First Substitute H.B. 36

Senator Margaret Dayton proposes the following substitute bill:

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
17 Child and Family Services or a court placing the child with a noncustodial parent, or
18 with a relative, pending further investigation of the appropriateness of the
19 placement;
20 . provides exceptions to certain background check requirements if the exceptions are
21 permitted by federal law or rule;
22 . modifies background check requirements for prospective foster or adoptive
23 placements;
24 . clarifies the rulemaking authority of the Office of Licensing, within the Department
25 of Human Services;

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

57 Section 1. Section 62A-2-120 is amended to read:
58 62A-2-120. Criminal background checks -- Direct access to children or
59 vulnerable adults.
60 (1) (a) Except as provided in Subsection (7), an applicant for an initial license or a
61 license renewal under this chapter shall submit to the office the names and other identifying
62 information, which may include fingerprints, of all persons associated with the licensee, as
63 defined in Section 62A-2-101 , with direct access to children or vulnerable adults.
64 (b) The Criminal Investigations and Technical Services Division of the Department of
65 Public Safety, or the office as authorized under Section 53-10-108 , shall process the
66 information described in Subsection (1)(a) to determine whether the individual has been
67 convicted of any crime.
68 (c) Except as provided in Subsection (1)(d), if an individual has not continuously lived
69 in Utah for the five years immediately preceding the day on which the information referred to
70 in Subsection (1)(a) is submitted to the office, the individual shall submit fingerprints for a FBI
71 national criminal history record check. The fingerprints shall be submitted to the FBI through
72 the Criminal Investigations and Technical Services Division.
73 (d) An individual is not required to comply with Subsection (1)(c) if:
74 (i) the individual continuously lived in Utah for the five years immediately preceding
75 the day on which the information described in Subsection (1)(a) is submitted to the office,
76 except for time spent outside of the United States and its territories; and
77 (ii) the background check of the individual is being conducted for a purpose other than
78 a purpose described in Subsection (1)(f).
79 (e) If an applicant described in Subsection (1)(a) spent time outside of the United
80 States and its territories during the five years immediately preceding the day on which the
81 information described in Subsection (1)(a) is submitted to the office, the office shall require the
82 applicant to submit documentation establishing whether the applicant was convicted of a crime
83 during the time that the applicant spent outside of the United States and its territories.
84 (f) Notwithstanding [any other provision of this Subsection (1)] Subsections (1)(a)
85 through (e), and except as provided in Subsection (1)(h), an applicant described in Subsection
86 (1)(a) shall submit fingerprints for an FBI national criminal history records check, through the
87 Criminal Investigations and Technical Services Division, if the background check of the

88 applicant is being conducted for the purpose of:
89 (i) licensing a prospective foster home; or
90 (ii) approving a prospective adoptive placement of a child in state custody.
91 (g) [In] Except as provided in Subsection (1)(h), in addition to the other requirements
92 of this section, if the background check of an applicant described in Subsection (1)(a) is being
93 conducted for the purpose of licensing a prospective foster home or approving a prospective
94 adoptive placement of a child in state custody, the office shall:
95 (i) check the child abuse and neglect registry in each state where each prospective
96 foster parent or prospective adoptive parent resided in the five years immediately preceding the
97 day on which the prospective foster parent or prospective adoptive parent applied to be a foster
98 parent or adoptive parent, to determine whether the prospective foster parent or prospective
99 adoptive parent is listed in the registry as having a substantiated or supported finding of child
100 abuse or neglect; and
101 (ii) check the child abuse and neglect registry in each state where each adult living in
102 the home of the prospective foster parent or prospective adoptive parent described in
103 Subsection (1)(g)(i) resided in the five years immediately preceding the day on which the
104 prospective foster parent or prospective adoptive parent applied to be a foster parent or
105 adoptive parent, to determine whether the adult is listed in the registry as having a substantiated
106 or supported finding of child abuse or neglect.
107 (h) The requirements under Subsections (1)(f) and (g) do not apply to the extent that:
108 (i) federal law or rule permits otherwise; or
109 (ii) the requirements would prohibit the Division of Child and Family Services or a
110 court from placing a child with:
111 (A) a noncustodial parent under Section 62A-4a-209 , 78A-6-307 , or 78A-6-307.5 ; or
112 (B) a relative, other than a noncustodial parent, under Section 62A-4a-209 , 78A-6-307 ,
113 or 78A-6-307.5 , pending completion of the background check described in Subsections (1)(f)
114 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 ] 78A-6-323 , that the person committed a severe type of child abuse or
130 neglect;
131 (d) the person is not listed in the Licensing Information System of the Division of
132 Child and Family Services created by Section 62A-4a-1006 ;
133 (e) the person has not pled guilty or no contest to a pending charge for any:
134 (i) felony;
135 (ii) misdemeanor listed in Subsection (3); or
136 (iii) infraction listed in Subsection (3); and
137 (f) for a person described in Subsection (1)(g), the registry check described in
138 Subsection (1)(g) does not indicate that the person is listed in a child abuse and neglect registry
139 of another state as having a substantiated or supported finding of a severe type of child abuse or
140 neglect as defined in Section 62A-4a-1002 .
141 (3) Except as provided in Subsection (8), unless at least ten years have passed since the
142 date of conviction, the office may not approve a person to have direct access to children or
143 vulnerable adults in the licensee's human services program if that person has been convicted of
144 an offense, whether a felony, misdemeanor, or infraction, that is:
145 (a) identified as a sexual offense, domestic violence, lewdness, assault, or battery;
146 (b) a violation of any pornography law, including sexual exploitation of a minor;
147 (c) prostitution;
148 (d) included in:
149 (i) Title 76, Chapter 5, Offenses Against the Person;

