H.B. 328 Enrolled

1

CHILD PROTECTION AND PARENTAL
2 RIGHTS AMENDMENTS
3 2007 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Wayne A. Harper
6 Senate Sponsor: Margaret Dayton
7
8 LONG TITLE
9 General Description:
10 This bill amends provisions of the Utah Human Services Code and the Juvenile Court
11 Act of 1996 relating to the placement of abused, neglected, and dependent children.
12 Highlighted Provisions:
13 This bill:
14 . replaces the term "emergency kinship placement" with "emergency placement";
15 . provides that investigative interviews of a child in protective custody, if the child is
16 at least nine years old, may be conducted without recording the interview, if the
17 child refuses to have the interview recorded;
18 . provides that investigative interviews of a child in protective custody may be
19 conducted without a support person present, if the child refuses the presence of a
20 support person;
21 . modifies the requirement regarding notification of former foster parents when a
22 child reenters custody of the Division of Child and Family Services;
23 . expands the options for emergency placement of a child to include placement with a
24 friend of the child's parents if the friend is licensed as a foster parent or with another
25 foster family;
26 . provides that the Division of Child and Family Services, within the Department of
27 Human Services, has the discretion to determine whether the division will seek and
28 contact references as part of the division's emergency placement background check;
29 . removes the requirement that the division convene a family unity meeting before a

30 shelter hearing;
31 . establishes the order of priority among potential placements for a child;
32 . expands the options for placing a child in shelter care to include placement with a
33 friend of the child's parent if the friend is licensed as a foster parent;
34 . requires, subject to certain exceptions, that a child be present at certain hearings in
35 an abuse, neglect, or dependency case;
36 . requires, subject to certain exceptions, that the court allow a child to address the
37 court or testify during certain court appearances relating to the abuse, neglect, or
38 dependency of the child;
39 . requires the Department of Human Services to expedite the process for licensing a
40 friend of a parent whose child is in the custody of the Division of Child and Family
41 Services as a foster parent, and requires the court to determine whether it is in the
42 best interest of the child to be placed with the parent's friend if the friend becomes
43 licensed as a foster parent; and
44 . makes technical changes.
45 Monies Appropriated in this Bill:
46 None
47 Other Special Clauses:
48 None
49 Utah Code Sections Affected:
50 AMENDS:
51 62A-4a-202.1, as last amended by Chapters 13, 75 and 281, Laws of Utah 2006
52 62A-4a-202.3, as last amended by Chapters 75 and 281, Laws of Utah 2006
53 62A-4a-205, as last amended by Chapter 75, Laws of Utah 2006
54 62A-4a-206.1, as enacted by Chapter 318, Laws of Utah 1996
55 62A-4a-209, as last amended by Chapter 71, Laws of Utah 2005
56 62A-4a-414, as enacted by Chapter 315, Laws of Utah 2004
57 78-3a-306, as last amended by Chapter 8, Laws of Utah 2006, Third Special Session

58 78-3a-307, as last amended by Chapter 281, Laws of Utah 2006
59 78-3a-312, as last amended by Chapter 286, Laws of Utah 2005
60 ENACTS:
61 78-3a-305.5, Utah Code Annotated 1953
62
63 Be it enacted by the Legislature of the state of Utah:
64 Section 1. Section 62A-4a-202.1 is amended to read:
65 62A-4a-202.1. Entering home of a child -- Taking a child into protective custody
66 -- Caseworker accompanied by peace officer -- Preventive services -- Shelter facility or
67 emergency placement.
68 (1) A peace officer or child welfare worker may not enter the home of a child who is
69 not under the jurisdiction of the court, remove a child from the child's home or school, or take a
70 child into protective custody unless authorized under Subsection 78-3a-106 (2).
71 (2) A child welfare worker within the division may take action under Subsection (1)
72 accompanied by a peace officer, or without a peace officer when a peace officer is not
73 reasonably available.
74 (3) (a) If possible, consistent with the child's safety and welfare, before taking a child
75 into protective custody, the child welfare worker shall also determine whether there are
76 services available that, if provided to a parent or guardian of the child, would eliminate the
77 need to remove the child from the custody of the child's parent or guardian.
78 (b) If the services described in Subsection (3)(a) are reasonably available, they shall be
79 utilized.
80 (c) In determining whether the services described in Subsection (3)(a) are reasonably
81 available, and in making reasonable efforts to provide those services, the child's health, safety,
82 and welfare shall be the child welfare worker's paramount concern.
83 (4) (a) A child removed or taken into custody under this section may not be placed or
84 kept in a secure detention facility pending court proceedings unless the child is detainable
85 based on guidelines promulgated by the Division of Juvenile Justice Services.

