H.B. 31

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 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 definitions and related provisions in the Child and Family Services
13 chapter of the Utah Human Services Code and in the Juvenile Court Act of 1996.
14 Highlighted Provisions:
15 This bill:
16 . eliminates overlapping portions of definitions;
17 . modifies definitions;
18 . adds new definitions;
19 . simplifies and consolidates definitions;
20 . establishes consistency between definitions in the Child and Family Services
21 chapter of the Utah Human Services Code and the Juvenile Court Act of 1996;
22 . modifies portions of the Child and Family Services chapter of the Utah Human
23 Services Code and the Juvenile Court Act of 1996 to conform with the changes to,
24 and addition of, definitions in this bill; and
25 . makes technical changes.
26 Monies Appropriated in this Bill:
27 None

28 Other Special Clauses:
29 None
30 Utah Code Sections Affected:
31 AMENDS:
32 62A-4a-101, as last amended by Laws of Utah 2006, Chapters 75, and 281
33 62A-4a-107.5, as last amended by Laws of Utah 2000, Chapter 290
34 62A-4a-113, as last amended by Laws of Utah 2002, Chapter 149
35 62A-4a-201, as last amended by Laws of Utah 2006, Chapter 75
36 62A-4a-202.4, as last amended by Laws of Utah 1998, Chapter 263
37 62A-4a-202.6, as last amended by Laws of Utah 2006, Chapter 55
38 62A-4a-203, as last amended by Laws of Utah 2006, Chapter 75
39 62A-4a-301, as renumbered and amended by Laws of Utah 1994, Chapter 260
40 62A-4a-302, as renumbered and amended by Laws of Utah 1994, Chapter 260
41 62A-4a-303, as renumbered and amended by Laws of Utah 1994, Chapter 260
42 62A-4a-304, as last amended by Laws of Utah 1996, Chapter 242
43 62A-4a-305, as renumbered and amended by Laws of Utah 1994, Chapter 260
44 62A-4a-306, as renumbered and amended by Laws of Utah 1994, Chapter 260
45 62A-4a-309, as last amended by Laws of Utah 2000, Chapter 321
46 62A-4a-311, as last amended by Laws of Utah 2003, Chapter 246
47 62A-4a-401, as renumbered and amended by Laws of Utah 1994, Chapter 260
48 62A-4a-402, as last amended by Laws of Utah 2006, Chapter 281
49 62A-4a-403, as last amended by Laws of Utah 1999, Chapter 21
50 62A-4a-405, as renumbered and amended by Laws of Utah 1994, Chapter 260
51 62A-4a-406, as renumbered and amended by Laws of Utah 1994, Chapter 260
52 62A-4a-409, as last amended by Laws of Utah 2006, Chapter 75
53 62A-4a-411, as renumbered and amended by Laws of Utah 1994, Chapter 260
54 62A-4a-412, as last amended by Laws of Utah 2006, Chapters 77, and 281
55 62A-4a-414, as last amended by Laws of Utah 2007, Chapter 169
56 62A-4a-802, as last amended by Laws of Utah 2002, Chapter 246
57 62A-4a-1002, as enacted by Laws of Utah 2006, Chapter 77
58 62A-4a-1003, as last amended by Laws of Utah 2007, Chapter 152

59 62A-4a-1005, as renumbered and amended by Laws of Utah 2006, Chapter 77
60 62A-4a-1006, as renumbered and amended by Laws of Utah 2006, Chapter 77
61 62A-4a-1007, as renumbered and amended by Laws of Utah 2006, Chapter 77
62 62A-4a-1009, as renumbered and amended by Laws of Utah 2006, Chapter 77
63 62A-4a-1010, as renumbered and amended by Laws of Utah 2006, Chapter 77
64 76-7-304, as last amended by Laws of Utah 2006, Chapter 207
65 78-3a-103, as last amended by Laws of Utah 2006, Chapters 75, 97, and 281
66 78-3a-301, as last amended by Laws of Utah 2007, Chapter 111
67 78-3a-306, as last amended by Laws of Utah 2007, Chapter 169
68 78-3a-307.1, as last amended by Laws of Utah 2007, Chapter 152
69 78-3a-311, as last amended by Laws of Utah 2006, Chapters 75, and 97
70 78-3a-314, as last amended by Laws of Utah 2007, Chapter 152
71 78-3a-318, as enacted by Laws of Utah 1996, Chapter 1 and last amended by Laws of
72 Utah 1996, Chapter 318
73 78-3a-403, as last amended by Laws of Utah 1996, Chapter 318
74 78-3a-407, as last amended by Laws of Utah 2006, Chapter 281
75 78-3a-408, as last amended by Laws of Utah 2005, Chapter 95
76 78-3a-801, as last amended by Laws of Utah 2007, Chapter 81
77
78 Be it enacted by the Legislature of the state of Utah:
79 Section 1. Section 62A-4a-101 is amended to read:
80 62A-4a-101. Definitions.
81 As used in this chapter:
82 [(1) (a) "Abuse" means:]
83 [(i) actual or threatened nonaccidental physical or mental harm;]
84 [(ii) negligent treatment;]
85 [(iii) sexual exploitation; or]
86 [(iv) any sexual abuse.]
87 [(b) "Abuse" does not include:]
88 [(i) reasonable discipline or management of a child, including withholding privileges;]
89 [(ii) conduct described in Section 76-2-401 ; or]