150 (ii) Title 76, Chapter 5a, Sexual Exploitation of Children; or
151 (iii) Title 76, Chapter 7, Offenses Against the Family;
152 (e) a violation of Section 76-6-103 , aggravated arson;
153 (f) a violation of Section 76-6-203 , aggravated burglary;
154 (g) a violation of Section 76-6-302 , aggravated robbery; or
155 (h) a conviction for an offense committed outside of the state that, if committed in the
156 state, would constitute a violation of an offense described in Subsections (3)(d) through (g).
157 (4) (a) Except as provided in Subsection (8), if a person for whom identifying
158 information is submitted under Subsection (1) is not approved by the office under Subsection
159 (2) or (3) to have direct access to children or vulnerable adults in the licensee program, the
160 office shall conduct a comprehensive review of criminal and court records and related
161 circumstances if the reason the approval is not granted is due solely to one or more of the
162 following:
163 (i) a conviction for:
164 (A) any felony not listed in Subsection (3);
165 (B) any misdemeanor or infraction, not listed in Subsection (3), within five years of the
166 date of the search;
167 (C) a protective order or ex parte protective order violation under Section 76-5-108 or
168 a similar statute in another state; or
169 (D) any felony, misdemeanor, or infraction listed in Subsection (3) if at least ten years
170 have passed since the date of conviction;
171 (ii) a plea of guilty or no contest to a pending:
172 (A) felony;
173 (B) misdemeanor listed in Subsection (3); or
174 (C) infraction listed in Subsection (3);
175 (iii) the person is listed in the statewide database of the Division of Aging and Adult
176 Services created by Section 62A-3-311.1 ;
177 (iv) juvenile court records show that a court made a substantiated finding, under
178 Section [ 78-3a-320 ] 78A-6-323 , that the person committed a severe type of child abuse or
179 neglect;
180 (v) the person is listed in the Licensing Information System of the Division of Child

181 and Family Services created by Section 62A-4a-1006 ; or
182 (vi) the person is listed in a child abuse or neglect registry of another state as having a
183 substantiated or supported finding of a severe type of child abuse or neglect as defined in
184 Section 62A-4a-1002 .
185 (b) The comprehensive review under Subsection (4)(a) shall include an examination of:
186 (i) the date of the offense or incident;
187 (ii) the nature and seriousness of the offense or incident;
188 (iii) the circumstances under which the offense or incident occurred;
189 (iv) the age of the perpetrator when the offense or incident occurred;
190 (v) whether the offense or incident was an isolated or repeated incident;
191 (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
192 adult, including:
193 (A) actual or threatened, nonaccidental physical or mental harm;
194 (B) sexual abuse;
195 (C) sexual exploitation; and
196 (D) negligent treatment;
197 (vii) any evidence provided by the person of rehabilitation, counseling, or psychiatric
198 treatment received, or additional academic or vocational schooling completed, by the person;
199 and
200 (viii) any other pertinent information.
201 (c) At the conclusion of the comprehensive review under Subsection (4)(a), the office
202 shall approve the person who is the subject of the review to have direct access to children or
203 vulnerable adults, unless it finds that approval will likely create a risk of harm to a child or
204 vulnerable adult.
205 (d) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
206 office may make rules, consistent with this chapter, defining procedures for the comprehensive
207 review described in this Subsection (4).
208 (5) (a) For purposes of this Subsection (5), "directly supervised" means that the person
209 being supervised is under the uninterrupted visual and auditory surveillance of the person doing
210 the supervising.
211 (b) A licensee may not permit any person to have direct access to a child or a

