First Substitute H.B. 46

Senator Carlene M. Walker proposes the following substitute bill:

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 General Description:
10 This bill amends provisions of the Utah Health Code, the Utah Criminal Code, and the
11 Judicial Code, relating to adoption and the termination of parental rights.
12 Highlighted Provisions:
13 This bill:
14 . defines terms;
15 . provides that a child-placing agency has a direct, tangible, and legitimate interest in
16 the vital records of a child that has been placed with the agency pending finalization
17 of an adoption;
18 . modifies and clarifies the definition of "adoption related expenses" that a person
19 may pay or accept without committing the crime of "sale of a child";
20 . amends the offense of "sale of a child" to make it a third degree felony to offer to
21 sell or dispose of a child, or to give, or attempt to give, money or another thing of
22 value to a person with the intent to induce the person to sell or dispose of a child;
23 . makes incarceration for a felony a factor that a court must consider in determining
24 whether a parent is unfit or has neglected a child, regardless of whether the child is
25 in the custody of the Division of Child and Family Services;

26 . modifies requirements relating to taking consents and relinquishments for adoption;
27 . clarifies which code provisions must be complied with in order for a court to waive
28 the requirement that adoptive parents and the child to be adopted appear before the
29 court prior to entry of a final decree of adoption;
30 . requires a child-placing agency and a petitioner for adoption to comply with the
31 Indian Child Welfare Act in an adoption proceeding involving an "Indian child";
32 and
33 . makes technical changes.
34 Monies Appropriated in this Bill:
35 None
36 Other Special Clauses:
37 This bill coordinates with S.B. 111, Revisor's Statute, by providing technical
38 amendments.
39 Utah Code Sections Affected:
40 AMENDS:
41 26-2-22, as last amended by Laws of Utah 2006, Chapters 55 and 56
42 76-7-203, as last amended by Laws of Utah 2005, Chapter 137
43 78A-6-508, as renumbered and amended by Laws of Utah 2008, Chapter 3
44 78B-6-103, as enacted by Laws of Utah 2008, Chapter 3
45 78B-6-105, as renumbered and amended by Laws of Utah 2008, Chapter 3
46 78B-6-107, as renumbered and amended by Laws of Utah 2008, Chapter 3
47 78B-6-124, as renumbered and amended by Laws of Utah 2008, Chapter 3
48 78B-6-128, as enacted by Laws of Utah 2008, Chapter 3
49 78B-6-129, as enacted by Laws of Utah 2008, Chapter 3
50 78B-6-134, as renumbered and amended by Laws of Utah 2008, Chapter 3
51 78B-6-136, as renumbered and amended by Laws of Utah 2008, Chapter 3
52 78B-6-143, as renumbered and amended by Laws of Utah 2008, Chapter 3
53 78B-6-144, as renumbered and amended by Laws of Utah 2008, Chapter 3
54
55 Be it enacted by the Legislature of the state of Utah:
56 Section 1. Section 26-2-22 is amended to read:

57 26-2-22. Inspection of vital records.
58 (1) (a) The vital records shall be open to inspection, but only in compliance with the
59 provisions of this chapter, department rules, and Section [ 78-30-18 ] 78B-6-144 .
60 (b) It is unlawful for any state or local officer or employee to disclose data contained in
61 vital records contrary to this chapter or department rule.
62 (c) A custodian of vital records may permit inspection of a vital record or issue a
63 certified copy of a record or a part of a record when the custodian is satisfied that the applicant
64 has demonstrated a direct, tangible, and legitimate interest.
65 (2) A direct, tangible, and legitimate interest in a vital record is present only if:
66 (a) the request is from:
67 (i) the subject[,];
68 (ii) a member of the subject's immediate family[,];
69 (iii) the guardian of the subject[, or];
70 (iv) a designated legal representative of the subject; or
71 (v) a person, including a child-placing agency as defined in Section 78B-6-103 , with
72 whom a child has been placed pending finalization of an adoption of the child;
73 (b) the request involves a personal or property right of the subject of the record;
74 (c) the request is for official purposes of a state, local, or federal governmental agency;
75 (d) the request is for a statistical or medical research program and prior consent has
76 been obtained from the state registrar; or
77 (e) the request is a certified copy of an order of a court of record specifying the record
78 to be examined or copied.
79 (3) For purposes of Subsection (2):
80 (a) "immediate family member" means a spouse, child, parent, sibling, grandparent, or
81 grandchild;
82 (b) a designated legal representative means an attorney, physician, funeral service
83 director, genealogist, or other agent of the subject or the subject's immediate family who has
84 been delegated the authority to access vital records;
85 (c) except as provided in Title 78, Chapter 30, Adoption, a parent, or the immediate
86 family member of a parent, who does not have legal or physical custody of or visitation or
87 parent-time rights for a child because of the termination of parental rights pursuant to Title 78,

