may include fingerprints, of all persons associated with the licensee, as
69 defined in Section 62A-2-101 , with direct access to children or vulnerable adults.
70 (b) The Criminal Investigations and Technical Services Division of the Department of
71 Public Safety, or the office as authorized under Section 53-10-108 , shall process the
72 information described in Subsection (1)(a) to determine whether the individual has been
73 convicted of any crime.
74 (c) Except as provided in Subsection (1)(d), if an individual has not continuously lived
75 in Utah for the five years immediately preceding the day on which the information referred to
76 in Subsection (1)(a) is submitted to the office, the individual shall submit fingerprints for a FBI
77 national criminal history record check. The fingerprints shall be submitted to the FBI through
78 the Criminal Investigations and Technical Services Division.
79 (d) An individual is not required to comply with Subsection (1)(c) if:
80 (i) the individual continuously lived in Utah for the five years immediately preceding
81 the day on which the information described in Subsection (1)(a) is submitted to the office,
82 except for time spent outside of the United States and its territories[.]; and
83 (ii) the background check of the individual is being conducted for a purpose other than
84 a purpose described in Subsection (1)(f).
85 (e) If an applicant described in Subsection (1)(a) spent time outside of the United

86 States and its territories [at any time] during the five years immediately preceding the day on
87 which the information described in Subsection (1)(a) is submitted to the office, the office shall
88 require the applicant to submit documentation establishing whether the applicant was convicted
89 of a crime during the time that the applicant spent outside of the United States and its
90 territories.
91 (f) Notwithstanding any other provision of this Subsection (1), an applicant described
92 in Subsection (1)(a) shall submit fingerprints for an FBI national criminal history records
93 check, through the Criminal Investigations and Technical Services Division, if the background
94 check of the applicant is being conducted for the purpose of:
95 (i) licensing a prospective foster home; or
96 (ii) approving a prospective adoptive placement of a child in state custody.
97 (g) In addition to the other requirements of this section, if the background check of an
98 applicant described in Subsection (1)(a) is being conducted for the purpose of licensing a
99 prospective foster home or approving a prospective adoptive placement of a child in state
100 custody, the office shall:
101 (i) check the child abuse and neglect registry in each state where each prospective
102 foster parent or prospective adoptive parent resided in the five years immediately preceding the
103 day on which the prospective foster parent or prospective adoptive parent applied to be a foster
104 parent or adoptive parent, to determine whether the prospective foster parent or prospective
105 adoptive parent is listed in the registry as having a substantiated or supported finding of child
106 abuse or neglect; and
107 (ii) check the child abuse and neglect registry in each state where each adult living in
108 the home of the prospective foster parent or prospective adoptive parent described in
109 Subsection (1)(g)(i) resided in the five years immediately preceding the day on which the
110 prospective foster parent or prospective adoptive parent applied to be a foster parent or
111 adoptive parent, to determine whether the adult is listed in the registry as having a substantiated
112 or supported finding of child abuse or neglect.
113 [(f)] (h) The office shall make rules, in accordance with Title 63, Chapter 46a, Utah

114 Administrative Rulemaking Act, to implement the provisions of this Subsection (1).
115 (2) The office shall approve a person for whom identifying information is submitted
116 under Subsection (1) to have direct access to children or vulnerable adults in the licensee
117 program if:
118 (a) (i) the person is found to have no criminal history record; or
119 (ii) (A) the only convictions in the person's criminal history record are misdemeanors
120 or infractions not involving any of the offenses described in Subsection (3); and
121 (B) the date of the last conviction under Subsection (2)(a)(ii)(A) is more than five years
122 before the date of the search;
123 (b) the person is not listed in the statewide database of the Division of Aging and Adult
124 Services created by Section 62A-3-311.1 ;
125 (c) juvenile court records do not show that a court made a substantiated finding, under
126 Section 78-3a-320 , that the person committed a severe type of child abuse or neglect;
127 (d) the person is not listed in the Licensing Information System of the Division of
128 Child and Family Services created by Section 62A-4a-1006 ; [and]
129 (e) the person has not pled guilty or no contest to a pending charge for any:
130 (i) felony;
131 (ii) misdemeanor listed in Subsection (3); or
132 (iii) infraction listed in Subsection (3)[.]; and
133 (f) for a person described in Subsection (1)(g), the registry check described in
134 Subsection (1)(g) does not indicate that the person is listed in a child abuse and neglect registry
135 of another state as having a substantiated or supported finding of child abuse or neglect.
136 (3) [Unless] Except as provided in Subsection (8), unless at least ten years have passed
137 since the date of conviction, the office may not approve a person to have direct access to
138 children or vulnerable adults in the licensee's human services program if that person has been
139 convicted of an offense, whether a felony, misdemeanor, or infraction, that is:
140 (a) identified as a sexual offense, domestic violence, lewdness, assault, or battery;
141 (b) a violation of any pornography law, including sexual exploitation of a minor;