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

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

274 (ii) an offense committed outside the state that, if committed in the state, would
275 constitute a violation of an offense described in Subsection (8)(a)(i).
276 (b) Notwithstanding Subsections (2) through (4), the office may not approve or license
277 a person as a prospective foster parent or a prospective adoptive parent if, within the five years
278 immediately preceding the day on which the person would otherwise be approved or licensed,
279 the person has been convicted of a felony involving conduct that constitutes any of the
280 following:
281 (i) aggravated assault, as described in Section 76-5-103 ;
282 (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5 ;
283 (iii) mayhem, as described in Section 76-5-105 ;
284 (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
285 (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
286 (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
287 Act;
288 (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
289 Precursor Act; or
290 (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
291 Section 2. Section 62A-4a-202.1 is amended to read:
292 62A-4a-202.1. Entering home of a child -- Taking a child into protective custody
293 -- Caseworker accompanied by peace officer -- Preventive services -- Shelter facility or
294 emergency placement.
295 (1) A peace officer or child welfare worker may not enter the home of a child who is
296 not under the jurisdiction of the court, remove a child from the child's home or school, or take a
297 child into protective custody unless authorized under Subsection [ 78-3a-106 ] 78A-6-106 (2).
298 (2) A child welfare worker within the division may take action under Subsection (1)
299 accompanied by a peace officer, or without a peace officer when a peace officer is not
300 reasonably available.
301 (3) (a) If possible, consistent with the child's safety and welfare, before taking a child
302 into protective custody, the child welfare worker shall also determine whether there are
303 services available that, if provided to a parent or guardian of the child, would eliminate the
304 need to remove the child from the custody of the child's parent or guardian.

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

336 (i) returning the child to the child's natural parent or legal guardian;
337 (ii) immediately placing the child in an approved adoptive home;
338 (iii) placing the child with a relative, as defined in Subsection [ 78-3a-307 (5)(d)]
339 78A-6-307 (1)(b), who obtained custody or asserted an interest in the child within the
340 preference period described in Subsection [ 78-3a-307 (8)] 78A-6-307 (18)(a); or
341 (iv) placing an Indian child in accordance with preplacement preferences and other
342 requirements described in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915.
343 (2) (a) The division shall maintain and utilize due process procedures for removal of a
344 foster child from a foster home, in accordance with the procedures and requirements of Title
345 63, Chapter 46b, Administrative Procedures Act.
346 (b) Those procedures shall include requirements for:
347 (i) personal communication with and explanation to foster parents prior to removal of
348 the child; and
349 (ii) an opportunity for foster parents to present their information and concerns to the
350 division and to request a review by a third party neutral fact finder prior to removal of the
351 child.
352 (c) If the division determines that there is a reasonable basis to believe that the child is
353 in danger or that there is a substantial threat of danger to the health or welfare of the child, it
354 shall place the child in emergency foster care during the pendency of the procedures described
355 in this subsection, instead of making another foster care placement.
356 (3) If the division removes a child from a foster home based upon the child's statement
357 alone, the division shall initiate and expedite the processes described in Subsection (2). The
358 division may take no formal action with regard to that foster parent's license until after those
359 processes, in addition to any other procedure or hearing required by law, have been completed.
360 (4) When a complaint is made to the division by a foster child against a foster parent,
361 the division shall, within 30 business days, provide the foster parent with information regarding
362 the specific nature of the complaint, the time and place of the alleged incident, and who was
363 alleged to have been involved.
364 (5) Whenever the division places a child in a foster home, it shall provide the foster
365 parents with:
366 (a) notification of the requirements of this section;

367 (b) a written description of the procedures enacted by the division pursuant to
368 Subsection (2) and how to access those processes; and
369 (c) written notification of the foster parents' ability to petition the juvenile court
370 directly for review of a decision to remove a foster child who has been in their custody for 12
371 months or longer, in accordance with the limitations and requirements of Section [ 78-3a-315 ]
372 78A-6-318 .