90 [(iii) the use of reasonable and necessary physical restraint or force on a child:]
91 [(A) in self-defense;]
92 [(B) in defense of others;]
93 [(C) to protect the child; or]
94 [(D) to remove a weapon in the possession of a child for any of the reasons described
95 in Subsections (1)(b)(iii)(A) through (C).]
96 (1) "Abuse" is as defined in Section 78-3a-103 .
97 (2) "Adoption services" means:
98 (a) placing children for adoption;
99 (b) subsidizing adoptions under Section 62A-4a-105 ;
100 (c) supervising adoption placements until the adoption is finalized by the court;
101 (d) conducting adoption studies;
102 (e) preparing adoption reports upon request of the court; and
103 (f) providing postadoptive placement services, upon request of a family, for the
104 purpose of stabilizing a possible disruptive placement.
105 (3) "Board" means the Board of Child and Family Services established in accordance
106 with Sections 62A-1-105 , 62A-1-107 , and 62A-4a-102 .
107 (4) "Child" means, except as provided in Part 7, Interstate Compact on Placement of
108 Children, a person under 18 years of age.
109 (5) "Consumer" means a person who receives services offered by the division in
110 accordance with this chapter.
111 (6) "Chronic [physical] abuse" means repeated or patterned [physical] abuse.
112 (7) "Chronic neglect" means [a] repeated or patterned [failure or refusal by a parent,
113 guardian, or custodian to provide necessary care for a child's safety, morals, or well-being]
114 neglect.
115 [(8) "Chronic emotional abuse" means repeated or patterned emotional abuse.]
116 [(9)] (8) "Custody," with regard to the division, means the custody of a minor in the
117 division as of the date of disposition.
118 [(10)] (9) "Day-care services" means care of a child for a portion of the day which is
119 less than 24 hours:
120 (a) in the child's own home by a responsible person; or

121 (b) outside of the child's home in a:
122 (i) day-care center;
123 (ii) family group home; or
124 (iii) family child care home.
125 [(11)] (10) "Dependent child" or "dependency" means a child, or the condition of a
126 child, who is homeless or without proper care through no fault of the child's parent, guardian,
127 or custodian.
128 [(12)] (11) "Director" means the director of the Division of Child and Family Services.
129 [(13)] (12) "Division" means the Division of Child and Family Services.
130 [(14) (a)] (13) "Domestic violence services" means:
131 [(i)] (a) temporary shelter, treatment, and related services to [persons who are victims
132 of abuse and their dependent children; and]:
133 (i) a person who is a victim of abuse, as defined in Section 30-6-1 ; and
134 (ii) the dependent children of a person described in Subsection (13)(a)(i); and
135 [(ii)] (b) treatment services for [domestic violence perpetrators. (b) As used in this
136 Subsection (14): (i) "abuse" means the same as that term is defined in Section 30-6-1 ; and (ii)
137 "domestic violence perpetrator" means] a person who is alleged to have committed, has been
138 convicted of, or has pled guilty to, an act of domestic violence as defined in Section 77-36-1 .
139 (14) "Harm" is as defined in Section 78-3a-103 .
140 (15) "Homemaking service" means the care of individuals in their domiciles, and help
141 given to individual caretaker relatives to achieve improved household and family management
142 through the services of a trained homemaker.
143 (16) "Incest" is as defined in Section 78-3a-103 .
144 [(16)] (17) "Minor" means, except as provided in Part 7, Interstate Compact on
145 Placement of Children:
146 (a) a child; or
147 (b) a person:
148 (i) who is at least 18 years of age and younger than 21 years of age; and
149 (ii) for whom the division has been specifically ordered by the juvenile court to provide
150 services.
151 (18) "Molestation" is as defined in Section 78-3a-103 .