86 (b) A child removed from the custody of the child's parent or guardian but who does
87 not require physical restriction shall be given temporary care in:
88 (i) a shelter facility; or
89 (ii) an emergency [kinship] placement in accordance with Section 62A-4a-209 .
90 Section 2. Section 62A-4a-202.3 is amended to read:
91 62A-4a-202.3. Investigation -- Supported or unsupported reports -- Child in
92 protective custody.
93 (1) When a child is taken into protective custody in accordance with Section
94 62A-4a-202.1 , 78-3a-106 , or 78-3a-301 , or when the division takes any other action which
95 would require a shelter hearing under Subsection 78-3a-306 (1), the division shall immediately
96 initiate an investigation of the:
97 (a) circumstances of the child; and
98 (b) grounds upon which the decision to place the child into protective custody was
99 made.
100 (2) The division's investigation shall conform to reasonable professional standards, and
101 shall include:
102 (a) a search for and review of any records of past reports of abuse or neglect involving:
103 (i) the same child;
104 (ii) any sibling or other child residing in the same household as the child; and
105 (iii) the alleged perpetrator;
106 (b) with regard to a child who is five years of age or older, a personal interview with
107 the child:
108 (i) outside of the presence of the alleged perpetrator; and
109 (ii) conducted in accordance with the requirements of Subsection (7);
110 (c) if a parent or guardian can be located, an interview with at least one of the child's
111 parents or guardian;
112 (d) an interview with the person who reported the abuse, unless the report was made
113 anonymously;

114 (e) where possible and appropriate, interviews with other third parties who have had
115 direct contact with the child, including:
116 (i) school personnel; and
117 (ii) the child's health care provider;
118 (f) an unscheduled visit to the child's home, unless:
119 (i) there is a reasonable basis to believe that the reported abuse was committed by a
120 person who:
121 (A) is not the child's parent; and
122 (B) does not:
123 (I) live in the child's home; or
124 (II) otherwise have access to the child in the child's home; or
125 (ii) an unscheduled visit is not necessary to obtain evidence for the investigation; and
126 (g) if appropriate and indicated in any case alleging physical injury, sexual abuse, or
127 failure to meet the child's medical needs, a medical examination, obtained no later than 24
128 hours after the child is placed in protective custody.
129 (3) The division may rely on a written report of a prior interview rather than
130 conducting an additional interview, if:
131 (a) law enforcement:
132 (i) previously conducted a timely and thorough investigation regarding the alleged
133 abuse, neglect, or dependency; and
134 (ii) produced a written report;
135 (b) the investigation described in Subsection (3)(a)(i) included one or more of the
136 interviews required by Subsection (2); and
137 (c) the division finds that an additional interview is not in the best interest of the child.
138 (4) (a) The division's determination of whether a report is supported or unsupported
139 may be based on the child's statements alone.
140 (b) Inability to identify or locate the perpetrator may not be used by the division as a
141 basis for:

142 (i) determining that a report is unsupported; or
143 (ii) closing the case.
144 (c) The division may not determine a case to be unsupported or identify a case as
145 unsupported solely because the perpetrator was an out-of-home perpetrator.
146 (d) Decisions regarding whether a report is supported, unsupported, or without merit
147 shall be based on the facts of the case at the time the report was made.
148 (5) The division should maintain protective custody of the child if it finds that one or
149 more of the following conditions exist:
150 (a) the child does not have a natural parent, guardian, or responsible relative who is
151 able and willing to provide safe and appropriate care for the child;
152 (b) (i) shelter of the child is a matter of necessity for the protection of the child; and
153 (ii) there are no reasonable means by which the child can be protected in:
154 (A) the child's home; or
155 (B) the home of a responsible relative;
156 (c) there is substantial evidence that the parent or guardian is likely to flee the
157 jurisdiction of the court; or
158 (d) the child has left a previously court ordered placement.
159 (6) (a) Within 24 hours after receipt of a child into protective custody, excluding
160 weekends and holidays, the division shall:
161 (i) convene a child protection team to review the circumstances regarding removal of
162 the child from the child's home or school; and
163 (ii) prepare the testimony and evidence that will be required of the division at the
164 shelter hearing, in accordance with Section 78-3a-306 .
165 (b) The child protection team described in Subsection (6)(a)(i) shall include:
166 (i) the caseworker assigned to the case;
167 (ii) the caseworker who made the decision to remove the child;
168 (iii) a representative of the school or school district where the child attends school;
169 (iv) the peace officer who removed the child from the home;

