H.B. 51

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37 78-30-4.14, as repealed and reenacted by Chapter 186, Laws of Utah 2006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) the criminal history check described in Subsection (1)(b)(ii)(B) shall be submitted
79 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) 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 Section 2. Section 78-30-4.13 is amended to read:
92 78-30-4.13. Notice of adoption proceedings.
93 (1) (a) An unmarried biological father, by virtue of the fact that he has engaged in a
94 sexual relationship with a woman:
95 (i) is considered to be on notice that a pregnancy and an adoption proceeding regarding
96 the child may occur; and
97 (ii) has a duty to protect his own rights and interests.
98 (b) An unmarried biological father is entitled to actual notice of a birth or an adoption
99 proceeding with regard to his child only as provided in this section.
100 (2) Notice of an adoption proceeding shall be served on each of the following persons:
101 (a) any person or agency whose consent or relinquishment is required under Section
102 78-30-4.14 , unless that right has been terminated by:
103 (i) waiver;
104 (ii) relinquishment;
105 (iii) consent; or
106 (iv) judicial action;
107 (b) any person who has initiated a paternity proceeding and filed notice of that action
108 with the state registrar of vital statistics within the Department of Health, in accordance with
109 Subsection (3);
110 (c) any legally appointed custodian or guardian of the adoptee;
111 (d) the petitioner's spouse, if any, only if the petitioner's spouse has not joined in the
112 petition;
113 (e) the adoptee's spouse, if any;
114 (f) any person who, prior to the time the mother executes her consent for adoption or
115 relinquishes the child for adoption, is recorded on the birth certificate as the child's father, with
116 the knowledge and consent of the mother;
117 (g) any person who is:
118 (i) openly living in the same household with the child at the time the consent is
119 executed or relinquishment made; and
120 (ii) holding himself out to be the child's father; and

121 (h) any person who is married to the child's mother at the time she executes her consent
122 to the adoption or relinquishes the child for adoption.
123 (3) (a) In order to preserve any right to notice and consent, an unmarried, biological
124 father may, consistent with Subsection (3)(d):
125 (i) initiate proceedings in a district court of the state of Utah to establish paternity
126 under Title 78, Chapter 45g, Utah Uniform Parentage Act; and
127 (ii) file a notice of the initiation of the proceedings described in Subsection (3)(a)(i)
128 with the state registrar of vital statistics within the Department of Health.
129 (b) If the unmarried, biological father does not know the county in which the birth
130 mother resides, he may initiate his action in any county, subject to a change in trial pursuant to
131 Section 78-13-7 .
132 (c) The Department of Health shall provide forms for the purpose of filing the notice
133 described in Subsection (3)(a)(ii), and make those forms available in the office of the county
134 health department in each county.
135 (d) The action and notice described in Subsection (3)(a):
136 (i) may be filed before or after the child's birth; and
137 (ii) shall be filed prior to the mother's:
138 (A) execution of consent to adoption of the child; or
139 (B) relinquishment of the child for adoption.
140 (4) Notice provided in accordance with this section need not disclose the name of the
141 mother of the child who is the subject of an adoption proceeding.
142 (5) The notice required by this section:
143 (a) may be served immediately after relinquishment or execution of consent;
144 (b) shall be served at least 30 days prior to the final dispositional hearing; [and]
145 (c) shall specifically state that the person served must respond to the petition within 30
146 days of service if he intends to intervene in or contest the adoption[.];
147 (d) shall state the consequences, described in Subsection (6)(b), for failure of a person
148 to file a motion for relief within 30 days after the day on which the person is served with notice
149 of an adoption proceeding;
150 (e) is not required to include, nor be accompanied by, a summons or a copy of the
151 petition for adoption; and

152 (f) shall state where the person may obtain a copy of the petition for adoption.
153 (6) (a) Any person who has been served with notice of an adoption proceeding and who
154 wishes to contest the adoption shall file a motion in the adoption proceeding:
155 (i) within 30 days after the day on which the person was served with notice of the
156 adoption proceeding;
157 (ii) that shall set forth specific relief sought; and
158 (iii) that shall be accompanied by a memorandum specifying the factual and legal
159 grounds upon which the motion is based.
160 (b) Any person who fails to file a motion for relief within 30 days after the day on
161 which the person was served with notice of the adoption proceeding:
162 (i) waives any right to further notice in connection with the adoption;
163 (ii) forfeits all rights in relation to the adoptee; and
164 (iii) is barred from thereafter bringing or maintaining any action to assert any interest in
165 the adoptee.
166 (7) Service of notice under this section shall be made as follows:
167 (a) (i) [With regard to] Subject to Subsection (5)(e), service on a person whose consent
168 is necessary under Section 78-30-4.14 [, service] shall be in accordance with the provisions of
169 the Utah Rules of Civil Procedure.
170 (ii) If service of a person described in Subsection (7)(a)(i) is by publication, the court
171 shall designate the content of the notice regarding the identity of the parties.
172 (iii) The notice described in this Subsection (7)(a) may not include the name of a
173 person seeking to adopt the adoptee.
174 (b) (i) Except as provided in Subsection (7)(b)(ii) to any other person for whom notice
175 is required under this section, service by certified mail, return receipt requested, is sufficient.
176 (ii) If the service described in Subsection (7)(b)(i) cannot be completed after two
177 attempts, the court may issue an order providing for service by publication, posting, or by any
178 other manner of service.
179 (c) Notice to a person who has initiated a paternity proceeding and filed notice of that
180 action with the state registrar of vital statistics in the Department of Health in accordance with
181 the requirements of Subsection (3), shall be served by certified mail, return receipt requested, at
182 the last address filed with the registrar.