88 Chapter 3a, Juvenile Court Act of 1996, or by virtue of consenting to or relinquishing a child
89 for adoption pursuant to Title 78, Chapter 30, Adoption, may not be considered as having a
90 direct, tangible, and legitimate interest; and
91 (d) a commercial firm or agency requesting names, addresses, or similar information
92 may not be considered as having a direct, tangible, and legitimate interest.
93 (4) Upon payment of a fee established in accordance with Section 63-38-3.2 , the
94 following records shall be available to the public:
95 (a) except as provided in Subsection 26-2-10 (4)(b), a birth record, excluding
96 confidential information collected for medical and health use, if 100 years or more have passed
97 since the date of birth;
98 (b) a death record if 50 years or more have passed since the date of death; and
99 (c) a vital record not subject to Subsection (4)(a) or (b) if 75 years or more have passed
100 since the date of the event upon which the record is based.
101 Section 2. Section 76-7-203 is amended to read:
102 76-7-203. Sale of child -- Felony -- Payment of adoption related expenses.
103 (1) For purposes of this section:
104 (a) "[adoption] Adoption related expenses" means expenses that:
105 (i) are reasonably related to the adoption of a child;
106 (ii) are incurred for a reasonable amount; and
107 (iii) may include expenses:
108 (A) of the mother or father of the child being adopted, including:
109 (I) legal expenses;
110 (II) maternity expenses;
111 (III) medical expenses;
112 (IV) hospital expenses;
113 (V) counseling expenses;
114 (VI) temporary living expenses during the pregnancy or confinement of the mother; or
115 (VII) expenses for travel between the mother's or father's home and the location where
116 the child will be born or placed for adoption; [or]
117 (B) of a directly affected person for:
118 (I) travel between the directly affected person's home and the location where the child

119 will be born or placed for adoption; or
120 (II) temporary living expenses during the pregnancy or confinement of the mother;
121 [and] or
122 (C) other than those included in Subsection (1)(a)(iii)(A) or (B), that are not made for
123 the purpose of inducing the mother, parent, or legal guardian of a child to:
124 (I) place the child for adoption;
125 (II) consent to an adoption; or
126 (III) cooperate in the completion of an adoption.
127 (b) "[directly] Directly affected person" means a person who is:
128 (i) a parent or guardian of a minor when the minor is the mother or father of the child
129 being adopted;
130 (ii) a dependant of:
131 (A) the mother or father of the child being adopted; or
132 (B) the parent or guardian described in Subsection (1)(b)(i); or
133 (iii) the spouse of the mother or father of the child being adopted.
134 (2) Except as provided in Subsection (3), a person is guilty of a third degree felony if
135 the person[,]:
136 (a) while having custody, care, control, or possession of a child, sells, or disposes of
137 the child, or attempts or offers to sell or dispose of[,] the child, for and in consideration of the
138 payment of money or [other] another thing of value[.]; or
139 (b) offers, gives, or attempts to give money or another thing of value to a person, with
140 the intent to induce or encourage a person to violate Subsection (2)(a).
141 (3) A person does not violate this section by paying or receiving payment for adoption
142 related expenses, if:
143 (a) the expenses are paid as an act of charity; and
144 (b) [if] the payment is not made for the purpose of inducing the mother, parent, or legal
145 guardian of a child to:
146 (i) place the child for adoption;
147 (ii) consent to an adoption; or
148 (iii) cooperate in the completion of an adoption.
149 Section 3. Section 78A-6-508 is amended to read:

150 78A-6-508. Evidence of grounds for termination.
151 (1) In determining whether a parent or parents have abandoned a child, it is prima facie
152 evidence of abandonment that the parent or parents:
153 (a) although having legal custody of the child, have surrendered physical custody of the
154 child, and for a period of six months following the surrender have not manifested to the child
155 or to the person having the physical custody of the child a firm intention to resume physical
156 custody or to make arrangements for the care of the child;
157 (b) have failed to communicate with the child by mail, telephone, or otherwise for six
158 months;
159 (c) failed to have shown the normal interest of a natural parent, without just cause; or
160 (d) have abandoned an infant, as described in Subsection 78A-6-316 (1).
161 (2) In determining whether a parent or parents are unfit or have neglected a child the
162 court shall consider, but is not limited to, the following circumstances, conduct, or conditions:
163 (a) emotional illness, mental illness, or mental deficiency of the parent that renders the
164 parent unable to care for the immediate and continuing physical or emotional needs of the child
165 for extended periods of time;
166 (b) conduct toward a child of a physically, emotionally, or sexually cruel or abusive
167 nature;
168 (c) habitual or excessive use of intoxicating liquors, controlled substances, or
169 dangerous drugs that render the parent unable to care for the child;
170 (d) repeated or continuous failure to provide the child with adequate food, clothing,
171 shelter, education, or other care necessary for the child's physical, mental, and emotional health
172 and development by a parent or parents who are capable of providing that care;
173 (e) [with regard to a child who is in the custody of the division, if] whether the parent
174 is incarcerated as a result of conviction of a felony, and the sentence is of such length that the
175 child will be deprived of a normal home for more than one year; or
176 (f) a history of violent behavior.
177 (3) A parent who, legitimately practicing the parent's religious beliefs, does not provide
178 specified medical treatment for a child is not, for that reason alone, a negligent or unfit parent.
179 (4) (a) Notwithstanding Subsection (2), a parent may not be considered neglectful or
180 unfit because of a health care decision made for a child by the child's parent unless the state or

181 other party to the proceeding shows, by clear and convincing evidence, that the health care
182 decision is not reasonable and informed.
183 (b) Nothing in Subsection (4)(a) may prohibit a parent from exercising the right to
184 obtain a second health care opinion.
185 (5) If a child has been placed in the custody of the division and the parent or parents
186 fail to comply substantially with the terms and conditions of a plan within six months after the
187 date on which the child was placed or the plan was commenced, whichever occurs later, that
188 failure to comply is evidence of failure of parental adjustment.
189 (6) The following circumstances constitute prima facie evidence of unfitness:
190 (a) sexual abuse, injury, or death of a sibling of the child, or of any child, due to known
191 or substantiated abuse or neglect by the parent or parents;
192 (b) conviction of a crime, if the facts surrounding the crime are of such a nature as to
193 indicate the unfitness of the parent to provide adequate care to the extent necessary for the
194 child's physical, mental, or emotional health and development;
195 (c) a single incident of life-threatening or gravely disabling injury to or disfigurement
196 of the child; or
197 (d) the parent has committed, aided, abetted, attempted, conspired, or solicited to
198 commit murder or manslaughter of a child or child abuse homicide.
199 Section 4. Section 78B-6-103 is amended to read:
200 78B-6-103. Definitions.
201 As used in this part:
202 (1) "Adoptee" means a person who has been legally adopted.
203 (2) "Adoption" means the judicial act which creates the relationship of parent and child
204 where it did not previously exist and which permanently deprives a birth parent of parental
205 rights.
206 (3) "Adoption service provider" means a:
207 (a) child-placing agency; or
208 (b) licensed counselor who has at least one year of experience providing professional
209 social work services to:
210 (i) adoptive parents; or
211 (ii) birth parents.

212 (4) "Adult adoptee" means an adoptee who is 21 years of age or older.
213 (5) "Adult sibling" means a brother or sister of the adoptee, who is 21 years of age or
214 older and whose birth mother or father is the same as that of the adoptee.
215 (6) "Birth parent" means a biological mother, a person whose paternity of a child is
216 established, or an alleged father, who has been identified as the father of a child by the child's
217 birth mother, and who has not denied paternity.
218 (7) "Bureau" means the Bureau of Vital Statistics within the Department of Health
219 operating under Title 26, Chapter 2, Utah Vital Statistics Act.
220 (8) "Child-placing agency" means an agency licensed to place children for adoption
221 under Title 62A, Chapter 4a, Part 6, Child Placing.
222 (9) "Cohabiting" means residing with another person and being involved in a sexual
223 relationship with that person.
224 (10) "Division" means the Division of Child and Family Services, within the
225 Department of Human Services, created in Section 62A-4a-103 .
226 (11) "Extra-jurisdictional child-placing agency" means an agency licensed to place
227 children for adoption by a district, territory, or state of the United States, other than Utah.
228 [(11)] (12) "Genetic and social history" means a comprehensive report, when
229 obtainable, on an adoptee's birth parents, aunts, uncles, and grandparents, which contains the
230 following information:
231 (a) medical history;
232 (b) health status;
233 (c) cause of and age at death;
234 (d) height, weight, and eye and hair color;
235 (e) ethnic origins;
236 (f) where appropriate, levels of education and professional achievement; and
237 (g) religion, if any.
238 [(12)] (13) "Health history" means a comprehensive report of the adoptee's health
239 status at the time of placement for adoption, and medical history, including neonatal,
240 psychological, physiological, and medical care history.
241 [(13)] (14) "Identifying information" means the name and address of a birth parent or
242 adult adoptee, or other specific information which by itself or in reasonable conjunction with