170 (v) a representative of the appropriate Children's Justice Center, if one is established
171 within the county where the child resides;
172 (vi) if appropriate, and known to the division, a therapist or counselor who is familiar
173 with the child's circumstances; and
174 (vii) any other individuals determined appropriate and necessary by the team
175 coordinator and chair.
176 (c) At the 24-hour meeting, the division shall have available for review and
177 consideration the complete child protective services and foster care history of the child and the
178 child's parents and siblings.
179 (7) (a) After receipt of a child into protective custody and prior to the adjudication
180 hearing, all investigative interviews with the child that are initiated by the division shall be:
181 (i) except as provided in Subsection (7)(b), audio or video taped; and
182 (ii) except as provided in Subsection (7)[(b)] (c), conducted with a support person of
183 the child's choice present.
184 (b) (i) Subject to Subsection (7)(b)(ii), an interview described in Subsection (7)(a) may
185 be conducted without being taped if the child:
186 (A) is at least nine years old;
187 (B) refuses to have the interview audio taped; and
188 (C) refuses to have the interview video taped.
189 (ii) If, pursuant to Subsection (7)(b)(i), an interview is conducted without being taped,
190 the child's refusal shall be documented, as follows:
191 (A) the interviewer shall attempt to get the child's refusal on tape, including the reasons
192 for the refusal; or
193 (B) if the child does not allow the refusal, or the reasons for the refusal, to be taped, the
194 interviewer shall:
195 (I) state on the tape that the child is present, but has refused to have the interview,
196 refusal, or the reasons for the refusal taped; or
197 (II) if complying with Subsection (7)(b)(ii)(B)(I) will result in the child, who would

198 otherwise consent to be interviewed, to refuse to be interviewed, the interviewer shall
199 document, in writing, that the child refused to allow the interview to be taped and the reasons
200 for that refusal.
201 (iii) The division shall track the number of interviews under this Subsection (7) that are
202 not taped, and the number of refusals that are not taped, for each interviewer, in order to
203 determine whether a particular interviewer has a higher incidence of refusals, or taped refusals,
204 than other interviewers.
205 [(b)] (c) (i) Notwithstanding Subsection (7)(a)(ii), the support person who is present for
206 an interview of a child may not be an alleged perpetrator.
207 (ii) Subsection (7)(a)(ii) does not apply if the child refuses to have a support person
208 present during the interview.
209 (iii) If a child described in Subsection (7)(c)(ii) refuses to have a support person
210 present in the interview, the interviewer shall document, in writing, the refusal and the reasons
211 for the refusal.
212 (iv) The division shall track the number of interviews under this Subsection (7) where
213 a child refuses to have a support person present for each interviewer, in order to determine
214 whether a particular interviewer has a higher incidence of refusals than other interviewers.
215 (8) The division shall cooperate with law enforcement investigations regarding the
216 alleged perpetrator.
217 (9) The division may not close an investigation solely on the grounds that the division
218 investigator is unable to locate the child until all reasonable efforts have been made to locate
219 the child and family members including:
220 (a) visiting the home at times other than normal work hours;
221 (b) contacting local schools;
222 (c) contacting local, county, and state law enforcement agencies; and
223 (d) checking public assistance records.
224 Section 3. Section 62A-4a-205 is amended to read:
225 62A-4a-205. Child and family plan -- Parent-time.

