H.B. 31 Enrolled

1

CHILD WELFARE DEFINITIONS
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Wayne A. Harper
5 Senate Sponsor: Margaret Dayton
6
7 LONG TITLE
8 General Description:
9 This bill amends definitions and related provisions in the Child and Family Services
10 chapter of the Utah Human Services Code and in the Juvenile Court Act of 1996.
11 Highlighted Provisions:
12 This bill:
13 . eliminates overlapping portions of definitions;
14 . modifies definitions;
15 . adds new definitions;
16 . simplifies and consolidates definitions;
17 . establishes consistency between definitions in the Child and Family Services chapter
18 of the Utah Human Services Code and the Juvenile Court Act of 1996;
19 . modifies portions of the Child and Family Services chapter of the Utah Human
20 Services Code and the Juvenile Court Act of 1996 to conform with the changes to,
21 and addition of, definitions in this bill; and
22 . makes technical changes.
23 Monies Appropriated in this Bill:
24 None
25 Other Special Clauses:
26 This bill coordinates with H.B. 78 by providing technical amendments.
27 Utah Code Sections Affected:
28 AMENDS:
29 62A-4a-101, as last amended by Laws of Utah 2006, Chapters 75, and 281

30 62A-4a-107.5, as last amended by Laws of Utah 2000, Chapter 290
31 62A-4a-113, as last amended by Laws of Utah 2002, Chapter 149
32 62A-4a-201, as last amended by Laws of Utah 2006, Chapter 75
33 62A-4a-202.4, as last amended by Laws of Utah 1998, Chapter 263
34 62A-4a-202.6, as last amended by Laws of Utah 2006, Chapter 55
35 62A-4a-203, as last amended by Laws of Utah 2006, Chapter 75
36 62A-4a-301, as renumbered and amended by Laws of Utah 1994, Chapter 260
37 62A-4a-302, as renumbered and amended by Laws of Utah 1994, Chapter 260
38 62A-4a-303, as renumbered and amended by Laws of Utah 1994, Chapter 260
39 62A-4a-304, as last amended by Laws of Utah 1996, Chapter 242
40 62A-4a-305, as renumbered and amended by Laws of Utah 1994, Chapter 260
41 62A-4a-306, as renumbered and amended by Laws of Utah 1994, Chapter 260
42 62A-4a-309, as last amended by Laws of Utah 2000, Chapter 321
43 62A-4a-311, as last amended by Laws of Utah 2003, Chapter 246
44 62A-4a-401, as renumbered and amended by Laws of Utah 1994, Chapter 260
45 62A-4a-402, as last amended by Laws of Utah 2006, Chapter 281
46 62A-4a-403, as last amended by Laws of Utah 1999, Chapter 21
47 62A-4a-405, as renumbered and amended by Laws of Utah 1994, Chapter 260
48 62A-4a-406, as renumbered and amended by Laws of Utah 1994, Chapter 260
49 62A-4a-409, as last amended by Laws of Utah 2006, Chapter 75
50 62A-4a-411, as renumbered and amended by Laws of Utah 1994, Chapter 260
51 62A-4a-412, as last amended by Laws of Utah 2006, Chapters 77, and 281
52 62A-4a-414, as last amended by Laws of Utah 2007, Chapter 169
53 62A-4a-802, as last amended by Laws of Utah 2002, Chapter 246
54 62A-4a-1002, as enacted by Laws of Utah 2006, Chapter 77
55 62A-4a-1003, as last amended by Laws of Utah 2007, Chapter 152
56 62A-4a-1005, as renumbered and amended by Laws of Utah 2006, Chapter 77
57 62A-4a-1006, as renumbered and amended by Laws of Utah 2006, Chapter 77