243 other information may be used to identify that person.
244 [(14)] (15) "Licensed counselor" means a person who is licensed by the state, or
245 another state, district, or territory of the United States as a:
246 (a) certified social worker;
247 (b) clinical social worker;
248 (c) psychologist;
249 (d) marriage and family therapist;
250 (e) professional counselor; or
251 (f) an equivalent licensed professional of another state, district, or territory of the
252 United States.
253 [(15)] (16) "Parent," for purposes of Section 78B-6-119 , means any person described in
254 Subsections 78B-6-120 (1)(b) through (f) from whom consent for adoption or relinquishment
255 for adoption is required under Sections 78B-6-120 through 78B-6-122 .
256 [(16)] (17) "Unmarried biological father" means a person who:
257 (a) is the biological father of a child; and
258 (b) was not married to the biological mother of the child described in Subsection [(16)]
259 (17)(a) at the time of the child's:
260 (i) conception; or
261 (ii) birth.
262 Section 5. Section 78B-6-105 is amended to read:
263 78B-6-105. District court venue -- Jurisdiction of juvenile court -- Jurisdiction
264 over nonresidents -- Time for filing.
265 (1) Adoption proceedings shall be commenced by filing a petition with the clerk of the
266 district court either:
267 (a) in the district where the person adopting resides, or if the person adopting is not a
268 resident of this state, in the district where the child was born or in which the child-placing
269 agency that has custody of the child is located; or
270 (b) with the juvenile court as provided in Subsection 78A-6-103 (1).
271 (2) All orders, decrees, agreements, and notices in the proceedings shall be filed with
272 the clerk of the court where the adoption proceedings were commenced under Subsection (1).
273 (3) A petition for adoption shall be filed within 30 days of the date the adoptee is

274 placed in the home of the petitioners for the purpose of adoption, unless:
275 (a) the time for filing has been extended by the court; or
276 (b) the adoption is arranged by a [licensed] child-placing agency in which case the
277 agency may extend the filing time.
278 (4) (a) If a person whose consent for the adoption is required under Section 78B-6-120
279 or 78B-6-121 cannot be found within the state, the fact of the minor's presence within the state
280 shall confer jurisdiction on the court in proceedings under this chapter as to such absent person,
281 provided that due notice has been given in accordance with the Utah Rules of Civil Procedure.
282 (b) The notice may not include the name of:
283 (i) the person or persons seeking to adopt the adoptee; or
284 (ii) an unmarried mother without her consent.
285 (5) Service of notice as provided in Subsection (6) shall vest the court with jurisdiction
286 over the person served in the same manner and to the same extent as if the person served was
287 served personally within the state.
288 (6) In the case of service outside the state, service completed not less than five days
289 before the time set in the notice for appearance of the person served, shall be sufficient to
290 confer jurisdiction.
291 (7) Computation of periods of time not otherwise set forth in this section shall be made
292 in accordance with the Utah Rules of Civil Procedure.
293 Section 6. Section 78B-6-107 is amended to read:
294 78B-6-107. Compliance with the Interstate Compact on Placement of Children --
295 Compliance with the Indian Child Welfare Act.
296 (1) In any adoption proceeding the petition for adoption shall state whether the child
297 was born in another state and, if so, both the petition and the court's final decree of adoption
298 shall state that the requirements of Title 62A, Chapter 4a, Part 7, Interstate Compact on
299 Placement of Children, have been complied with.
300 (2) In any adoption proceeding involving an "Indian child," as defined in 25 U.S.C.
301 Sec. 1903, a child-placing agency and the petitioners shall comply with the Indian Child
302 Welfare Act, Title 25, Chapter 21, of the United States Code.
303 Section 7. Section 78B-6-124 is amended to read:
304 78B-6-124. Persons who may take consents and relinquishments.

