H.B. 46

1

ADOPTION AND TERMINATION OF
2 PARENTAL RIGHTS
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Sheryl L. Allen
6 Senate Sponsor: Carlene M. Walker
7
8 LONG TITLE
9 Committee Note:
10 The Health and Human Services Interim Committee recommended this bill.
11 General Description:
12 This bill amends provisions of the Utah Health Code, the Utah Criminal Code, and the
13 Judicial Code, relating to adoption and the termination of parental rights.
14 Highlighted Provisions:
15 This bill:
16 . defines terms;
17 . provides that a child-placing agency has a direct, tangible, and legitimate interest in
18 the vital records of a child that has been placed with the agency pending finalization
19 of an adoption;
20 . modifies and clarifies the definition of "adoption related expenses" that a person
21 may pay or accept without violating the crime of "sale of a child";
22 . amends the offense of "sale of a child" to make it a third degree felony to offer to
23 sell or dispose of a child, or to give, or attempt to give, money or another thing of
24 value to a person with the intent to induce the person to sell or dispose of a child;
25 . makes incarceration for a felony a factor that a court must consider in determining
26 whether a parent is unfit or has neglected a child, regardless of whether the child is
27 in the custody of the Division of Child and Family Services;

28 . modifies requirements relating to taking consents and relinquishments for adoption;
29 . clarifies which code provisions must be complied with in order for a court to waive
30 the requirement that adoptive parents and the child to be adopted appear before the
31 court prior to entry of a final decree of adoption;
32 . requires a child-placing agency and a petitioner for adoption to comply with the
33 Indian Child Welfare Act in an adoption proceeding involving an "Indian child";
34 and
35 . makes technical changes.
36 Monies Appropriated in this Bill:
37 None
38 Other Special Clauses:
39 None
40 Utah Code Sections Affected:
41 AMENDS:
42 26-2-22, as last amended by Laws of Utah 2006, Chapters 55 and 56
43 76-7-203, as last amended by Laws of Utah 2005, Chapter 137
44 78-3a-408, as last amended by Laws of Utah 2005, Chapter 95
45 78-30-1.1, as last amended by Laws of Utah 2006, Chapter 186
46 78-30-3.5, as last amended by Laws of Utah 2007, Chapter 152
47 78-30-4.18, as last amended by Laws of Utah 2007, Chapter 196
48 78-30-4.22, as renumbered and amended by Laws of Utah 1995, Chapter 168
49 78-30-7, as last amended by Laws of Utah 2006, Chapter 132
50 78-30-8, as last amended by Laws of Utah 2007, Chapter 196
51 78-30-17, as enacted by Laws of Utah 1987, Chapter 39
52 78-30-18, as last amended by Laws of Utah 1995, Chapter 20
53 ENACTS:
54 78-30-15.2, Utah Code Annotated 1953
55
56 Be it enacted by the Legislature of the state of Utah:
57 Section 1. Section 26-2-22 is amended to read:
58 26-2-22. Inspection of vital records.