58 62A-4a-1007, as renumbered and amended by Laws of Utah 2006, Chapter 77
59 62A-4a-1009, as renumbered and amended by Laws of Utah 2006, Chapter 77
60 62A-4a-1010, as renumbered and amended by Laws of Utah 2006, Chapter 77
61 76-7-304, as last amended by Laws of Utah 2006, Chapter 207
62 78-3a-103, as last amended by Laws of Utah 2006, Chapters 75, 97, and 281
63 78-3a-301, as last amended by Laws of Utah 2007, Chapter 111
64 78-3a-306, as last amended by Laws of Utah 2007, Chapter 169
65 78-3a-307.1, as last amended by Laws of Utah 2007, Chapter 152
66 78-3a-311, as last amended by Laws of Utah 2006, Chapters 75, and 97
67 78-3a-314, as last amended by Laws of Utah 2007, Chapter 152
68 78-3a-318, as enacted by Laws of Utah 1996, Chapter 1 and last amended by Laws of
69 Utah 1996, Chapter 318
70 78-3a-403, as last amended by Laws of Utah 1996, Chapter 318
71 78-3a-407, as last amended by Laws of Utah 2006, Chapter 281
72 78-3a-408, as last amended by Laws of Utah 2005, Chapter 95
73 78-3a-801, as last amended by Laws of Utah 2007, Chapter 81
74
75 Be it enacted by the Legislature of the state of Utah:
76 Section 1. Section 62A-4a-101 is amended to read:
77 62A-4a-101. Definitions.
78 As used in this chapter:
79 [(1) (a) "Abuse" means:]
80 [(i) actual or threatened nonaccidental physical or mental harm;]
81 [(ii) negligent treatment;]
82 [(iii) sexual exploitation; or]
83 [(iv) any sexual abuse.]
84 [(b) "Abuse" does not include:]
85 [(i) reasonable discipline or management of a child, including withholding privileges;]

86 [(ii) conduct described in Section 76-2-401 ; or]
87 [(iii) the use of reasonable and necessary physical restraint or force on a child:]
88 [(A) in self-defense;]
89 [(B) in defense of others;]
90 [(C) to protect the child; or]
91 [(D) to remove a weapon in the possession of a child for any of the reasons described in
92 Subsections (1)(b)(iii)(A) through (C).]
93 (1) "Abuse" is as defined in Section 78-3a-103 .
94 (2) "Adoption services" means:
95 (a) placing children for adoption;
96 (b) subsidizing adoptions under Section 62A-4a-105 ;
97 (c) supervising adoption placements until the adoption is finalized by the court;
98 (d) conducting adoption studies;
99 (e) preparing adoption reports upon request of the court; and
100 (f) providing postadoptive placement services, upon request of a family, for the purpose
101 of stabilizing a possible disruptive placement.
102 (3) "Board" means the Board of Child and Family Services established in accordance
103 with Sections 62A-1-105 , 62A-1-107 , and 62A-4a-102 .
104 (4) "Child" means, except as provided in Part 7, Interstate Compact on Placement of
105 Children, a person under 18 years of age.
106 (5) "Consumer" means a person who receives services offered by the division in
107 accordance with this chapter.
108 (6) "Chronic [physical] abuse" means repeated or patterned [physical] abuse.
109 (7) "Chronic neglect" means [a] repeated or patterned [failure or refusal by a parent,
110 guardian, or custodian to provide necessary care for a child's safety, morals, or well-being]
111 neglect.
112 [(8) "Chronic emotional abuse" means repeated or patterned emotional abuse.]
113 [(9)] (8) "Custody," with regard to the division, means the custody of a minor in the