183 (8) The notice required by this section may be waived in writing by the person entitled
184 to receive notice.
185 (9) Proof of service of notice on all persons for whom notice is required by this section
186 shall be filed with the court before the final dispositional hearing on the adoption.
187 (10) Notwithstanding any other provision of law, neither the notice of an adoption
188 proceeding nor any process in that proceeding is required to contain the name of the person or
189 persons seeking to adopt the adoptee.
190 (11) Except as to those persons whose consent to an adoption is required under Section
191 78-30-4.14 , the sole purpose of notice under this section is to enable the person served to:
192 (a) intervene in the adoption; and
193 (b) present evidence to the court relevant to the best interest of the child.
194 Section 3. Section 78-30-4.14 is amended to read:
195 78-30-4.14. Necessary consent to adoption or relinquishment for adoption.
196 (1) Except as provided in Subsection (2), consent to adoption of a child, or
197 relinquishment of a child for adoption, is required from:
198 (a) the adoptee, if the adoptee is more than 12 years of age, unless the adoptee does not
199 have the mental capacity to consent;
200 (b) both parents or the surviving parent of an adoptee who was conceived or born
201 within a marriage;
202 (c) the mother of an adoptee born outside of marriage;
203 (d) any biological parent who has been adjudicated to be the child's biological father by
204 a court of competent jurisdiction prior to the mother's execution of consent to adoption or her
205 relinquishment of the child for adoption;
206 (e) consistent with Subsection (3), any biological parent who has executed and filed a
207 voluntary declaration of paternity with the state registrar of vital statistics within the
208 Department of Health in accordance with Title 78, Chapter 45e, Voluntary Declaration of
209 Paternity Act, prior to the mother's execution of consent to adoption or her relinquishment of
210 the child for adoption;
211 (f) an unmarried biological father of an adoptee, only if he strictly complies with the
212 requirements of Subsections (4) through (8) and (10); and
213 (g) the person or agency to whom an adoptee has been relinquished and that is placing

214 the child for adoption.
215 (2) (a) The consent of a person described in Subsections (1)(b) through (g) is not
216 required if the adoptee is 18 years of age or older.
217 (b) The consent of a person described in Subsections (1)(b) through (f) is not required
218 if the person's parental rights relating to the adoptee have been terminated.
219 (3) For purposes of Subsection (1)(e), a voluntary declaration of paternity is considered
220 filed when it is entered into a database that:
221 (a) can be accessed by the Department of Health; and
222 (b) is designated by the state registrar of vital statistics as the official database for
223 voluntary declarations of paternity.
224 (4) Except as provided in Subsections (5)(a) and (10), and subject to Subsection (8),
225 with regard to a child who is placed with adoptive parents more than six months after birth,
226 consent of an unmarried biological father is not required unless the unmarried biological father:
227 (a) (i) developed a substantial relationship with the child by:
228 (A) visiting the child monthly, unless the unmarried biological father was physically or
229 financially unable to visit the child on a monthly basis; or
230 (B) engaging in regular communication with the child or with the person or authorized
231 agency that has lawful custody of the child;
232 (ii) took some measure of responsibility for the child and the child's future; and
233 (iii) demonstrated a full commitment to the responsibilities of parenthood by financial
234 support of the child of a fair and reasonable sum in accordance with the father's ability; or
235 (b) (i) openly lived with the child:
236 (A) (I) for a period of at least six months during the one-year period immediately
237 preceding the day on which the child is placed with adoptive parents; or
238 (II) if the child is less than one year old, for a period of at least six months during the
239 period of time beginning on the day on which the child is born and ending on the day on which
240 the child is placed with adoptive parents; and
241 (B) immediately preceding placement of the child with adoptive parents; and
242 (ii) openly held himself out to be the father of the child during the six-month period
243 described in Subsection (4)(b)(i)(A).
244 (5) (a) If an unmarried biological father was prevented from complying with a