59 (1) (a) The vital records shall be open to inspection, but only in compliance with the
60 provisions of this chapter, department rules, and Section 78-30-18 .
61 (b) It is unlawful for any state or local officer or employee to disclose data contained in
62 vital records contrary to this chapter or department rule.
63 (c) A custodian of vital records may permit inspection of a vital record or issue a
64 certified copy of a record or a part of a record when the custodian is satisfied that the applicant
65 has demonstrated a direct, tangible, and legitimate interest.
66 (2) A direct, tangible, and legitimate interest in a vital record is present only if:
67 (a) the request is from:
68 (i) the subject[,];
69 (ii) a member of the subject's immediate family[,];
70 (iii) the guardian of the subject[, or];
71 (iv) a designated legal representative of the subject; or
72 (v) a person, including a child-placing agency as defined in Section 78-30-1.1 , with
73 whom a child has been placed pending finalization of an adoption of the child;
74 (b) the request involves a personal or property right of the subject of the record;
75 (c) the request is for official purposes of a state, local, or federal governmental agency;
76 (d) the request is for a statistical or medical research program and prior consent has
77 been obtained from the state registrar; or
78 (e) the request is a certified copy of an order of a court of record specifying the record
79 to be examined or copied.
80 (3) For purposes of Subsection (2):
81 (a) "immediate family member" means a spouse, child, parent, sibling, grandparent, or
82 grandchild;
83 (b) a designated legal representative means an attorney, physician, funeral service
84 director, genealogist, or other agent of the subject or the subject's immediate family who has
85 been delegated the authority to access vital records;
86 (c) except as provided in Title 78, Chapter 30, Adoption, a parent, or the immediate
87 family member of a parent, who does not have legal or physical custody of or visitation or
88 parent-time rights for a child because of the termination of parental rights pursuant to Title 78,
89 Chapter 3a, Juvenile Court Act of 1996, or by virtue of consenting to or relinquishing a child

90 for adoption pursuant to Title 78, Chapter 30, Adoption, may not be considered as having a
91 direct, tangible, and legitimate interest; and
92 (d) a commercial firm or agency requesting names, addresses, or similar information
93 may not be considered as having a direct, tangible, and legitimate interest.
94 (4) Upon payment of a fee established in accordance with Section 63-38-3.2 , the
95 following records shall be available to the public:
96 (a) except as provided in Subsection 26-2-10 (4)(b), a birth record, excluding
97 confidential information collected for medical and health use, if 100 years or more have passed
98 since the date of birth;
99 (b) a death record if 50 years or more have passed since the date of death; and
100 (c) a vital record not subject to Subsection (4)(a) or (b) if 75 years or more have passed
101 since the date of the event upon which the record is based.
102 Section 2. Section 76-7-203 is amended to read:
103 76-7-203. Sale of child -- Felony -- Payment of adoption related expenses.
104 (1) For purposes of this section:
105 (a) "[adoption] Adoption related expenses" means expenses that:
106 (i) are reasonably related to the adoption of a child;
107 (ii) are incurred for a reasonable amount; and
108 (iii) may include expenses:
109 (A) of the mother or father of the child being adopted, including:
110 (I) legal expenses;
111 (II) maternity expenses;
112 (III) medical expenses;
113 (IV) hospital expenses;
114 (V) counseling expenses;
115 (VI) temporary living expenses during the pregnancy or confinement of the mother; or
116 (VII) expenses for travel between the mother's or father's home and the location where
117 the child will be born or placed for adoption; [or]
118 (B) of a directly affected person for:
119 (I) travel between the directly affected person's home and the location where the child
120 will be born or placed for adoption; or

121 (II) temporary living expenses during the pregnancy or confinement of the mother;
122 [and] or
123 (C) other than those included in Subsection (1)(a)(iii)(A) or (B), that are not made for
124 the purpose of inducing the mother, parent, or legal guardian of a child to:
125 (I) place the child for adoption;
126 (II) consent to an adoption; or
127 (III) cooperate in the completion of an adoption.
128 (b) "[directly] Directly affected person" means a person who is:
129 (i) a parent or guardian of a minor when the minor is the mother or father of the child
130 being adopted;
131 (ii) a dependant of:
132 (A) the mother or father of the child being adopted; or
133 (B) the parent or guardian described in Subsection (1)(b)(i); or
134 (iii) the spouse of the mother or father of the child being adopted.
135 (2) Except as provided in Subsection (3), a person is guilty of a third degree felony if
136 the person[,]:
137 (a) while having custody, care, control, or possession of a child, sells, or disposes of
138 the child, or attempts or offers to sell or dispose of[,] the child, for and in consideration of the
139 payment of money or [other] another thing of value[.]; or
140 (b) offers, gives, or attempts to give money or another thing of value to a person, with
141 the intent to induce or encourage a person to violate Subsection (2)(a).
142 (3) A person does not violate this section by paying or receiving payment for adoption
143 related expenses, if:
144 (a) the expenses are paid as an act of charity; and
145 (b) [if] the payment is not made for the purpose of inducing the mother, parent, or legal
146 guardian of a child to:
147 (i) place the child for adoption;
148 (ii) consent to an adoption; or
149 (iii) cooperate in the completion of an adoption.
150 Section 3. Section 78-3a-408 is amended to read:
151 78-3a-408. Evidence of grounds for termination.