114 division as of the date of disposition.
115 [(10)] (9) "Day-care services" means care of a child for a portion of the day which is
116 less than 24 hours:
117 (a) in the child's own home by a responsible person; or
118 (b) outside of the child's home in a:
119 (i) day-care center;
120 (ii) family group home; or
121 (iii) family child care home.
122 [(11)] (10) "Dependent child" or "dependency" means a child, or the condition of a
123 child, who is homeless or without proper care through no fault of the child's parent, guardian, or
124 custodian.
125 [(12)] (11) "Director" means the director of the Division of Child and Family Services.
126 [(13)] (12) "Division" means the Division of Child and Family Services.
127 [(14) (a)] (13) "Domestic violence services" means:
128 [(i)] (a) temporary shelter, treatment, and related services to [persons who are victims
129 of abuse and their dependent children; and]:
130 (i) a person who is a victim of abuse, as defined in Section 30-6-1 ; and
131 (ii) the dependent children of a person described in Subsection (13)(a)(i); and
132 [(ii)] (b) treatment services for [domestic violence perpetrators. (b) As used in this
133 Subsection (14): (i) "abuse" means the same as that term is defined in Section 30-6-1 ; and (ii)
134 "domestic violence perpetrator" means] a person who is alleged to have committed, has been
135 convicted of, or has pled guilty to, an act of domestic violence as defined in Section 77-36-1 .
136 (14) "Harm" is as defined in Section 78-3a-103 .
137 (15) "Homemaking service" means the care of individuals in their domiciles, and help
138 given to individual caretaker relatives to achieve improved household and family management
139 through the services of a trained homemaker.
140 (16) "Incest" is as defined in Section 78-3a-103 .
141 [(16)] (17) "Minor" means, except as provided in Part 7, Interstate Compact on

142 Placement of Children:
143 (a) a child; or
144 (b) a person:
145 (i) who is at least 18 years of age and younger than 21 years of age; and
146 (ii) for whom the division has been specifically ordered by the juvenile court to provide
147 services.
148 (18) "Molestation" is as defined in Section 78-3a-103 .
149 [(17)] (19) "Natural parent" means a minor's biological or adoptive parent, and includes
150 a minor's noncustodial parent.
151 [(18) (a) "Neglect" means:]
152 [(i) abandonment of a child, except as provided in Part 8, Safe Relinquishment of a
153 Newborn Child;]
154 [(ii) subjecting a child to mistreatment or abuse;]
155 [(iii) lack of proper parental care by reason of the fault or habits of the parent, guardian,
156 or custodian;]
157 [(iv) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
158 subsistence, education, or medical care, including surgery or psychiatric services when required,
159 or any other care necessary for the child's health, safety, morals, or well-being; or]
160 [(v) a child at risk of being neglected or abused because another child in the same home
161 is neglected or abused.]
162 [(b) The aspect of neglect relating to education, described in Subsection (18)(a)(iv),
163 means that, after receiving notice that a child has been frequently absent from school without
164 good cause, or that the child has failed to cooperate with school authorities in a reasonable
165 manner, a parent or guardian fails to make a good faith effort to ensure that the child receives
166 an appropriate education.]
167 [(c) A parent or guardian legitimately practicing religious beliefs and who, for that
168 reason, does not provide specified medical treatment for a child, is not guilty of neglect.]
169 [(d) (i) Notwithstanding Subsection (18)(a), a health care decision made for a child by

170 the child's parent or guardian does not constitute neglect unless the state or other party to the
171 proceeding shows, by clear and convincing evidence, that the health care decision is not
172 reasonable and informed.]
173 [(ii) Nothing in Subsection (18)(d)(i) may prohibit a parent or guardian from exercising
174 the right to obtain a second health care opinion.]
175 (20) "Neglect" is as defined in Section 78-3a-103 .
176 [(19)] (21) "Protective custody," with regard to the division, means the shelter of a
177 child by the division from the time the child is removed from the child's home until the earlier of:
178 (a) the shelter hearing; or
179 (b) the child's return home.
180 [(20)] (22) "Protective services" means expedited services that are provided:
181 (a) in response to evidence of neglect, abuse, or dependency of a child;
182 (b) to a cohabitant who is neglecting or abusing a child, in order to:
183 (i) help the cohabitant develop recognition of the cohabitant's duty of care and of the
184 causes of neglect or abuse; and
185 (ii) strengthen the cohabitant's ability to provide safe and acceptable care; and
186 (c) in cases where the child's welfare is endangered:
187 (i) to bring the situation to the attention of the appropriate juvenile court and law
188 enforcement agency;
189 (ii) to cause a protective order to be issued for the protection of the child, when
190 appropriate; and
191 (iii) to protect the child from the circumstances that endanger the child's welfare
192 including, when appropriate:
193 (A) removal from the child's home;
194 (B) placement in substitute care; and
195 (C) petitioning the court for termination of parental rights.
196 (23) "Severe abuse" is as defined in Section 78-3a-103 .
197 [(21)] (24) "Severe neglect" [means neglect that causes or threatens to cause serious