226 (1) No more than 45 days after a child enters the temporary custody of the division, the
227 child's child and family plan shall be finalized.
228 (2) (a) The division shall use an interdisciplinary team approach in developing each
229 child and family plan.
230 (b) The interdisciplinary team described in Subsection (2)(a) shall include, but is not
231 limited to, representatives from the following fields:
232 (i) mental health;
233 (ii) education; and
234 (iii) if appropriate, law enforcement.
235 (3) (a) The division shall involve all of the following in the development of a child's
236 child and family plan:
237 (i) both of the child's natural parents, unless the whereabouts of a parent are unknown;
238 (ii) the child;
239 (iii) the child's foster parents; and
240 (iv) if appropriate, the child's stepparent.
241 (b) In relation to all information considered by the division in developing a child and
242 family plan, additional weight and attention shall be given to the input of the child's natural and
243 foster parents upon their involvement pursuant to Subsections (3)(a)(i) and (iii).
244 (c) (i) The division shall make a substantial effort to develop a child and family plan
245 with which the child's parents agree.
246 (ii) If a parent does not agree with a child and family plan:
247 (A) the division shall strive to resolve the disagreement between the division and the
248 parent; and
249 (B) if the disagreement is not resolved, the division shall inform the court of the
250 disagreement.
251 (4) A copy of the child and family plan shall, immediately upon completion, or as soon
252 as reasonably possible thereafter, be provided to the:
253 (a) guardian ad litem;

254 (b) child's natural parents; and
255 (c) child's foster parents.
256 (5) Each child and family plan shall:
257 (a) specifically provide for the safety of the child, in accordance with federal law; and
258 (b) clearly define what actions or precautions will, or may be, necessary to provide for
259 the health, safety, protection, and welfare of the child.
260 (6) The child and family plan shall set forth, with specificity, at least the following:
261 (a) the reason the child entered into the custody of the division;
262 (b) documentation of the:
263 (i) reasonable efforts made to prevent placement of the child in the custody of the
264 division; or
265 (ii) emergency situation that existed and that prevented the reasonable efforts described
266 in Subsection (6)(b)(i), from being made;
267 (c) the primary permanency goal for the child and the reason for selection of that goal;
268 (d) the concurrent permanency goal for the child and the reason for the selection of that
269 goal;
270 (e) if the plan is for the child to return to the child's family:
271 (i) specifically what the parents must do in order to enable the child to be returned
272 home;
273 (ii) specifically how the requirements described in Subsection (6)(e)(i) may be
274 accomplished; and
275 (iii) how the requirements described in Subsection (6)(e)(i) will be measured;
276 (f) the specific services needed to reduce the problems that necessitated placing the
277 child in the division's custody;
278 (g) the name of the person who will provide for and be responsible for case
279 management;
280 (h) subject to Subsection (10), a parent-time schedule between the natural parent and
281 the child;

282 (i) subject to Subsection (7), the health and mental health care to be provided to
283 address any known or diagnosed mental health needs of the child;
284 (j) if residential treatment rather than a foster home is the proposed placement, a
285 requirement for a specialized assessment of the child's health needs including an assessment of
286 mental illness and behavior and conduct disorders; and
287 (k) social summaries that include case history information pertinent to case planning.
288 (7) (a) Subject to Subsection (7)(b), in addition to the information required under
289 Subsection (6)(i), the plan shall include a specialized assessment of the medical and mental
290 health needs of a child, if the child:
291 (i) is placed in residential treatment; and
292 (ii) has medical or mental health issues that need to be addressed.
293 (b) Notwithstanding Subsection (7)(a), a parent shall retain the right to seek a separate
294 medical or mental health diagnosis of the parent's child from a licensed practitioner of the
295 parent's choice.
296 (8) (a) Each child and family plan shall be specific to each child and the child's family,
297 rather than general.
298 (b) The division shall train its workers to develop child and family plans that comply
299 with:
300 (i) federal mandates; and
301 (ii) the specific needs of the particular child and the child's family.
302 (c) All child and family plans and expectations shall be individualized and contain
303 specific time frames.
304 (d) Subject to Subsection (8)(h), child and family plans shall address problems that:
305 (i) keep a child in placement; and
306 (ii) keep a child from achieving permanence in the child's life.
307 (e) Each child and family plan shall be designed to minimize disruption to the normal
308 activities of the child's family, including employment and school.
309 (f) In particular, the time, place, and amount of services, hearings, and other

