H.B. 36 Enrolled

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 General Description:
9 This bill amends background check and child placement provisions in the Utah Human
10 Services Code and the Juvenile Court Act of 1996.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . provides that the requirement that a child in state custody may not be placed with a
15 prospective foster or adoptive parent until the Department of Human Services
16 conducts a comprehensive background check, does not prohibit the Division of Child
17 and Family Services or a court placing the child with a noncustodial parent, or with a
18 relative, pending further investigation of the appropriateness of the placement;
19 . provides exceptions to certain background check requirements if the exceptions are
20 permitted by federal law or rule;
21 . modifies background check requirements for prospective foster or adoptive
22 placements;
23 . clarifies the rulemaking authority of the Office of Licensing, within the Department
24 of Human Services;
25 . provides that priority shall be given for placing a child with a noncustodial parent,
26 relative, or friend, over placing the child in a shelter;
27 . modifies provisions relating to the placement and custody of a child who has been
28 removed from the custody of the child's parents;
29 . provides that, in order to be considered a "willing relative or friend" for purposes of

30 determining placement of a child following a shelter care hearing, the friend or relative must be
31 willing to cooperate with the child's permanency goal;
32 . describes the limited background check or investigation that must be completed
33 before a child in state custody is placed with a noncustodial parent or relative; and
34 . makes technical changes.
35 Monies Appropriated in this Bill:
36 None
37 Other Special Clauses:
38 This bill provides an immediate effective date.
39 Utah Code Sections Affected:
40 AMENDS:
41 62A-2-120, as last amended by Laws of Utah 2007, Chapter 152
42 62A-4a-202.1, as last amended by Laws of Utah 2007, Chapter 169
43 62A-4a-206, as last amended by Laws of Utah 2002, Chapter 306
44 62A-4a-209, as last amended by Laws of Utah 2007, Chapter 169
45 62A-5-103.5, as last amended by Laws of Utah 2007, Chapter 152
46 78A-6-306, as renumbered and amended by Laws of Utah 2008, Chapter 3
47 78A-6-307, as renumbered and amended by Laws of Utah 2008, Chapter 3
48 78A-6-308, as renumbered and amended by Laws of Utah 2008, Chapter 3
49 78A-6-318, as renumbered and amended by Laws of Utah 2008, Chapter 3
50 78B-6-113, as renumbered and amended by Laws of Utah 2008, Chapter 3
51 78B-6-131, as enacted by Laws of Utah 2008, Chapter 3
52 ENACTS:
53 78A-6-307.5, Utah Code Annotated 1953
54
55 Be it enacted by the Legislature of the state of Utah:
56 Section 1. Section 62A-2-120 is amended to read:
57 62A-2-120. Criminal background checks -- Direct access to children or

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

86 Criminal Investigations and Technical Services Division, if the background check of the
87 applicant is being conducted for the purpose of:
88 (i) licensing a prospective foster home; or
89 (ii) approving a prospective adoptive placement of a child in state custody.
90 (g) [In] Except as provided in Subsection (1)(h), in addition to the other requirements
91 of this section, if the background check of an applicant described in Subsection (1)(a) is being
92 conducted for the purpose of licensing a prospective foster home or approving a prospective
93 adoptive placement of a child in state custody, the office shall:
94 (i) check the child abuse and neglect registry in each state where each prospective foster
95 parent or prospective adoptive parent resided in the five years immediately preceding the day on
96 which the prospective foster parent or prospective adoptive parent applied to be a foster parent
97 or adoptive parent, to determine whether the prospective foster parent or prospective adoptive
98 parent is listed in the registry as having a substantiated or supported finding of child abuse or
99 neglect; and
100 (ii) check the child abuse and neglect registry in each state where each adult living in the
101 home of the prospective foster parent or prospective adoptive parent described in Subsection
102 (1)(g)(i) resided in the five years immediately preceding the day on which the prospective foster
103 parent or prospective adoptive parent applied to be a foster parent or adoptive parent, to
104 determine whether the adult is listed in the registry as having a substantiated or supported
105 finding of child abuse or neglect.
106 (h) The requirements under Subsections (1)(f) and (g) do not apply to the extent that:
107 (i) federal law or rule permits otherwise; or
108 (ii) the requirements would prohibit the Division of Child and Family Services or a
109 court from placing a child with:
110 (A) a noncustodial parent under Section 62A-4a-209 , 78A-6-307 , or 78A-6-307.5 ; or
111 (B) a relative, other than a noncustodial parent, under Section 62A-4a-209 , 78A-6-307 ,
112 or 78A-6-307.5 , pending completion of the background check described in Subsections (1)(f)
113 and (g).