198 harm to a child] is as defined in Section 78-3a-103 .
199 (25) "Sexual abuse" is as defined in Section 78-3a-103 .
200 (26) "Sexual exploitation" is as defined in Section 78-3a-103 .
201 [(22)] (27) "Shelter care" means the temporary care of a minor in a nonsecure facility.
202 [(23)] (28) "State" means:
203 (a) a state of the United States;
204 (b) the District of Columbia;
205 (c) the Commonwealth of Puerto Rico;
206 (d) the Virgin Islands;
207 (e) Guam;
208 (f) the Commonwealth of the Northern Mariana Islands; or
209 (g) a territory or possession administered by the United States.
210 [(24) "Severe emotional abuse" means emotional abuse that causes or threatens to
211 cause serious harm to a child.]
212 [(25) "Severe physical abuse" means physical abuse that causes or threatens to cause
213 serious harm to a child.]
214 [(26)] (29) "State plan" means the written description of the programs for children,
215 youth, and family services administered by the division in accordance with federal law.
216 [(27)] (30) "Status offense" means a violation of the law that would not be a violation
217 but for the age of the offender.
218 (31) "Substance abuse" is as defined in Section 78-3a-103 .
219 [(28)] (32) "Substantiated" or "substantiation" means a judicial finding based on a
220 preponderance of the evidence that abuse or neglect occurred. Each allegation made or
221 identified in a given case shall be considered separately in determining whether there should be a
222 finding of substantiated.
223 [(29)] (33) "Substitute care" means:
224 (a) the placement of a minor in a family home, group care facility, or other placement
225 outside the minor's own home, either at the request of a parent or other responsible relative, or

226 upon court order, when it is determined that continuation of care in the minor's own home
227 would be contrary to the minor's welfare;
228 (b) services provided for a minor awaiting placement; and
229 (c) the licensing and supervision of a substitute care facility.
230 [(30)] (34) "Supported" means a finding by the division based on the evidence available
231 at the completion of an investigation that there is a reasonable basis to conclude that abuse,
232 neglect, or dependency occurred. Each allegation made or identified during the course of the
233 investigation shall be considered separately in determining whether there should be a finding of
234 supported.
235 [(31)] (35) "Temporary custody," with regard to the division, means the custody of a
236 child in the division from the date of the shelter hearing until disposition.
237 [(32)] (36) "Transportation services" means travel assistance given to an individual with
238 escort service, if necessary, to and from community facilities and resources as part of a service
239 plan.
240 [(33)] (37) "Unsubstantiated" means a judicial finding that there is insufficient evidence
241 to conclude that abuse or neglect occurred.
242 [(34)] (38) "Unsupported" means a finding at the completion of an investigation that
243 there is insufficient evidence to conclude that abuse, neglect, or dependency occurred.
244 However, a finding of unsupported means also that the division worker did not conclude that
245 the allegation was without merit.
246 [(35)] (39) "Without merit" means a finding at the completion of an investigation by the
247 division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur, or
248 that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.
249 Section 2. Section 62A-4a-107.5 is amended to read:
250 62A-4a-107.5. Private recruitment and training of foster care parents and child
251 welfare volunteers -- Extension of immunity.
252 (1) The division may contract with one or more private, nonprofit organizations to
253 recruit and train foster care parents and child welfare volunteers on a statewide or regional