152 (1) In determining whether a parent or parents have abandoned a child, it is prima facie
153 evidence of abandonment that the parent or parents:
154 (a) although having legal custody of the child, have surrendered physical custody of the
155 child, and for a period of six months following the surrender have not manifested to the child
156 or to the person having the physical custody of the child a firm intention to resume physical
157 custody or to make arrangements for the care of the child;
158 (b) have failed to communicate with the child by mail, telephone, or otherwise for six
159 months;
160 (c) failed to have shown the normal interest of a natural parent, without just cause; or
161 (d) have abandoned an infant, as described in Subsection 78-3a-313.5 (1).
162 (2) In determining whether a parent or parents are unfit or have neglected a child the
163 court shall consider, but is not limited to, the following circumstances, conduct, or conditions:
164 (a) emotional illness, mental illness, or mental deficiency of the parent that renders the
165 parent unable to care for the immediate and continuing physical or emotional needs of the child
166 for extended periods of time;
167 (b) conduct toward a child of a physically, emotionally, or sexually cruel or abusive
168 nature;
169 (c) habitual or excessive use of intoxicating liquors, controlled substances, or
170 dangerous drugs that render the parent unable to care for the child;
171 (d) repeated or continuous failure to provide the child with adequate food, clothing,
172 shelter, education, or other care necessary for the child's physical, mental, and emotional health
173 and development by a parent or parents who are capable of providing that care;
174 (e) [with regard to a child who is in the custody of the division, if] whether the parent
175 is incarcerated as a result of conviction of a felony, and the sentence is of such length that the
176 child will be deprived of a normal home for more than one year; or
177 (f) a history of violent behavior.
178 (3) A parent who, legitimately practicing the parent's religious beliefs, does not provide
179 specified medical treatment for a child is not, for that reason alone, a negligent or unfit parent.
180 (4) (a) Notwithstanding Subsection (2), a parent may not be considered neglectful or
181 unfit because of a health care decision made for a child by the child's parent unless the state or
182 other party to the proceeding shows, by clear and convincing evidence, that the health care

183 decision is not reasonable and informed.
184 (b) Nothing in Subsection (4)(a) may prohibit a parent from exercising the right to
185 obtain a second health care opinion.
186 (5) If a child has been placed in the custody of the division and the parent or parents
187 fail to comply substantially with the terms and conditions of a plan within six months after the
188 date on which the child was placed or the plan was commenced, whichever occurs later, that
189 failure to comply is evidence of failure of parental adjustment.
190 (6) The following circumstances constitute prima facie evidence of unfitness:
191 (a) sexual abuse, injury, or death of a sibling of the child, or of any child, due to known
192 or substantiated abuse or neglect by the parent or parents;
193 (b) conviction of a crime, if the facts surrounding the crime are of such a nature as to
194 indicate the unfitness of the parent to provide adequate care to the extent necessary for the
195 child's physical, mental, or emotional health and development;
196 (c) a single incident of life-threatening or gravely disabling injury to or disfigurement
197 of the child; or
198 (d) the parent has committed, aided, abetted, attempted, conspired, or solicited to
199 commit murder or manslaughter of a child or child abuse homicide.
200 Section 4. Section 78-30-1.1 is amended to read:
201 78-30-1.1. Definitions.
202 As used in this chapter:
203 (1) "Adoption service provider" means a:
204 (a) child-placing agency; or
205 (b) licensed counselor who has at least one year of experience providing professional
206 social work services to:
207 (i) adoptive parents; or
208 (ii) birth parents.
209 (2) "Child-placing agency" means an agency licensed to place children for adoption
210 under Title 62A, Chapter 4a, Part 6, Child Placing.
211 (3) "Division" means the Division of Child and Family Services, within the
212 Department of Human Services, created in Section 62A-4a-103 .
213 (4) "Extra-jurisdictional child-placing agency" means an agency licensed to place