114 [(h)] (i) The office shall make rules, in accordance with Title 63, Chapter 46a, Utah
115 Administrative Rulemaking Act, to implement the provisions of this Subsection (1) relating to
116 background checks.
117 (2) The office shall approve a person for whom identifying information is submitted
118 under Subsection (1) to have direct access to children or vulnerable adults in the licensee
119 program if:
120 (a) (i) the person is found to have no criminal history record; or
121 (ii) (A) the only convictions in the person's criminal history record are misdemeanors or
122 infractions not involving any of the offenses described in Subsection (3); and
123 (B) the date of the last conviction under Subsection (2)(a)(ii)(A) is more than five years
124 before the date of the search;
125 (b) the person is not listed in the statewide database of the Division of Aging and Adult
126 Services created by Section 62A-3-311.1 ;
127 (c) juvenile court records do not show that a court made a substantiated finding, under
128 Section [ 78-3a-320 ] 78A-6-323 , that the person committed a severe type of child abuse or
129 neglect;
130 (d) the person is not listed in the Licensing Information System of the Division of Child
131 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 ] 78A-6-323 , that the person committed a severe type of child abuse or
178 neglect;
179 (v) the person is listed in the Licensing Information System of the Division of Child and
180 Family Services created by Section 62A-4a-1006 ; or
181 (vi) the person is listed in a child abuse or neglect registry of another state as having a
182 substantiated or supported finding of a severe type of child abuse or neglect as defined in
183 Section 62A-4a-1002 .
184 (b) The comprehensive review under Subsection (4)(a) shall include an examination of:
185 (i) the date of the offense or incident;
186 (ii) the nature and seriousness of the offense or incident;
187 (iii) the circumstances under which the offense or incident occurred;
188 (iv) the age of the perpetrator when the offense or incident occurred;
189 (v) whether the offense or incident was an isolated or repeated incident;
190 (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
191 adult, including:
192 (A) actual or threatened, nonaccidental physical or mental harm;
193 (B) sexual abuse;
194 (C) sexual exploitation; and
195 (D) negligent treatment;
196 (vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric
197 treatment received, or additional academic or vocational schooling completed, by the person;

198 and
199 (viii) any other pertinent information.
200 (c) At the conclusion of the comprehensive review under Subsection (4)(a), the office
201 shall approve the person who is the subject of the review to have direct access to children or
202 vulnerable adults, unless it finds that approval will likely create a risk of harm to a child or
203 vulnerable adult.
204 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
205 office may make rules, consistent with this chapter, defining procedures for the comprehensive
206 review described in this Subsection (4).
207 (5) (a) For purposes of this Subsection (5), "directly supervised" means that the person
208 being supervised is under the uninterrupted visual and auditory surveillance of the person doing
209 the supervising.
210 (b) A licensee may not permit any person to have direct access to a child or a vulnerable
211 adult unless, subject to Subsection (5)(c), that person is:
212 (i) associated with the licensee and:
213 (A) approved by the office to have direct access to children or vulnerable adults under
214 this section; or
215 (B) (I) the office has not determined whether to approve that person to have direct
216 access to children or vulnerable adults;
217 (II) the information described in Subsection (1)(a), relating to that person, is submitted
218 to the department; and
219 (III) that person is directly supervised by a person associated with the licensee who is
220 approved by the office to have direct access to children or vulnerable adults under this section;
221 (ii) (A) not associated with the licensee; and
222 (B) directly supervised by a person associated with the licensee who is approved by the
223 office to have direct access to children or vulnerable adults under this section;
224 (iii) the parent or guardian of the child or vulnerable adult; or
225 (iv) a person approved by the parent or guardian of the child or vulnerable adult to have

226 direct access to the child or vulnerable adult.
227 (c) Notwithstanding Subsection (5)(b), a person may not have direct access to a child
228 or a vulnerable adult if that person is prohibited by court order from having that access.
229 (6) (a) Within 30 days after receiving the identifying information for a person under
230 Subsection (1), the office shall give written notice to the person and to the licensee or applicant
231 with whom the person is associated of:
232 (i) the office's decision regarding its background screening clearance and findings; and
233 (ii) a list of any convictions found in the search.
234 (b) With the notice described in Subsection (6)(a), the office shall also give to the
235 person the details of any comprehensive review conducted under Subsection (4).
236 (c) If the notice under Subsection (6)(a) states that the person is not approved to have
237 direct access to children or vulnerable adults, the notice shall further advise the persons to
238 whom the notice is given that either the person or the licensee or applicant with whom the
239 person is associated, or both, may, under Subsection 62A-2-111 (2), request a hearing in the
240 department's Office of Administrative Hearings, to challenge the office's decision.
241 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
242 office shall make rules, consistent with this chapter:
243 (i) defining procedures for the challenge of its background screening decision described
244 in this Subsection (6); and
245 (ii) expediting the process for renewal of a license under the requirements of this section
246 and other applicable sections.
247 (7) Notwithstanding Subsection (1)(a), this section does not apply to an applicant for an
248 initial license, or license renewal, to operate a substance abuse program that provides services to
249 adults only.
250 (8) (a) Notwithstanding Subsections (2) through (4), the office may not approve or
251 license a person as a prospective foster parent or a prospective adoptive parent if the person has
252 been convicted of:
253 (i) a felony involving conduct that constitutes any of the following:

254 (A) child abuse, as described in Section 76-5-109 ;
255 (B) commission of domestic violence in the presence of a child, as described in Section
256 76-5-109.1 ;
257 (C) abuse or neglect of a disabled child, as described in Section 76-5-110 ;
258 (D) endangerment of a child, as described in Section 76-5-112.5 ;
259 (E) aggravated murder, as described in Section 76-5-202 ;
260 (F) murder, as described in Section 76-5-203 ;
261 (G) manslaughter, as described in Section 76-5-205 ;
262 (H) child abuse homicide, as described in Section 76-5-208 ;
263 (I) homicide by assault, as described in Section 76-5-209 ;
264 (J) kidnapping, as described in Section 76-5-301 ;
265 (K) child kidnapping, as described in Section 76-5-301.1 ;
266 (L) aggravated kidnapping, as described in Section 76-5-302 ;
267 (M) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
268 (N) an offense described in Title 76, Chapter 5a, Sexual Exploitation of Children;
269 (O) aggravated arson, as described in Section 76-6-103 ;
270 (P) aggravated burglary, as described in Section 76-6-203 ;
271 (Q) aggravated robbery, as described in Section 76-6-302 ; or
272 (R) domestic violence, as described in Section 77-36-1 ; or
273 (ii) an offense committed outside the state that, if committed in the state, would
274 constitute a violation of an offense described in Subsection (8)(a)(i).
275 (b) Notwithstanding Subsections (2) through (4), the office may not approve or license
276 a person as a prospective foster parent or a prospective adoptive parent if, within the five years
277 immediately preceding the day on which the person would otherwise be approved or licensed,
278 the person has been convicted of a felony involving conduct that constitutes any of the
279 following:
280 (i) aggravated assault, as described in Section 76-5-103 ;
281 (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5 ;

282 (iii) mayhem, as described in Section 76-5-105 ;
283 (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
284 (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
285 (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances 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 ] 78A-6-106 (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 services
301 available that, if provided to a parent or guardian of the child, would eliminate the need to
302 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 based

310 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 Family
316 Services shall give priority to a placement with a noncustodial parent, relative, or friend, in
317 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)]
337 78A-6-307 (1)(b), who obtained custody or asserted an interest in the child within the preference

338 period described in Subsection [ 78-3a-307 (8)] 78A-6-307 (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 63,
343 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 child.
349 (c) If the division determines that there is a reasonable basis to believe that the child is
350 in danger or that there is a substantial threat of danger to the health or welfare of the child, it
351 shall place the child in emergency foster care during the pendency of the procedures described
352 in this subsection, instead of making another foster care placement.
353 (3) If the division removes a child from a foster home based upon the child's statement
354 alone, the division shall initiate and expedite the processes described in Subsection (2). The
355 division may take no formal action with regard to that foster parent's license until after those
356 processes, in addition to any other procedure or hearing required by law, have been completed.
357 (4) When a complaint is made to the division by a foster child against a foster parent,
358 the division shall, within 30 business days, provide the foster parent with information regarding
359 the specific nature of the complaint, the time and place of the alleged incident, and who was
360 alleged to have been involved.
361 (5) Whenever the division places a child in a foster home, it shall provide the foster
362 parents with:
363 (a) notification of the requirements of this section;
364 (b) a written description of the procedures enacted by the division pursuant to
365 Subsection (2) and how to access those processes; and

366 (c) written notification of the foster parents' ability to petition the juvenile court directly
367 for review of a decision to remove a foster child who has been in their custody for 12 months or
368 longer, in accordance with the limitations and requirements of Section [ 78-3a-315 ] 78A-6-318 .
369 (6) The requirements of this section do not apply to the removal of a child based on a
370 foster parent's request for that removal.
371 Section 4. Section 62A-4a-209 is amended to read:
372