305 (1) A consent or relinquishment by a birth mother or an adoptee shall be signed before:
306 (a) a judge of any court that has jurisdiction over adoption proceedings[, or];
307 (b) subject to Subsection (6), a person appointed by [that] the judge [for the purpose of
308 taking] described in Subsection (1)(a) to take consents or relinquishments; or
309 [(b)] (c) subject to Subsection (6), a person who is authorized by a [licensed]
310 child-placing agency to take consents or relinquishments [so long as the signature is notarized
311 or witnessed by two individuals who are not members of the birth mother's immediate family],
312 if the consent or relinquishment grants legal custody of the child to a child-placing agency or
313 an extra-jurisdictional child-placing agency.
314 (2) If the consent or relinquishment of a birth mother or adoptee is taken out of state it
315 shall be signed before:
316 (a) subject to Subsection (6), a person who is authorized by a child-placing agency to
317 take consents or relinquishments, if the consent or relinquishment grants legal custody of the
318 child to a child-placing agency or an extra-jurisdictional child-placing agency;
319 (b) subject to Subsection (6), a person authorized or appointed to take consents or
320 relinquishments by a court of this state that has jurisdiction over adoption proceedings;
321 (c) a court that has jurisdiction over adoption proceedings in the state where the
322 consent or relinquishment is taken; or
323 (d) a person authorized, under the laws of the state where the consent or relinquishment
324 is taken, to take consents or relinquishments of a birth mother or adoptee.
325 (3) The consent or relinquishment of any other person or agency as required by Section
326 78B-6-120 may be signed before a Notary Public or any person authorized to take a consent or
327 relinquishment under Subsection (1) or (2).
328 (4) A person, authorized by Subsection (1) or (2) to take consents or relinquishments,
329 shall certify to the best of his information and belief that the person executing the consent or
330 relinquishment has read and understands the consent or relinquishment and has signed it freely
331 and voluntarily.
332 (5) A person executing a consent or relinquishment is entitled to receive a copy of the
333 consent or relinquishment.
334 (6) A signature described in Subsection (1)(b), (1)(c), (2)(a), or (2)(b), shall be:
335 (a) notarized; or

336 (b) witnessed by two individuals who are not members of the birth mother's or the
337 signatory's immediate family.
338 Section 8. Section 78B-6-128 is amended to read:
339 78B-6-128. Preplacement adoptive evaluations -- Exceptions.
340 (1) (a) Except as otherwise provided in this section, a child may not be placed in an
341 adoptive home until a preplacement adoptive evaluation, assessing the prospective adoptive
342 parent and the prospective adoptive home, has been conducted in accordance with the
343 requirements of this section.
344 (b) Except as provided in Section 78B-6-131 , the court may, at any time, authorize
345 temporary placement of a child in a potential adoptive home pending completion of a
346 preplacement adoptive evaluation described in this section.
347 (c) Subsection (1)(a) does not apply if a birth parent has legal custody of the child to be
348 adopted and the prospective adoptive parent is related to that child as a step-parent, sibling by
349 half or whole blood or by adoption, grandparent, aunt, uncle, or first cousin, unless the
350 evaluation is otherwise requested by the court. The prospective adoptive parent described in
351 this Subsection (1)(c) shall, however, obtain the information described in Subsections (2)(a)
352 and (b), and file that documentation with the court prior to finalization of the adoption.
353 (d) The required preplacement adoptive evaluation must be completed or updated
354 within the 12-month period immediately preceding the placement of a child with the
355 prospective adoptive parent. If the prospective adoptive parent has previously received custody
356 of a child for the purpose of adoption, the preplacement adoptive evaluation must be completed
357 or updated within the 12-month period immediately preceding the placement of a child with the
358 prospective adoptive parent and after the placement of the previous child with the prospective
359 adoptive parent.
360 (2) The preplacement adoptive evaluation shall include:
361 (a) criminal history record information regarding each prospective adoptive parent and
362 any other adult living in the prospective home, prepared by a law enforcement agency based on
363 a fingerprint criminal history check, no earlier than 18 months immediately preceding
364 placement of the child;
365 (b) a report prepared by the Department of Human Services containing all information
366 regarding reports and investigation of child abuse, neglect, and dependency, with respect to

367 each prospective adoptive parent and any other adult living in the prospective home, obtained
368 no earlier than 18 months immediately preceding placement of the child, pursuant to waivers
369 executed by those parties;
370 (c) an evaluation conducted by an expert in family relations approved by the court or a
371 certified social worker, clinical social worker, marriage and family therapist, psychologist,
372 professional counselor, or other court-determined expert in family relations, who is licensed to
373 practice under the laws of this state or under the laws of the state where the prospective
374 adoptive parent or other person living in the prospective adoptive home resides. The
375 evaluation shall be in a form approved by the Department of Human Services. Neither the
376 Department of Human Services nor any of its divisions may proscribe who qualifies as an
377 expert in family relations or who may conduct evaluations pursuant to this Subsection (2); and
378 (d) if the child to be adopted is a child who is in the custody of any public child welfare
379 agency, and is a child [with] who has a special [needs] need as defined in [Subsection] Section
380 62A-4a-902 [(2)], the preplacement evaluation must be conducted by the Department of Human
381 Services or a [licensed] child-placing agency which has entered into a contract with the