Download Zipped Enrolled WordPerfect HB0245.ZIP
[Introduced][Status][Bill Documents][Fiscal Note]
[Bills Directory]
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