152 [(17)] (19) "Natural parent" means a minor's biological or adoptive parent, and
153 includes a minor's noncustodial parent.
154 [(18) (a) "Neglect" means:]
155 [(i) abandonment of a child, except as provided in Part 8, Safe Relinquishment of a
156 Newborn Child;]
157 [(ii) subjecting a child to mistreatment or abuse;]
158 [(iii) lack of proper parental care by reason of the fault or habits of the parent,
159 guardian, or custodian;]
160 [(iv) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
161 subsistence, education, or medical care, including surgery or psychiatric services when
162 required, or any other care necessary for the child's health, safety, morals, or well-being; or]
163 [(v) a child at risk of being neglected or abused because another child in the same
164 home is neglected or abused.]
165 [(b) The aspect of neglect relating to education, described in Subsection (18)(a)(iv),
166 means that, after receiving notice that a child has been frequently absent from school without
167 good cause, or that the child has failed to cooperate with school authorities in a reasonable
168 manner, a parent or guardian fails to make a good faith effort to ensure that the child receives
169 an appropriate education.]
170 [(c) A parent or guardian legitimately practicing religious beliefs and who, for that
171 reason, does not provide specified medical treatment for a child, is not guilty of neglect.]
172 [(d) (i) Notwithstanding Subsection (18)(a), a health care decision made for a child by
173 the child's parent or guardian does not constitute neglect unless the state or other party to the
174 proceeding shows, by clear and convincing evidence, that the health care decision is not
175 reasonable and informed.]
176 [(ii) Nothing in Subsection (18)(d)(i) may prohibit a parent or guardian from exercising
177 the right to obtain a second health care opinion.]
178 (20) "Neglect is as defined in Section 78-3a-103 .
179 [(19)] (21) "Protective custody," with regard to the division, means the shelter of a
180 child by the division from the time the child is removed from the child's home until the earlier
181 of:
182 (a) the shelter hearing; or

183 (b) the child's return home.
184 [(20)] (22) "Protective services" means expedited services that are provided:
185 (a) in response to evidence of neglect, abuse, or dependency of a child;
186 (b) to a cohabitant who is neglecting or abusing a child, in order to:
187 (i) help the cohabitant develop recognition of the cohabitant's duty of care and of the
188 causes of neglect or abuse; and
189 (ii) strengthen the cohabitant's ability to provide safe and acceptable care; and
190 (c) in cases where the child's welfare is endangered:
191 (i) to bring the situation to the attention of the appropriate juvenile court and law
192 enforcement agency;
193 (ii) to cause a protective order to be issued for the protection of the child, when
194 appropriate; and
195 (iii) to protect the child from the circumstances that endanger the child's welfare
196 including, when appropriate:
197 (A) removal from the child's home;
198 (B) placement in substitute care; and
199 (C) petitioning the court for termination of parental rights.
200 (23) "Severe abuse" is as defined in Section 78-3a-103 .
201 [(21)] (24) "Severe neglect" [means neglect that causes or threatens to cause serious
202 harm to a child] is as defined in Section 78-3a-103 .
203 (25) "Sexual abuse" is as defined in Section 78-3a-103 .
204 (26) "Sexual exploitation" is as defined in Section 78-3a-103 .
205 [(22)] (27) "Shelter care" means the temporary care of a minor in a nonsecure facility.
206 [(23)] (28) "State" means:
207 (a) a state of the United States;
208 (b) the District of Columbia;
209 (c) the Commonwealth of Puerto Rico;
210 (d) the Virgin Islands;
211 (e) Guam;
212 (f) the Commonwealth of the Northern Mariana Islands; or
213 (g) a territory or possession administered by the United States.

214 [(24) "Severe emotional abuse" means emotional abuse that causes or threatens to
215 cause serious harm to a child.]
216 [(25) "Severe physical abuse" means physical abuse that causes or threatens to cause
217 serious harm to a child.]
218 [(26)] (29) "State plan" means the written description of the programs for children,
219 youth, and family services administered by the division in accordance with federal law.
220 [(27)] (30) "Status offense" means a violation of the law that would not be a violation
221 but for the age of the offender.
222 (31) "Substance abuse" is as defined in Section 78-3a-103 .
223 [(28)] (32) "Substantiated" or "substantiation" means a judicial finding based on a
224 preponderance of the evidence that abuse or neglect occurred. Each allegation made or
225 identified in a given case shall be considered separately in determining whether there should be
226 a finding of substantiated.
227 [(29)] (33) "Substitute care" means:
228 (a) the placement of a minor in a family home, group care facility, or other placement
229 outside the minor's own home, either at the request of a parent or other responsible relative, or
230 upon court order, when it is determined that continuation of care in the minor's own home
231 would be contrary to the minor's welfare;
232 (b) services provided for a minor awaiting placement; and
233 (c) the licensing and supervision of a substitute care facility.
234 [(30)] (34) "Supported" means a finding by the division based on the evidence
235 available at the completion of an investigation that there is a reasonable basis to conclude that
236 abuse, neglect, or dependency occurred. Each allegation made or identified during the course
237 of the investigation shall be considered separately in determining whether there should be a
238 finding of supported.
239 [(31)] (35) "Temporary custody," with regard to the division, means the custody of a
240 child in the division from the date of the shelter hearing until disposition.
241 [(32)] (36) "Transportation services" means travel assistance given to an individual
242 with escort service, if necessary, to and from community facilities and resources as part of a
243 service plan.
244 [(33)] (37) "Unsubstantiated" means a judicial finding that there is insufficient