254 basis.
255 (2) An organization that contracts with the division pursuant to Subsection (1) shall
256 agree to:
257 (a) increase the number of licensed and trained foster care parents in the geographic
258 area covered by:
259 (i) developing a strategic plan;
260 (ii) assessing the needs, perceptions, and qualities of potential foster care parents;
261 (iii) assessing the needs, perceptions, and qualities of children in state custody;
262 (iv) identifying potential foster care parents through public and private resources;
263 (v) screening foster care parent applicants;
264 (vi) providing preservice, ongoing, and customized training to foster care parents;
265 (vii) developing a competency-based training curriculum with input from public and
266 private resources and approved by the division;
267 (viii) focusing training exercises on skill development; and
268 (ix) supporting foster care parents by supplying staff support, identifying common
269 issues, encouraging peer support, and connecting available resources;
270 (b) increase the number of child welfare volunteers in the geographical area covered by:
271 (i) developing a strategic plan;
272 (ii) seeking the participation of established volunteer organizations;
273 (iii) designing and offering initial orientation sessions to child welfare volunteers;
274 (iv) informing volunteers of options for service as specified by the division; and
275 (v) facilitating the placement and certification of child welfare volunteers;
276 (c) coordinate efforts, where appropriate, with the division;
277 (d) seek private contributions in furtherance of the organization's activities under this
278 Subsection (2);
279 (e) perform other related services and activities as may be required by the division; and
280 (f) establish a system for evaluating performance and obtaining feedback on the
281 activities performed pursuant to this Subsection (2).

282 (3) Notwithstanding Subsection (2), the department shall retain ultimate authority over
283 and responsibility for:
284 (a) initial and ongoing training content, material, curriculum, and techniques, and
285 certification standards used by an organization; and
286 (b) screening, investigation, licensing, certification, referral, and placement decisions
287 with respect to any person recruited or trained by an organization.
288 (4) (a) An organization under contract with the department and its directors, trustees,
289 officers, employees, and agents, whether compensated or not, may not be held civilly liable for
290 any act or omission on a matter for which the department retains ultimate authority and
291 responsibility under Subsection (3).
292 (b) Nothing in Subsection (4)(a) may be construed as altering the [child] abuse and
293 neglect reporting requirements of Section 62A-4a-403 , regardless of whether the facts that give
294 rise to such a report occur before or after a screening, investigation, licensing, or placement
295 decision of the department.
296 (5) A referring entity or a referring individual that voluntarily and without remuneration
297 assists the organization to identify and recruit foster care parents or child welfare volunteers is
298 not liable in any civil action for any act or omission of:
299 (a) the referring entity or the referring individual, which is performed in good faith and
300 in furtherance of the entity's assistance to the organization; or
301 (b) any person directly or indirectly referred to the organization by the entity as a foster
302 care parent or child welfare volunteer, if the referring individual was without actual knowledge
303 of any substantiated fact that would have disqualified the person from such a position at the
304 time the referral was made.
305 (6) As used in this section:
306 (a) "referring entity" means:
307 (i) an incorporated or unincorporated organization or association whether formally
308 incorporated or otherwise established and operating for religious, charitable, or educational
309 purposes which does not distribute any of its income or assets to its members, directors,