142 (c) prostitution;
143 (d) included in:
144 (i) Title 76, Chapter 5, Offenses Against the Person;
145 (ii) Title 76, Chapter 5a, Sexual Exploitation of Children; or
146 (iii) Title 76, Chapter 7, Offenses Against the Family; [or]
147 (e) a violation of Section 76-6-103 , aggravated arson;
148 (f) a violation of Section 76-6-203 , aggravated burglary;
149 (g) a violation of Section 76-6-302 , aggravated robbery; or
150 [(e)] (h) a conviction [in: (i) (A) another state, territory, or district of the United States;
151 or (B) a federal court of the United States; and (ii)] for an offense committed outside of
152 the state that, if committed in the state, would constitute a violation of an offense described in
153 [Subsection] Subsections (3)(d) through (g).
154 (4) (a) [If] Except as provided in Subsection (8), if a person for whom identifying
155 information is submitted under Subsection (1) is not approved by the office under Subsection
156 (2) or (3) to have direct access to children or vulnerable adults in the licensee program, the
157 office shall conduct a comprehensive review of criminal and court records and related
158 circumstances if the reason the approval is not granted is due solely to one or more of the
159 following:
160 (i) a conviction for:
161 (A) any felony not listed in Subsection (3);
162 (B) any misdemeanor or infraction, not listed in Subsection (3), within five years of the
163 date of the search;
164 (C) a protective order or ex parte protective order violation under Section 76-5-108 or
165 a similar statute in another state; or
166 (D) any felony, misdemeanor, or infraction listed in Subsection (3) if at least ten years
167 have passed since the date of conviction;
168 (ii) a plea of guilty or no contest to a pending:
169 (A) felony;

170 (B) misdemeanor [not] listed in Subsection (3); or
171 (C) infraction [not] listed in Subsection (3);
172 (iii) the person is listed in the statewide database of the Division of Aging and Adult
173 Services created by Section 62A-3-311.1 ;
174 (iv) juvenile court records show that a court made a substantiated finding, under
175 Section 78-3a-320 , that the person committed a severe type of child abuse or neglect; [or]
176 (v) the person is listed in the Licensing Information System of the Division of Child
177 and Family Services created by Section 62A-4a-1006 [.]; or
178 (vi) the person is listed in a child abuse or neglect registry of another state as having a
179 substantiated or supported finding of child abuse or neglect.
180 (b) The comprehensive review under Subsection (4)(a) shall include an examination of:
181 (i) the date of the offense or incident;
182 (ii) the nature and seriousness of the offense or incident;
183 (iii) the circumstances under which the offense or incident occurred;
184 (iv) the age of the perpetrator when the offense or incident occurred;
185 (v) whether the offense or incident was an isolated or repeated incident;
186 (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
187 adult, including:
188 (A) actual or threatened, nonaccidental physical or mental harm;
189 (B) sexual abuse;
190 (C) sexual exploitation; and
191 (D) negligent treatment;
192 (vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric
193 treatment received, or additional academic or vocational schooling completed, by the person;
194 and
195 (viii) any other pertinent information.
196 (c) At the conclusion of the comprehensive review under Subsection (4)(a), the office
197 shall approve the person who is the subject of the review to have direct access to children or

198 vulnerable adults, unless it finds that approval will likely create a risk of harm to a child or
199 vulnerable adult.
200 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
201 office may make rules, consistent with this chapter, defining procedures for the comprehensive
202 review described in this Subsection (4).
203 (5) (a) For purposes of this Subsection (5), "directly supervised" means that the person
204 being supervised is under the uninterrupted visual and auditory surveillance of the person doing
205 the supervising.
206 (b) A licensee may not permit any person to have direct access to a child or a
207 vulnerable adult unless, subject to Subsection (5)(c), that person is:
208 (i) associated with the licensee and:
209 (A) approved by the office to have direct access to children or vulnerable adults under
210 this section; or
211 (B) (I) the office has not determined whether to approve that person to have direct
212 access to children or vulnerable adults;
213 (II) the information described in Subsection (1)(a), relating to that person, is submitted
214 to the department; and
215 (III) that person is directly supervised by a person associated with the licensee who is
216 approved by the office to have direct access to children or vulnerable adults under this section;
217 (ii) (A) not associated with the licensee; and
218 (B) directly supervised by a person associated with the licensee who is approved by the
219 office to have direct access to children or vulnerable adults under this section;
220 (iii) the parent or guardian of the child or vulnerable adult; or
221 (iv) a person approved by the parent or guardian of the child or vulnerable adult to
222 have direct access to the child or vulnerable adult.
223 (c) Notwithstanding Subsection (5)(b), a person may not have direct access to a child
224 or a vulnerable adult if that person is prohibited by court order from having that access.
225 (6) (a) Within 30 days after receiving the identifying information for a person under