245 evidence to conclude that abuse or neglect occurred.
246 [(34)] (38) "Unsupported" means a finding at the completion of an investigation that
247 there is insufficient evidence to conclude that abuse, neglect, or dependency occurred.
248 However, a finding of unsupported means also that the division worker did not conclude that
249 the allegation was without merit.
250 [(35)] (39) "Without merit" means a finding at the completion of an investigation by
251 the division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur,
252 or that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.
253 Section 2. Section 62A-4a-107.5 is amended to read:
254 62A-4a-107.5. Private recruitment and training of foster care parents and child
255 welfare volunteers -- Extension of immunity.
256 (1) The division may contract with one or more private, nonprofit organizations to
257 recruit and train foster care parents and child welfare volunteers on a statewide or regional
258 basis.
259 (2) An organization that contracts with the division pursuant to Subsection (1) shall
260 agree to:
261 (a) increase the number of licensed and trained foster care parents in the geographic
262 area covered by:
263 (i) developing a strategic plan;
264 (ii) assessing the needs, perceptions, and qualities of potential foster care parents;
265 (iii) assessing the needs, perceptions, and qualities of children in state custody;
266 (iv) identifying potential foster care parents through public and private resources;
267 (v) screening foster care parent applicants;
268 (vi) providing preservice, ongoing, and customized training to foster care parents;
269 (vii) developing a competency-based training curriculum with input from public and
270 private resources and approved by the division;
271 (viii) focusing training exercises on skill development; and
272 (ix) supporting foster care parents by supplying staff support, identifying common
273 issues, encouraging peer support, and connecting available resources;
274 (b) increase the number of child welfare volunteers in the geographical area covered
275 by:

276 (i) developing a strategic plan;
277 (ii) seeking the participation of established volunteer organizations;
278 (iii) designing and offering initial orientation sessions to child welfare volunteers;
279 (iv) informing volunteers of options for service as specified by the division; and
280 (v) facilitating the placement and certification of child welfare volunteers;
281 (c) coordinate efforts, where appropriate, with the division;
282 (d) seek private contributions in furtherance of the organization's activities under this
283 Subsection (2);
284 (e) perform other related services and activities as may be required by the division; and
285 (f) establish a system for evaluating performance and obtaining feedback on the
286 activities performed pursuant to this Subsection (2).
287 (3) Notwithstanding Subsection (2), the department shall retain ultimate authority over
288 and responsibility for:
289 (a) initial and ongoing training content, material, curriculum, and techniques, and
290 certification standards used by an organization; and
291 (b) screening, investigation, licensing, certification, referral, and placement decisions
292 with respect to any person recruited or trained by an organization.
293 (4) (a) An organization under contract with the department and its directors, trustees,
294 officers, employees, and agents, whether compensated or not, may not be held civilly liable for
295 any act or omission on a matter for which the department retains ultimate authority and
296 responsibility under Subsection (3).
297 (b) Nothing in Subsection (4)(a) may be construed as altering the [child] abuse and
298 neglect reporting requirements of Section 62A-4a-403 , regardless of whether the facts that give
299 rise to such a report occur before or after a screening, investigation, licensing, or placement
300 decision of the department.
301 (5) A referring entity or a referring individual that voluntarily and without
302 remuneration assists the organization to identify and recruit foster care parents or child welfare
303 volunteers is not liable in any civil action for any act or omission of:
304 (a) the referring entity or the referring individual, which is performed in good faith and
305 in furtherance of the entity's assistance to the organization; or
306 (b) any person directly or indirectly referred to the organization by the entity as a foster