310 requirements ordered by the court in the child and family plan shall be designed, as much as
311 practicable, to help the child's parents maintain or obtain employment.
312 (g) The child's natural parents, foster parents, and where appropriate, stepparents, shall
313 be kept informed of and supported to participate in important meetings and procedures related
314 to the child's placement.
315 (h) For purposes of Subsection (8)(d), a child and family plan may only include
316 requirements that:
317 (i) address findings made by the court; or
318 (ii) (A) are requested or consented to by a parent or guardian of the child; and
319 (B) are agreed to by the division and the guardian ad litem.
320 (9) (a) Except as provided in Subsection (9)(b), with regard to a child who is three
321 years of age or younger, if the goal is not to return the child home, the permanency plan for that
322 child shall be adoption.
323 (b) Notwithstanding Subsection (9)(a), if the division documents to the court that there
324 is a compelling reason that adoption, reunification, guardianship, and [kinship] a placement
325 described in Subsection 78-3a-306 (6)(e) are not in the child's best interest, the court may order
326 another planned permanent living arrangement in accordance with federal law.
327 (10) (a) Except as provided in Subsection (10)(b), parent-time may only be denied by a
328 court order issued pursuant to Subsections 78-3a-311 (2)(a)(ii) and (b).
329 (b) Notwithstanding Subsection (10)(a), the person designated by the division or a
330 court to supervise a parent-time session may deny parent-time for that session if the supervising
331 person determines that, based on the parent's condition, it is necessary to deny parent-time in
332 order to:
333 (i) protect the physical safety of the child;
334 (ii) protect the life of the child; or
335 (iii) consistent with Subsection (10)(c), prevent the child from being traumatized by
336 contact with the parent.
337 (c) In determining whether the condition of the parent described in Subsection (10)(b)

338 will traumatize a child, the person supervising the parent-time session shall consider the impact
339 that the parent's condition will have on the child in light of:
340 (i) the child's fear of the parent; and
341 (ii) the nature of the alleged abuse or neglect.
342 Section 4. Section 62A-4a-206.1 is amended to read:
343 62A-4a-206.1. Foster parent's preference upon child's reentry into foster care.
344 When a child reenters the temporary custody or the custody of the division, and is to be
345 placed in foster care, the child's former foster parents shall be notified [immediately]. Upon a
346 determination of their willingness and ability to safely and appropriately care for the child,
347 those foster parents shall be given a preference for placement of the child.
348 Section 5. Section 62A-4a-209 is amended to read:
349 62A-4a-209. Emergency placement.
350 (1) The division may use an emergency [kinship] placement under Subsection
351 62A-4a-202.1 (4)(b)(ii) when:
352 (a) the case worker has made the determination that:
353 (i) the child's home is unsafe;
354 (ii) removal is necessary under the provisions of Section 62A-4a-202.1 ; and
355 (iii) the child's custodial parent or guardian will agree to not remove the child from the
356 [relative's] home [who] of the person that serves as the [kinship] placement and not have any
357 contact with the child until after the shelter hearing required by Section 78-3a-306 ;
358 (b) a [relative] person, with preference being given [to a noncustodial parent in
359 accordance with Section 78-3a-307 ] in accordance with Subsection (3), can be identified who
360 has the ability and is willing to provide care for the child who would otherwise be placed in
361 shelter care, including:
362 (i) taking the child to medical, mental health, dental, and educational appointments at
363 the request of the division; and
364 (ii) [the relative has the ability to make] making the child available to division services
365 and the guardian ad litem; and

366 (c) the [relative] person described in Subsection (1)(b) agrees to care for the child on
367 an emergency basis under the following conditions:
368 (i) the [relative] person meets the criteria for an emergency [kinship] placement under
369 Subsection (2);
370 (ii) the [relative] person agrees to not allow the custodial parent or guardian to have
371 any contact with the child until after the shelter hearing unless authorized by the division in
372 writing;
373 (iii) the [relative] person agrees to contact law enforcement and the division if the
374 custodial parent or guardian attempts to make unauthorized contact with the child;
375 (iv) the [relative] person agrees to allow the division and the child's guardian ad litem
376 to have access to the child;
377 (v) the [relative] person has been informed and understands that the division may
378 continue to search for other possible [kinship] placements for long-term care, if needed;
379 (vi) the [relative] person is willing to assist the custodial parent or guardian in
380 reunification efforts at the request of the division, and to follow all court orders; and
381 (vii) the child is comfortable with the [relative] person.
382 (2) Before the division places a child in an emergency [kinship] placement, the division
383 [must]:
384 (a) may request the name of a reference and [when possible,] may contact the reference
385 [and] to determine the answer to the following questions:
386 (i) would the person identified as a reference place a child in the home of the
387 emergency [kinship] placement; and
388 (ii) are there any other relatives or friends to consider as a possible emergency or
389 long-term placement for the child;
&