214 children for adoption by a district, territory, or state, of the United States, other than Utah.
215 [(4)] (5) "Licensed counselor" means a person who is licensed by the state, or another
216 state, district, or territory of the United States as a:
217 (a) certified social worker;
218 (b) clinical social worker;
219 (c) psychologist;
220 (d) marriage and family therapist;
221 (e) professional counselor; or
222 (f) an equivalent licensed professional of another state, district, or territory of the
223 United States.
224 [(5)] (6) "Parent," for purposes of Section 78-30-3.3 , means any person described in
225 Subsections 78-30-4.14 (1)(b) through (f) from whom consent for adoption or relinquishment
226 for adoption is required under Section 78-30-4.14 .
227 [(6)] (7) "Unmarried biological father" means a person who:
228 (a) is the biological father of a child; and
229 (b) was not married to the biological mother of the child described in Subsection [(6)]
230 (7)(a) at the time of the child's:
231 (i) conception; or
232 (ii) birth.
233 Section 5. Section 78-30-3.5 is amended to read:
234 78-30-3.5. Preplacement and postplacement adoptive evaluations -- Exceptions.
235 (1) (a) Except as otherwise provided in this section, a child may not be placed in an
236 adoptive home until a preplacement adoptive evaluation, assessing the prospective adoptive
237 parent and the prospective adoptive home, has been conducted in accordance with the
238 requirements of this section.
239 (b) Except as provided in Subsection (8), the court may, at any time, authorize
240 temporary placement of a child in a potential adoptive home pending completion of a
241 preplacement adoptive evaluation described in this section.
242 (c) Subsection (1)(a) does not apply if a birth parent has legal custody of the child to be
243 adopted and the prospective adoptive parent is related to that child as a step-parent, sibling by
244 half or whole blood or by adoption, grandparent, aunt, uncle, or first cousin, unless the

245 evaluation is otherwise requested by the court. The prospective adoptive parent described in
246 this Subsection (1)(c) shall, however, obtain the information described in Subsections (2)(a)
247 and (b), and file that documentation with the court prior to finalization of the adoption.
248 (d) The required preplacement adoptive evaluation must be completed or updated
249 within the 12-month period immediately preceding the placement of a child with the
250 prospective adoptive parent. If the prospective adoptive parent has previously received custody
251 of a child for the purpose of adoption, the preplacement adoptive evaluation must be completed
252 or updated within the 12-month period immediately preceding the placement of a child with the
253 prospective adoptive parent and after the placement of the previous child with the prospective
254 adoptive parent.
255 (2) The preplacement adoptive evaluation shall include:
256 (a) criminal history record information regarding each prospective adoptive parent and
257 any other adult living in the prospective home, prepared by a law enforcement agency based on
258 a fingerprint criminal history check, no earlier than 18 months immediately preceding
259 placement of the child;
260 (b) a report prepared by the Department of Human Services containing all information
261 regarding reports and investigation of child abuse, neglect, and dependency, with respect to
262 each prospective adoptive parent and any other adult living in the prospective home, obtained
263 no earlier than 18 months immediately preceding placement of the child, pursuant to waivers
264 executed by those parties;
265 (c) an evaluation conducted by an expert in family relations approved by the court or a
266 certified social worker, clinical social worker, marriage and family therapist, psychologist,
267 professional counselor, or other court-determined expert in family relations, who is licensed to
268 practice under the laws of this state or under the laws of the state where the prospective
269 adoptive parent or other person living in the prospective adoptive home resides. The
270 evaluation shall be in a form approved by the Department of Human Services. Neither the
271 Department of Human Services nor any of its divisions may proscribe who qualifies as an
272 expert in family relations or who may conduct evaluations pursuant to this Subsection (2); and
273 (d) if the child to be adopted is a child who is in the custody of any public child welfare
274 agency, and is a child [with] who has a special [needs] need as defined in [Subsection ] Section
275 62A-4a-902 [(2)], the preplacement evaluation must be conducted by the Department of Human

