H.B. 36

This document includes House Floor Amendments incorporated into the bill on Wed, Jan 23, 2008 at 5:02 PM by ddonat. --> 1

CHILD WELFARE AMENDMENTS
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Wayne A. Harper
5 Senate Sponsor: Margaret Dayton
6
7 LONG TITLE
8 Committee Note:
9 The Health and Human Services Interim Committee recommended this bill.
10 The Child Welfare Legislative Oversight Panel recommended this bill.
11 General Description:
12 This bill amends background check and child placement provisions in the Utah Human
13 Services Code and the Juvenile Court Act of 1996.
14 Highlighted Provisions:
15 This bill:
16 . defines terms;
17 . provides that the requirement that a child in state custody may not be placed with a
18 prospective foster or adoptive parent until the Department of Human Services
19 conducts a comprehensive background check, does not prohibit the Division of
20 Child and Family Services or a court placing the child with a noncustodial parent, or
21 with a relative, pending further investigation of the appropriateness of the
22 placement;
23 . provides exceptions to certain background check requirements if the exceptions are
24 permitted by federal law or rule;
25 . modifies background check requirements for prospective foster or adoptive
26 placements;
27 . clarifies the rulemaking authority of the Office of Licensing, within the Department

28 of Human Services;
29 . provides that priority shall be given for placing a child with a noncustodial parent,
30 relative, or friend, over placing the child in a shelter;
31 . modifies provisions relating to the placement and custody of a child who has been
32 removed from the custody of the child's parents;
33 . provides that, in order to be considered a "willing relative or friend" for purposes of
34 determining placement of a child following a shelter care hearing, the friend or
35 relative must be willing to cooperate with the child's permanency goal;
36 . describes the limited background check or investigation that must be completed
37 before a child in state custody is placed with a noncustodial parent or relative; and
38 . makes technical changes.
39 Monies Appropriated in this Bill:
40 None
41 Other Special Clauses:
42 H. [ None ] This bill provides an immediate effective date. .H
43 Utah Code Sections Affected:
44 AMENDS:
45 62A-2-120, as last amended by Laws of Utah 2007, Chapter 152
46 62A-4a-202.1, as last amended by Laws of Utah 2007, Chapter 169
47 62A-4a-206, as last amended by Laws of Utah 2002, Chapter 306
48 62A-4a-209, as last amended by Laws of Utah 2007, Chapter 169
49 62A-5-103.5, as last amended by Laws of Utah 2007, Chapter 152
50 78-3a-306, as last amended by Laws of Utah 2007, Chapter 169
51 78-3a-307, as last amended by Laws of Utah 2007, Chapters 169 and 255
52 78-3a-307.1, as last amended by Laws of Utah 2007, Chapter 152
53 78-3a-315, as last amended by Laws of Utah 2002, Chapter 306
54 78-30-3.5, as last amended by Laws of Utah 2007, Chapter 152
55 78-30-3.6, as last amended by Laws of Utah 2007, Chapters 152 and 196
55a H. ENACTS:
55b 78-3a-307.5, Utah Code Annotated 1953 .H
56
57 Be it enacted by the Legislature of the state of Utah:
58 Section 1. Section 62A-2-120 is amended to read:

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

90 (i) licensing a prospective foster home; or
91 (ii) approving a prospective adoptive placement of a child in state custody.
92 (g) [In] Except as provided in Subsection (1)(h), in addition to the other requirements
93 of this section, if the background check of an applicant described in Subsection (1)(a) is being
94 conducted for the purpose of licensing a prospective foster home or approving a prospective
95 adoptive placement of a child in state custody, the office shall:
96 (i) check the child abuse and neglect registry in each state where each prospective
97 foster parent or prospective adoptive parent resided in the five years immediately preceding the
98 day on which the prospective foster parent or prospective adoptive parent applied to be a foster
99 parent or adoptive parent, to determine whether the prospective foster parent or prospective
100 adoptive parent is listed in the registry as having a substantiated or supported finding of child
101 abuse or neglect; and
102 (ii) check the child abuse and neglect registry in each state where each adult living in
103 the home of the prospective foster parent or prospective adoptive parent described in
104 Subsection (1)(g)(i) resided in the five years immediately preceding the day on which the
105 prospective foster parent or prospective adoptive parent applied to be a foster parent or
106 adoptive parent, to determine whether the adult is listed in the registry as having a substantiated
107 or supported finding of child abuse or neglect.
108 (h) The requirements under Subsections (1)(f) and (g) do not apply to the extent that:
109 (i) federal law or rule permits otherwise; or
110 (ii) the requirements would prohibit the Division of Child and Family Services or a
111 court from placing a child with:
112 (A) a noncustodial parent under Section 62A-4a-209 H. [ or ] , .H 78-3a-307 H. , or
112a 78-3a-307.5 .H ; or
113 (B) a relative, H. other than a noncustodial parent, .H under Section 62A-4a-209
113a H. [ or ] , .H 78-3a-307 H. , or 78795-3a-307.5 .H , pending completion of the
114 background check described in Subsections (1)(f) and (g).
115 [(h)] (i) The office shall make rules, in accordance with Title 63, Chapter 46a, Utah
116 Administrative Rulemaking Act, to implement the provisions of this Subsection (1) relating to
117 background checks.
118 (2) The office shall approve a person for whom identifying information is submitted
119 under Subsection (1) to have direct access to children or vulnerable adults in the licensee
120 program if:

121 (a) (i) the person is found to have no criminal history record; or
122 (ii) (A) the only convictions in the person's criminal history record are misdemeanors
123 or infractions not involving any of the offenses described in Subsection (3); and
124 (B) the date of the last conviction under Subsection (2)(a)(ii)(A) is more than five years
125 before the date of the search;
126 (b) the person is not listed in the statewide database of the Division of Aging and Adult
127 Services created by Section 62A-3-311.1 ;
128 (c) juvenile court records do not show that a court made a substantiated finding, under
129 Section 78-3a-320 , that the person committed a severe type of child abuse or neglect;
130 (d) the person is not listed in the Licensing Information System of the Division of
131 Child and Family Services created by Section 62A-4a-1006 ;
132 (e) the person has not pled guilty or no contest to a pending charge for any:
133 (i) felony;
134 (ii) misdemeanor listed in Subsection (3); or
135 (iii) infraction listed in Subsection (3); and
136 (f) for a person described in Subsection (1)(g), the registry check described in
137 Subsection (1)(g) does not indicate that the person is listed in a child abuse and neglect registry
138 of another state as having a substantiated or supported finding of a severe type of child abuse or
139 neglect as defined in Section 62A-4a-1002 .
140 (3) Except as provided in Subsection (8), unless at least ten years have passed since the
141 date of conviction, the office may not approve a person to have direct access to children or
142 vulnerable adults in the licensee's human services program if that person has been convicted of
143 an offense, whether a felony, misdemeanor, or infraction, that is:
144 (a) identified as a sexual offense, domestic violence, lewdness, assault, or battery;
145 (b) a violation of any pornography law, including sexual exploitation of a minor;
146 (c) prostitution;
147 (d) included in:
148 (i) Title 76, Chapter 5, Offenses Against the Person;
149 (ii) Title 76, Chapter 5a, Sexual Exploitation of Children; or
150 (iii) Title 76, Chapter 7, Offenses Against the Family;
151 (e) a violation of Section 76-6-103 , aggravated arson;