310 officers, or other participants;
311 (ii) any organization which is described in Section 501(c)(3) of the Internal Revenue
312 Code of 1986 and is exempt from tax under Section 501 of the Internal Revenue Code; or
313 (iii) any not-for-profit organization which is formed and conducted for public benefit
314 and operated primarily for charitable, civic, educational, religious, benevolent, welfare, or health
315 purposes; and
316 (b) "referring individual" means an individual:
317 (i) with the authority to act on behalf of a referring entity in making a referral; and
318 (ii) who may or may not be compensated by the referring entity.
319 Section 3. Section 62A-4a-113 is amended to read:
320 62A-4a-113. Division's enforcement authority -- Responsibility of attorney
321 general to represent division.
322 (1) The division shall take legal action that is necessary to enforce the provisions of this
323 chapter.
324 (2) (a) Subject to the provisions of Section 67-5-17 , the attorney general shall enforce
325 all provisions of this chapter, in addition to the requirements of Title 78, Chapter 3a, Juvenile
326 Court Act of 1996, relating to protection and custody of abused, neglected, or dependent
327 minors. The attorney general may contract with the local county attorney to enforce the
328 provisions of this chapter and Title 78, Chapter 3a, Juvenile Court Act of 1996.
329 (b) It is the responsibility of the attorney general's office to:
330 (i) advise the division regarding decisions to remove a minor from the minor's home;
331 (ii) represent the division in all court and administrative proceedings related to [child]
332 abuse, neglect, and dependency including, but not limited to, shelter hearings, dispositional
333 hearings, dispositional review hearings, periodic review hearings, and petitions for termination
334 of parental rights; and
335 (iii) be available to and advise caseworkers on an ongoing basis.
336 (c) The attorney general shall designate no less than 16 full-time attorneys to advise and
337 represent the division in abuse, neglect, and dependency proceedings, including petitions for

338 termination of parental rights. Those attorneys shall devote their full time and attention to that
339 representation and, insofar as it is practicable, shall be housed in or near various offices of the
340 division statewide.
341 (3) As of July 1, 1998, the attorney general's office shall represent the division with
342 regard to actions involving minors who have not been adjudicated as abused or neglected, but
343 who are otherwise committed to the custody of the division by the juvenile court, and who are
344 classified in the division's management information system as having been placed in custody
345 primarily on the basis of delinquent behavior or a status offense. Nothing in this section may be
346 construed to affect the responsibility of the county attorney or district attorney to represent the
347 state in those matters, in accordance with Section 78-3a-116 .
348 Section 4. Section 62A-4a-201 is amended to read:
349 62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
350 state.
351 (1) (a) Under both the United States Constitution and the constitution of this state, a
352 parent possesses a fundamental liberty interest in the care, custody, and management of the
353 parent's children. A fundamentally fair process must be provided to parents if the state moves
354 to challenge or interfere with parental rights. A governmental entity must support any actions
355 or allegations made in opposition to the rights and desires of a parent regarding the parent's
356 children by sufficient evidence to satisfy a parent's constitutional entitlement to heightened
357 protection against government interference with the parent's fundamental rights and liberty
358 interests.
359 (b) The fundamental liberty interest of a parent concerning the care, custody, and
360 management of the parent's children is recognized, protected, and does not cease to exist simply
361 because a parent may fail to be a model parent or because the parent's child is placed in the
362 temporary custody of the state. At all times, a parent retains a vital interest in preventing the
363 irretrievable destruction of family life. Prior to an adjudication of unfitness, government action
364 in relation to parents and their children may not exceed the least restrictive means or alternatives
365 available to accomplish a compelling state interest. Until the state proves parental unfitness, the

366 child and the child's parents share a vital interest in preventing erroneous termination of their
367 natural relationship and the state cannot presume that a child and the child's parents are
368 adversaries.
369 (c) It is in the best interest and welfare of a child to be raised under the care and
370 supervision of the child's natural parents. A child's need for a normal family life in a permanent
371 home, and for positive, nurturing family relationships will usually best be met by the child's
372 natural parents. Additionally, the integrity of the family unit, and the right of parents to
373 conceive and raise their children have found protection in the due process clause of the
374 Fourteenth Amendment to the United States Constitution. The right of a fit, competent parent
375 to raise the parent's child without undue government interference is a fundamental liberty
376 interest that has long been protected by the laws and Constitution of this state and of the United
377 States.
378 (d) The state recognizes that:
379