276 Services or a [licensed] child-placing agency which has entered into a contract with the
277 department to conduct the preplacement evaluations for children with special needs. Any fee
278 assessed by the evaluating agency is the responsibility of the adopting parent or parents.
279 (3) The person or agency conducting the preplacement adoptive evaluation shall, in
280 connection with the evaluation, provide the prospective adoptive parent or parents with
281 literature approved by the Division of Child and Family Services relating to adoption, and
282 including information relating to the adoption process, developmental issues that may require
283 early intervention, and community resources that are available to the adoptive parent or parents.
284 (4) A copy of the preplacement adoptive evaluation shall be filed with the court.
285 (5) (a) Except as provided in Subsections (5)(b) and (c), a postplacement evaluation
286 shall be conducted and submitted to the court prior to the final hearing in an adoption
287 proceeding. The postplacement evaluation shall include:
288 (i) verification of the allegations of fact contained in the petition for adoption;
289 (ii) an evaluation of the progress of the child's placement in the adoptive home; and
290 (iii) a recommendation regarding whether the adoption is in the best interest of the
291 child.
292 (b) The exemptions from and requirements for evaluations, described in Subsections
293 (1)(c), (2)(c), and (3), also apply to postplacement adoptive evaluations.
294 (c) Upon the request of the petitioner, the court may waive the postplacement adoptive
295 evaluation, unless it determines that it is in the best interest of the child to require the
296 postplacement evaluation. Except where the child to be adopted and the prospective parent are
297 related as set forth in Subsection (1)(c), the court may waive the postplacement adoptive
298 evaluation for a child [with] who has a special [needs] need as defined in Section 62A-4a-902 .
299 (6) If the person or agency conducting the evaluation disapproves the adoptive
300 placement, either in the preplacement or postplacement adoptive evaluation, the court may
301 dismiss the petition. However, upon request of a prospective adoptive parent, the court shall
302 order that an additional preplacement or postplacement adoptive evaluation be conducted, and
303 hold a hearing on the suitability of the adoption, including testimony of interested parties.
304 (7) Prior to finalization of a petition for adoption the court shall review and consider
305 the information and recommendations contained in the preplacement and postplacement
306 adoptive studies required by this section.

307 (8) Notwithstanding any other provision of this section, except as otherwise permitted
308 by federal law or rule, a child who is in the legal custody of the state may not be placed with a
309 prospective foster parent or a prospective adoptive parent, unless, before the child is placed
310 with the prospective foster parent or the prospective adoptive parent:
311 (a) a fingerprint based FBI national criminal history records check is conducted on the
312 prospective foster parent or prospective adoptive parent and each adult living in the home of
313 the prospective foster parent or prospective adoptive parent;
314 (b) the Department of Human Services conducts a check of the child abuse and neglect
315 registry in each state where the prospective foster parent or prospective adoptive parent resided
316 in the five years immediately preceding the day on which the prospective foster parent or
317 prospective adoptive parent applied to be a foster parent or adoptive parent, to determine
318 whether the prospective foster parent or prospective adoptive parent is listed in the registry as
319 having a substantiated or supported finding of child abuse or neglect;
320 (c) the Department of Human Services conducts a check of the child abuse and neglect
321 registry of each state where each adult living in the home of the prospective foster parent or
322 prospective adoptive parent described in Subsection (8)(b) resided in the five years
323 immediately preceding the day on which the prospective foster parent or prospective adoptive
324 parent applied to be a foster parent or adoptive parent, to determine whether the adult is listed
325 in the registry as having a substantiated or supported finding of child abuse or neglect; and
326 (d) each person required to undergo a background check described in this Subsection
327 (8) passes the background check, pursuant to the provisions of Section 62A-2-120 .
328 Section 6. Section 78-30-4.18 is amended to read:
329 78-30-4.18. Persons who may take consents and relinquishments.
330 (1) A consent or relinquishment by a birth mother or an adoptee shall be signed before:
331 (a) a judge of any court that has jurisdiction over adoption proceedings[, or];
332 (b) subject to Subsection (6), a person appointed by [that] the judge [for the purpose of
333 taking] described in Subsection (1)(a) to take consents or relinquishments; or
334 [(b)] (c) subject to Subsection (6), a person who is authorized by a [licensed]
335 child-placing agency to take consents or relinquishments [so long as the signature is notarized
336 or witnessed by two individuals who are not members of the birth mother's immediate family],
337 if the consent or relinquishment grants legal custody of the child to a child-placing agency or