152 (f) a violation of Section 76-6-203 , aggravated burglary;
153 (g) a violation of Section 76-6-302 , aggravated robbery; or
154 (h) a conviction for an offense committed outside of the state that, if committed in the
155 state, would constitute a violation of an offense described in Subsections (3)(d) through (g).
156 (4) (a) Except as provided in Subsection (8), if a person for whom identifying
157 information is submitted under Subsection (1) is not approved by the office under Subsection
158 (2) or (3) to have direct access to children or vulnerable adults in the licensee program, the
159 office shall conduct a comprehensive review of criminal and court records and related
160 circumstances if the reason the approval is not granted is due solely to one or more of the
161 following:
162 (i) a conviction for:
163 (A) any felony not listed in Subsection (3);
164 (B) any misdemeanor or infraction, not listed in Subsection (3), within five years of the
165 date of the search;
166 (C) a protective order or ex parte protective order violation under Section 76-5-108 or
167 a similar statute in another state; or
168 (D) any felony, misdemeanor, or infraction listed in Subsection (3) if at least ten years
169 have passed since the date of conviction;
170 (ii) a plea of guilty or no contest to a pending:
171 (A) felony;
172 (B) misdemeanor listed in Subsection (3); or
173 (C) infraction listed in Subsection (3);
174 (iii) the person is listed in the statewide database of the Division of Aging and Adult
175 Services created by Section 62A-3-311.1 ;
176 (iv) juvenile court records show that a court made a substantiated finding, under
177 Section 78-3a-320 , that the person committed a severe type of child abuse or neglect;
178 (v) the person is listed in the Licensing Information System of the Division of Child
179 and Family Services created by Section 62A-4a-1006 ; or
180 (vi) the person is listed in a child abuse or neglect registry of another state as having a
181 substantiated or supported finding of a severe type of child abuse or neglect as defined in
182 Section 62A-4a-1002 .

183 (b) The comprehensive review under Subsection (4)(a) shall include an examination of:
184 (i) the date of the offense or incident;
185 (ii) the nature and seriousness of the offense or incident;
186 (iii) the circumstances under which the offense or incident occurred;
187 (iv) the age of the perpetrator when the offense or incident occurred;
188 (v) whether the offense or incident was an isolated or repeated incident;
189 (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
190 adult, including:
191 (A) actual or threatened, nonaccidental physical or mental harm;
192 (B) sexual abuse;
193 (C) sexual exploitation; and
194 (D) negligent treatment;
195 (vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric
196 treatment received, or additional academic or vocational schooling completed, by the person;
197 and
198 (viii) any other pertinent information.
199 (c) At the conclusion of the comprehensive review under Subsection (4)(a), the office
200 shall approve the person who is the subject of the review to have direct access to children or
201 vulnerable adults, unless it finds that approval will likely create a risk of harm to a child or
202 vulnerable adult.
203 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
204 office may make rules, consistent with this chapter, defining procedures for the comprehensive
205 review described in this Subsection (4).
206 (5) (a) For purposes of this Subsection (5), "directly supervised" means that the person
207 being supervised is under the uninterrupted visual and auditory surveillance of the person doing
208 the supervising.
209 (b) A licensee may not permit any person to have direct access to a child or a
210 vulnerable adult unless, subject to Subsection (5)(c), that person is:
211 (i) associated with the licensee and:
212 (A) approved by the office to have direct access to children or vulnerable adults under
213 this section; or

214 (B) (I) the office has not determined whether to approve that person to have direct
215 access to children or vulnerable adults;
216 (II) the information described in Subsection (1)(a), relating to that person, is submitted
217 to the department; and
218 (III) that person is directly supervised by a person associated with the licensee who is
219 approved by the office to have direct access to children or vulnerable adults under this section;
220 (ii) (A) not associated with the licensee; and
221 (B) directly supervised by a person associated with the licensee who is approved by the
222 office to have direct access to children or vulnerable adults under this section;
223 (iii) the parent or guardian of the child or vulnerable adult; or
224 (iv) a person approved by the parent or guardian of the child or vulnerable adult to
225 have direct access to the child or vulnerable adult.
226 (c) Notwithstanding Subsection (5)(b), a person may not have direct access to a child
227 or a vulnerable adult if that person is prohibited by court order from having that access.
228 (6) (a) Within 30 days after receiving the identifying information for a person under
229 Subsection (1), the office shall give written notice to the person and to the licensee or applicant
230 with whom the person is associated of:
231 (i) the office's decision regarding its background screening clearance and findings; and
232 (ii) a list of any convictions found in the search.
233 (b) With the notice described in Subsection (6)(a), the office shall also give to the
234 person the details of any comprehensive review conducted under Subsection (4).
235 (c) If the notice under Subsection (6)(a) states that the person is not approved to have
236 direct access to children or vulnerable adults, the notice shall further advise the persons to
237 whom the notice is given that either the person or the licensee or applicant with whom the
238 person is associated, or both, may, under Subsection 62A-2-111 (2), request a hearing in the
239 department's Office of Administrative Hearings, to challenge the office's decision.
240 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
241 office shall make rules, consistent with this chapter:
242 (i) defining procedures for the challenge of its background screening decision
243 described in this Subsection (6); and
244 (ii) expediting the process for renewal of a license under the requirements of this