226 Subsection (1), the office shall give written notice to the person and to the licensee or applicant
227 with whom the person is associated of:
228 (i) the office's decision regarding its background screening clearance and findings; and
229 (ii) a list of any convictions found in the search.
230 (b) With the notice described in Subsection (6)(a), the office shall also give to the
231 person the details of any comprehensive review conducted under Subsection (4).
232 (c) If the notice under Subsection (6)(a) states that the person is not approved to have
233 direct access to children or vulnerable adults, the notice shall further advise the persons to
234 whom the notice is given that either the person or the licensee or applicant with whom the
235 person is associated, or both, may, under Subsection 62A-2-111 (2), request a hearing in the
236 department's Office of Administrative Hearings, to challenge the office's decision.
237 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
238 office shall make rules, consistent with this chapter:
239 (i) defining procedures for the challenge of its background screening decision
240 described in this Subsection (6); and
241 (ii) expediting the process for renewal of a license under the requirements of this
242 section and other applicable sections.
243 (7) Notwithstanding Subsection (1)(a), this section does not apply to an applicant for
244 an initial license, or license renewal, to operate a substance abuse [treatment] program that
245 provides services to adults only.
246 (8) (a) Notwithstanding Subsections (2) through (4), the office may not approve or
247 license a person as a prospective foster parent or a prospective adoptive parent if the person has
248 been convicted of:
249 (i) a felony involving conduct that constitutes any of the following:
250 (A) child abuse, as described in Section 76-5-109 ;
251 (B) commission of domestic violence in the presence of a child, as described in Section
252 76-5-109.1 ;
253 (C) abuse or neglect of a disabled child, as described in Section 76-5-110 ;

254 (D) endangerment of a child, as described in Section 76-5-112.5 ;
255 (E) aggravated murder, as described in Section 76-5-202 ;
256 (F) murder, as described in Section 76-5-203 ;
257 (G) manslaughter, as described in Section 76-5-205 ;
258 (H) child abuse homicide, as described in Section 76-5-208 ;
259 (I) homicide by assault, as described in Section 76-5-209 ;
260 (J) kidnapping, as described in Section 76-5-301 ;
261 (K) child kidnapping, as described in Section 76-5-301.1 ;
262 (L) aggravated kidnapping, as described in Section 76-5-302 ;
263 (M) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
264 (N) an offense described in Title 76, Chapter 5a, Sexual Exploitation of Children;
265 (O) aggravated arson, as described in Section 76-6-103 ;
266 (P) aggravated burglary, as described in Section 76-6-203 ;
267 (Q) aggravated robbery, as described in Section 76-6-302 ; or
268 (R) domestic violence, as described in Section 77-36-1 ; or
269 (ii) an offense committed outside the state that, if committed in the state, would
270 constitute a violation of an offense described in Subsection (8)(a)(i).
271 (b) Notwithstanding Subsections (2) through (4), the office may not approve or license
272 a person as a prospective foster parent or a prospective adoptive parent if, within the five years
273 immediately preceding the day on which the person would otherwise be approved or licensed,
274 the person has been convicted of a felony involving conduct that constitutes any of the
275 following:
276 (i) aggravated assault, as described in Section 76-5-103 ;
277 (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5 ;
278 (iii) mayhem, as described in Section 76-5-105 ;
279 (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
280 (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
281 (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances

282 Act;
283 (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
284 Precursor Act; or
285 (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
286 Section 2. Section 62A-2-121 is amended to read:
287 62A-2-121. Access to abuse and neglect information.
288 (1) For purposes of this section:
289 (a) "Direct service worker" is as defined in Section 62A-5-101 [; and].
290 (b) "Personal care attendant" is as defined in Section 62A-3-101 .
291 (2) With respect to a licensee, a certified local inspector applicant, a direct service
292 worker, or a personal care attendant, the department may access only the Licensing Information
293 System of the Division of Child and Family Services created by Section 62A-4a-1006 and
294 juvenile court records under Subsection 78-3a-320 (6), for the purpose of:
295 (a) (i) determining whether a person associated with a licensee, with direct access to
296 children:
297 (A) is listed in the Licensing Information System; or
298 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
299 neglect under Subsections 78-3a-320 (1) and (2); and
300 (ii) informing a licensee that a person associated with the licensee:
301 (A) is listed in the Licensing Information System; or
302 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
303 neglect under Subsections 78-3a-320 (1) and (2);
304 (b) (i) determining whether a certified local inspector applicant:
305 (A) is listed in the Licensing Information System; or
306 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
307 neglect under Subsections 78-3a-320 (1) and (2); and
308 (ii) informing a local government that a certified local inspector applicant:
309 (A) is listed in the Licensing Information System; or

310 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
311 neglect under Subsections 78-3a-320 (1) and (2); [or]
312 (c) (i) determining whether a direct service worker:
313 (A) is listed in the Licensing Information System; or
314 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
315 neglect under Subsections 78-3a-320 (1) and (2); and
316 (ii) informing a direct service worker or the direct service worker's employer that the
317 direct service worker:
318 (A) is listed in the Licensing Information System; or
319 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
320 neglect under Subsections 78-3a-320 (1) and (2); or
321 (d) (i) determining whether a personal care attendant:
322 (A) is listed in the Licensing Information System; or
323 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
324 neglect under Subsections 78-3a-320 (1) and (2); and
325 (ii) informing a person described in Subsections 62A-3-101 (9)(a)(i) through (iv) that a
326 personal care attendant:
327 (A) is listed in the Licensing Information System; or
328 (B) has a substantiated finding by a juvenile court of a severe type of child abuse or
329 neglect under Subsections 78-3a-320 (1) and (2).
330 (3) Notwithstanding Subsection (2), the department may access the Division of Child
331 and Family Service's Management Information System under Section 62A-4a-1003 :
332 (a) for the purpose of licensing and monitoring foster parents[.]; and
333 (b) for the purposes described in Subsection 62A-4a-1003 (1)(d).
334 (4) After receiving identifying information for a person under Subsection
335 62A-2-120 (1), the department shall process the information for the purposes described in
336 Subsection (2).
337 (5) The department shall adopt rules under Title 63, Chapter 46a, Utah Administrative

338 Rulemaking Act, consistent with this chapter, defining the circumstances under which a person
339 may have direct access or provide services to children when:
340 (a) the person is listed in the Licensing Information System of the Division of Child
341 and Family Services created by Section 62A-4a-1006 ; or
342 (b) juvenile court records show that a court made a substantiated finding under Section
343 78-3a-320 , that the person committed a severe type of child abuse or neglect.
344 Section 3. Section 62A-4a-710 is enacted to read:
345 62A-4a-710. Interjurisdictional home study report.
346 (1) The state of Utah may request a home study report from another state or an Indian
347 Tribe for purposes of assessing the safety and suitability of placing a child in a home outside of
348 the jurisdiction of the state of Utah.
349 (2) The state of Utah may not impose any restriction on the ability of a state agency
350 administering, or supervising the administration of, a state program operated under a state plan
351 approved under Section 42 U.S.C. 671 to contract with a private agency to conduct a home
352 study report described in Subsection (1).
353 (3) When the state of Utah receives a home study report described in Subsection (1),
354 the home study report shall be considered to meet all requirements imposed by the state of Utah
355 for completion of a home study before a child is placed in a home, unless, within 14 days after
356 the day on which the report is received, the state of Utah determines, based on grounds that are
357 specific to the content of the report, that making a decision in reliance on the report would be
358 contrary to the welfare of the child.
359 Section 4. Section 62A-4a-1003 is amended to read:
360 62A-4a-1003. Management Information System -- Requirements -- Contents --
361 Purpose -- Access.
362 (1) (a) The division shall develop and implement a Management Information System
363 that meets the requirements of this section and the requirements of federal law and regulation.
364 (b) The information and records contained in the Management Information System:
365 (i) are protected records under Title 63, Chapter 2, Government Records Access and

366 Management Act; and
367 (ii) except as provided in [Subsection] Subsections (1)(c) and (d), are available only to
368 a person with statutory authorization under Title 63, Chapter 2, Government Records Access
369