338 an extra-jurisdictional child-placing agency.
339 (2) If the consent or relinquishment of a birth mother or adoptee is taken out of state it
340 shall be signed before:
341 (a) subject to Subsection (6), a person who is authorized by a child-placing agency to
342 take consents or relinquishments, if the consent or relinquishment grants legal custody of the
343 child to a child-placing agency or an extra-jurisdictional child-placing agency;
344 (b) subject to Subsection (6), a person authorized or appointed to take consents or
345 relinquishments by a court of this state that has jurisdiction over adoption proceedings;
346 (c) a court that has jurisdiction over adoption proceedings in the state where the
347 consent or relinquishment is taken; or
348 (d) a person authorized, under the laws of the state where the consent or relinquishment
349 is taken, to take consents or relinquishments of a birth mother or adoptee.
350 (3) The consent or relinquishment of any other person or agency as required by Section
351 78-30-4.14 may be signed before a Notary Public or any person authorized to take a consent or
352 relinquishment under Subsection (1) or (2).
353 (4) A person, authorized by Subsection (1) or (2) to take consents or relinquishments,
354 shall certify to the best of his information and belief that the person executing the consent or
355 relinquishment has read and understands the consent or relinquishment and has signed it freely
356 and voluntarily.
357 (5) A person executing a consent or relinquishment is entitled to receive a copy of the
358 consent or relinquishment.
359 (6) A signature described in Subsection (1)(b), (1)(c), (2)(a), or (2)(b), shall be:
360 (a) notarized; or
361 (b) witnessed by two individuals who are not members of the birth mother's or the
362 signatory 's immediate family.
363 Section 7. Section 78-30-4.22 is amended to read:
364 78-30-4.22. Custody pending final decree.
365 (1) Except as otherwise provided by the court, once a petitioner has received the
366 adoptee into his home and a petition for adoption has been filed, the petitioner is entitled to the
367 custody and control of the adoptee and is responsible for the care, maintenance, and support of
368 the adoptee, including any necessary medical or surgical treatment, pending further order of the

369 court.
370 (2) Once a child has been placed with, relinquished to, or ordered into the custody of a
371 [licensed] child-placing agency for purposes of adoption, the agency shall have custody and
372 control of the child and is responsible for his care, maintenance, and support. The agency may
373 delegate the responsibility for care, maintenance, and support, including any necessary medical
374 or surgical treatment, to the petitioner once the petitioner has received the child into his home.
375 However, until the final decree of adoption is entered by the court, the agency has the right to
376 the custody and control of the child.
377 Section 8. Section 78-30-7 is amended to read:
378 78-30-7. District court venue -- Jurisdiction of juvenile court -- Jurisdiction over
379 nonresidents -- Time for filing.
380 (1) Adoption proceedings shall be commenced by filing a petition with the clerk of the
381 district court either:
382 (a) in the district where the person adopting resides, or if the person adopting is not a
383 resident of this state, in the district where