245 section and other applicable sections.
246 (7) Notwithstanding Subsection (1)(a), this section does not apply to an applicant for
247 an initial license, or license renewal, to operate a substance abuse program that provides
248 services to adults only.
249 (8) (a) Notwithstanding Subsections (2) through (4), the office may not approve or
250 license a person as a prospective foster parent or a prospective adoptive parent if the person has
251 been convicted of:
252 (i) a felony involving conduct that constitutes any of the following:
253 (A) child abuse, as described in Section 76-5-109 ;
254 (B) commission of domestic violence in the presence of a child, as described in Section
255 76-5-109.1 ;
256 (C) abuse or neglect of a disabled child, as described in Section 76-5-110 ;
257 (D) endangerment of a child, as described in Section 76-5-112.5 ;
258 (E) aggravated murder, as described in Section 76-5-202 ;
259 (F) murder, as described in Section 76-5-203 ;
260 (G) manslaughter, as described in Section 76-5-205 ;
261 (H) child abuse homicide, as described in Section 76-5-208 ;
262 (I) homicide by assault, as described in Section 76-5-209 ;
263 (J) kidnapping, as described in Section 76-5-301 ;
264 (K) child kidnapping, as described in Section 76-5-301.1 ;
265 (L) aggravated kidnapping, as described in Section 76-5-302 ;
266 (M) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
267 (N) an offense described in Title 76, Chapter 5a, Sexual Exploitation of Children;
268 (O) aggravated arson, as described in Section 76-6-103 ;
269 (P) aggravated burglary, as described in Section 76-6-203 ;
270 (Q) aggravated robbery, as described in Section 76-6-302 ; or
271 (R) domestic violence, as described in Section 77-36-1 ; or
272 (ii) an offense committed outside the state that, if committed in the state, would
273 constitute a violation of an offense described in Subsection (8)(a)(i).
274 (b) Notwithstanding Subsections (2) through (4), the office may not approve or license
275 a person as a prospective foster parent or a prospective adoptive parent if, within the five years

276 immediately preceding the day on which the person would otherwise be approved or licensed,
277 the person has been convicted of a felony involving conduct that constitutes any of the
278 following:
279 (i) aggravated assault, as described in Section 76-5-103 ;
280 (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5 ;
281 (iii) mayhem, as described in Section 76-5-105 ;
282 (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
283 (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
284 (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
285 Act;
286 (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
287 Precursor Act; or
288 (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
289 Section 2. Section 62A-4a-202.1 is amended to read:
290 62A-4a-202.1. Entering home of a child -- Taking a child into protective custody
291 -- Caseworker accompanied by peace officer -- Preventive services -- Shelter facility or
292 emergency placement.
293 (1) A peace officer or child welfare worker may not enter the home of a child who is
294 not under the jurisdiction of the court, remove a child from the child's home or school, or take a
295 child into protective custody unless authorized under Subsection 78-3a-106 (2).
296 (2) A child welfare worker within the division may take action under Subsection (1)
297 accompanied by a peace officer, or without a peace officer when a peace officer is not
298 reasonably available.
299 (3) (a) If possible, consistent with the child's safety and welfare, before taking a child
300 into protective custody, the child welfare worker shall also determine whether there are
301 services available that, if provided to a parent or guardian of the child, would eliminate the
302 need to remove the child from the custody of the child's parent or guardian.
303 (b) If the services described in Subsection (3)(a) are reasonably available, they shall be
304 utilized.
305 (c) In determining whether the services described in Subsection (3)(a) are reasonably
306 available, and in making reasonable efforts to provide those services, the child's health, safety,