307 care parent or child welfare volunteer, if the referring individual was without actual knowledge
308 of any substantiated fact that would have disqualified the person from such a position at the
309 time the referral was made.
310 (6) As used in this section:
311 (a) "referring entity" means:
312 (i) an incorporated or unincorporated organization or association whether formally
313 incorporated or otherwise established and operating for religious, charitable, or educational
314 purposes which does not distribute any of its income or assets to its members, directors,
315 officers, or other participants;
316 (ii) any organization which is described in Section 501(c)(3) of the Internal Revenue
317 Code of 1986 and is exempt from tax under Section 501 of the Internal Revenue Code; or
318 (iii) any not-for-profit organization which is formed and conducted for public benefit
319 and operated primarily for charitable, civic, educational, religious, benevolent, welfare, or
320 health purposes; and
321 (b) "referring individual" means an individual:
322 (i) with the authority to act on behalf of a referring entity in making a referral; and
323 (ii) who may or may not be compensated by the referring entity.
324 Section 3. Section 62A-4a-113 is amended to read:
325 62A-4a-113. Division's enforcement authority -- Responsibility of attorney
326 general to represent division.
327 (1) The division shall take legal action that is necessary to enforce the provisions of
328 this chapter.
329 (2) (a) Subject to the provisions of Section 67-5-17 , the attorney general shall enforce
330 all provisions of this chapter, in addition to the requirements of Title 78, Chapter 3a, Juvenile
331 Court Act of 1996, relating to protection and custody of abused, neglected, or dependent
332 minors. The attorney general may contract with the local county attorney to enforce the
333 provisions of this chapter and Title 78, Chapter 3a, Juvenile Court Act of 1996.
334 (b) It is the responsibility of the attorney general's office to:
335 (i) advise the division regarding decisions to remove a minor from the minor's home;
336 (ii) represent the division in all court and administrative proceedings related to [child]
337 abuse, neglect, and dependency including, but not limited to, shelter hearings, dispositional

338 hearings, dispositional review hearings, periodic review hearings, and petitions for termination
339 of parental rights; and
340 (iii) be available to and advise caseworkers on an ongoing basis.
341 (c) The attorney general shall designate no less than 16 full-time attorneys to advise
342 and represent the division in abuse, neglect, and dependency proceedings, including petitions
343 for termination of parental rights. Those attorneys shall devote their full time and attention to
344 that representation and, insofar as it is practicable, shall be housed in or near various offices of
345 the division statewide.
346 (3) As of July 1, 1998, the attorney general's office shall represent the division with
347 regard to actions involving minors who have not been adjudicated as abused or neglected, but
348 who are otherwise committed to the custody of the division by the juvenile court, and who are
349 classified in the division's management information system as having been placed in custody
350 primarily on the basis of delinquent behavior or a status offense. Nothing in this section may
351 be construed to affect the responsibility of the county attorney or district attorney to represent
352 the state in those matters, in accordance with Section 78-3a-116 .
353 Section 4. Section 62A-4a-201 is amended to read:
354 62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
355 state.
356 (1) (a) Under both the United States Constitution and the constitution of this state, a
357 parent possesses a fundamental liberty interest in the care, custody, and management of the
358 parent's children. A fundamentally fair process must be provided to parents if the state moves
359 to challenge or interfere with parental rights. A governmental entity must support any actions
360 or allegations made in opposition to the rights and desires of a parent regarding the parent's
361 children by sufficient evidence to satisfy a parent's constitutional entitlement to heightened
362 protection against government interference with the parent's fundamental rights and liberty
363 interests.
364 (b) The fundamental liberty interest of a parent concerning the care, custody, and
365 management of the parent's children is recognized, protected, and does not cease to exist
366 simply because a parent may fail to be a model parent or because the parent's child is placed in
367 the temporary custody of the state. At all times, a parent retains a vital interest in preventing
368 the irretrievable destruction of family life. Prior to an adjudication of unfitness, government

369 action in relation to parents and their children may not exceed the least restrictive means or
370 alternatives available to accomplish a compelling state interest. Until the state proves parental
371 unfitness, the child and the child's parents share a vital interest in preventing erroneous
372 termination of their natural relationship and the state cannot presume that a child and the child's
373 parents are adversaries.
374 (c) It is in the best interest and welfare of a child to be raised under the care and
375 supervision of the child's natural parents. A child's need for a normal family life in a
376 permanent home, and for positive, nurturing family relationships will usually best be met by
377 the child's natural parents. Additionally, the integrity of the family unit, and the right of parents
378 to conceive and raise their children have found protection in the due process clause of the
379 Fourteenth Amendment to the United States Constitution. The right of a fit, competent parent
380