245 requirement of Subsection (4) by the person or authorized agency having lawful custody of the
246 child, the unmarried biological father is not required to comply with that requirement.
247 (b) The subjective intent of an unmarried biological father, whether expressed or
248 otherwise, that is unsupported by evidence that the requirements in Subsection (4) have been
249 met, shall not preclude a determination that the father failed to meet the requirements of
250 Subsection (4).
251 (6) Except as provided in Subsection (10), and subject to Subsection (8), with regard to
252 a child who is six months of age or less at the time the child is placed with adoptive parents,
253 consent of an unmarried biological father is not required unless, prior to the time the mother
254 executes her consent for adoption or relinquishes the child for adoption, the unmarried
255 biological father:
256 (a) initiates proceedings in a district court of the state of Utah to establish paternity
257 under Title 78, Chapter 45g, Utah Uniform Parentage Act;
258 (b) files with the court that is presiding over the paternity proceeding a sworn affidavit:
259 (i) stating that he is fully able and willing to have full custody of the child;
260 (ii) setting forth his plans for care of the child; and
261 (iii) agreeing to a court order of child support and the payment of expenses incurred in
262 connection with the mother's pregnancy and the child's birth;
263 (c) consistent with Subsection (7), files notice of the commencement of paternity
264 proceedings, described in Subsection (6)(a), with the state registrar of vital statistics within the
265 Department of Health, in a confidential registry established by the department for that purpose;
266 and
267 (d) offered to pay and paid a fair and reasonable amount of the expenses incurred in
268 connection with the mother's pregnancy and the child's birth, in accordance with his financial
269 ability, unless:
270 (i) he did not have actual knowledge of the pregnancy;
271 (ii) he was prevented from paying the expenses by the person or authorized agency
272 having lawful custody of the child; or
273 (iii) the mother refuses to accept the unmarried biological father's offer to pay the
274 expenses described in this Subsection (6)(d).
275 (7) The notice described in Subsection (6)(c) is considered filed when it is entered into

276 the registry described in Subsection (6)(c).
277 (8) Consent of an unmarried biological father is not required under this section if:
278 (a) the court determines, in accordance with the requirements and procedures of Title
279 78, Chapter 3a, Part 4, Termination of Parental Rights Act, that the unmarried biological
280 father's rights should be terminated, based on the petition of any interested party; or
281 (b) (i) a declaration of paternity declaring the unmarried biological father to be the
282 father of the child is rescinded under Section 78-45g-306 ; and
283 (ii) the unmarried biological father fails to comply with Subsection (6) within ten
284 business days after the day that notice of the rescission described in Subsection (8)(b)(i) is
285 mailed by the Office of Vital Records within the Department of Health as provided in Section
286 78-45g-306 .
287 (9) Unless the adoptee is conceived or born within a marriage, the petitioner in an
288 adoption proceeding shall, prior to entrance of a final decree of adoption, file with the court a
289 certificate from the state registrar of vital statistics within the Department of Health, stating:
290 (a) that a diligent search has been made of the registry of notices from unmarried
291 biological fathers described in Subsection (6)(c); and
292 (b) (i) that no filing has been found pertaining to the father of the child in question; or
293 (ii) if a filing is found, the name of the putative father and the time and date of filing.
294 (10) (a) For purposes of this Subsection (10), "qualifying circumstance" means that, at
295 any point during the time period beginning at the conception of the child and ending at the time
296 the mother executed a consent to adoption or relinquishment of the child for adoption:
297 (i) the child or the child's mother resided, on a permanent or temporary basis, in the
298 state of Utah;
299 (ii) the mother intended to give birth to the child in the state of Utah;
300 (iii) the child was born in the state of Utah; or
301 (iv) the mother intended to execute a consent to adoption or relinquishment of the child
302 for adoption:
303 (A) in the state of Utah; or
304 (B) under the laws of the state of Utah.
305 (b) For purposes of Subsection (10)(c)(i), a court shall consider the totality of the
306 circumstances when determining whether an unmarried biological father has demonstrated a

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

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

369 (3) Evidence considered at the custody hearing may include:
370 (a) evidence of psychological or emotional bonds that the child has formed with a third
371 person, including the prospective adoptive parent; and
372 (b) any detriment that a change in custody may cause the child.
373 (4) The fact that a person relinquished a child for adoption or consented to the adoption
374 may not be considered as evidence that it is not in the child's best interest for custody to be
375 awarded to such person or that:
376 (a) the person is unfit or incompetent to be a parent;
377 (b) the person has neglected or abandoned the child; or
378 (c) the person is not interested in having custody of the child.
379 (5) Any custody order entered pursuant to this section may also:
380 (a) include provisions for:
381 (i) parent-time by a biological parent; or
382 (ii) visitation by an interested third party; and
383 (b) provide for the financial support of the child.
384 (6) (a) If a person or entity whose consent is required for an adoption under Subsection
385 78-30-4.14 (1)(a) or (g) refuses to consent, the court shall proceed with an evidentiary hearing
386 and award custody as set forth in Subsection (2).
387 (b) The court may also finalize the adoption if doing so is in the best interest of the
388 child.
389 (