307 and welfare shall be the child welfare worker's paramount concern.
308 (4) (a) A child removed or taken into custody under this section may not be placed or
309 kept in a secure detention facility pending court proceedings unless the child is detainable
310 based on guidelines promulgated by the Division of Juvenile Justice Services.
311 (b) A child removed from the custody of the child's parent or guardian but who does
312 not require physical restriction shall be given temporary care in:
313 (i) a shelter facility; or
314 (ii) an emergency placement in accordance with Section 62A-4a-209 .
315 (c) When making a placement under Subsection (4)(b), the Division of Child and
316 Family Services shall give priority to a placement with a noncustodial parent, relative, or
317 friend, in accordance with Section 62A-4a-209 .
318 Section 3. Section 62A-4a-206 is amended to read:
319 62A-4a-206. Process for removal of a child from foster family -- Procedural due
320 process.
321 (1) (a) The Legislature finds that, except with regard to a child's natural parent or legal
322 guardian, a foster family has a very limited but recognized interest in its familial relationship
323 with a foster child who has been in the care and custody of that family. In making
324 determinations regarding removal of a child from a foster home, the division may not dismiss
325 the foster family as a mere collection of unrelated individuals.
326 (b) The Legislature finds that children in the temporary custody and custody of the
327 division are experiencing multiple changes in foster care placements with little or no
328 documentation, and that numerous studies of child growth and development emphasize the
329 importance of stability in foster care living arrangements.
330 (c) For the reasons described in Subsections (1)(a) and (b), the division shall provide
331 procedural due process for a foster family prior to removal of a foster child from their home,
332 regardless of the length of time the child has been in that home, unless removal is for the
333 purpose of:
334 (i) returning the child to the child's natural parent or legal guardian;
335 (ii) immediately placing the child in an approved adoptive home;
336 (iii) placing the child with a relative, as defined in Subsection 78-3a-307 [(5)(d)](1)(b),
337 who obtained custody or asserted an interest in the child within the preference period described

338 in Subsection 78-3a-307 [(8)](18)(a); or
339 (iv) placing an Indian child in accordance with preplacement preferences and other
340 requirements described in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915.
341 (2) (a) The division shall maintain and utilize due process procedures for removal of a
342 foster child from a foster home, in accordance with the procedures and requirements of Title
343 63, Chapter 46b, Administrative Procedures Act.
344 (b) Those procedures shall include requirements for:
345 (i) personal communication with and explanation to foster parents prior to removal of
346 the child; and
347 (ii) an opportunity for foster parents to present their information and concerns to the
348 division and to request a review by a third party neutral fact finder prior to removal of the
349 child.
350 (c) If the division determines that there is a reasonable basis to believe that the child is
351 in danger or that there is a substantial threat of danger to the health or welfare of the child, it
352 shall place the child in emergency foster care during the pendency of the procedures described
353 in this subsection, instead of making another foster care placement.
354 (3) If the division removes a child from a foster home based upon the child's statement
355 alone, the division shall initiate and expedite the processes described in Subsection (2). The
356 division may take no formal action with regard to that foster parent's license until after those
357 processes, in addition to any other procedure or hearing required by law, have been completed.
358 (4) When a complaint is made to the division by a foster child against a foster parent,
359 the division shall, within 30 business days, provide the foster parent with information regarding
360 the specific nature of the complaint, the time and place of the alleged incident, and who was
361 alleged to have been involved.
362 (5) Whenever the division places a child in a foster home, it shall provide the foster
363 parents with:
364 (a) notification of the requirements of this section;
365 (b) a written description of the procedures enacted by the division pursuant to
366 Subsection (2) and how to access those processes; and
367 (c) written notification of the foster parents' ability to petition the juvenile court
368 directly for review of a decision to remove a foster child who has been in their custody for 12

369 months or longer, in accordance w