First Substitute S.B. 173
Senate Committee Amendments 2-26-2014 lp/lak
This document includes Senate Committee Amendments incorporated into the bill on Wed, Feb 26, 2014 at 2:02 PM by lpoole. --> Senator Todd Weiler proposes the following substitute bill:
This document includes Senate Committee Amendments incorporated into the bill on Wed, Feb 26, 2014 at 2:02 PM by lpoole. -->
1
2
3
4
5
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions of the Juvenile Court Act.
10 Highlighted Provisions:
11 This bill:
12 . expands the definition of abuse to include a child's natural parent intentionally,
13 knowingly, or recklessly causing the death of another parent of the child; being
14 identified by a law enforcement S. [
14a for
15 intentionally, knowingly, or recklessly causing the death of another parent of the
16 child; or being prosecuted for or convicted of intentionally, knowingly, or recklessly
17 causing the death of another parent of the child;
18 . adds similar provisions for a court to order a child's removal from the child's home;
19 continued protective custody of the Division of Child and Family Services (the
20 division) at a shelter hearing; denial of reunification services; and continued
21 protective custody of the division at a permanency hearing; and
22 . makes technical changes.
23 Money Appropriated in this Bill:
24 None
25 Other Special Clauses:
Senate Committee Amendments 2-26-2014 lp/lak
26
None26
27 Utah Code Sections Affected:
28 AMENDS:
29 78A-6-105, as last amended by Laws of Utah 2012, Chapters 49, 303, and 316
30 78A-6-302, as last amended by Laws of Utah 2012, Chapter 293
31 78A-6-306, as last amended by Laws of Utah 2012, Chapter 293
32 78A-6-312, as last amended by Laws of Utah 2013, Chapters 171 and 416
33 78A-6-314, as last amended by Laws of Utah 2010, Chapter 322
34
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 78A-6-105 is amended to read:
37 78A-6-105. Definitions.
38 As used in this chapter:
39 (1) (a) "Abuse" means:
40 (i) nonaccidental harm of a child;
41 (ii) threatened harm of a child;
42 (iii) sexual exploitation; or
43 (iv) sexual abuse.
44 (v) that a child's natural parent:
45 (A) intentionally, knowingly, or recklessly causes the death of another parent of the
46 child;
47 (B) is identified by a law enforcement S. [
47a investigation
48 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
49 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
50 recklessly causing the death of another parent of the child.
51 (b) "Abuse" does not include:
52 (i) reasonable discipline or management of a child, including withholding privileges;
53 (ii) conduct described in Section 76-2-401 ; or
54 (iii) the use of reasonable and necessary physical restraint or force on a child:
55 (A) in self-defense;
56 (B) in defense of others;
57
58 (D) to remove a weapon in the possession of a child for any of the reasons described in
59 Subsections (1)(b)(iii)(A) through (C).
60 (2) "Abused child" means a child who has been subjected to abuse.
61 (3) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
62 alleged in the petition have been proved. A finding of not competent to proceed pursuant to
63 Section 78A-6-1302 is not an adjudication.
64 (4) "Adult" means a person 18 years of age or over, except that a person 18 years or
65 over under the continuing jurisdiction of the juvenile court pursuant to Section 78A-6-120 shall
66 be referred to as a minor.
67 (5) "Board" means the Board of Juvenile Court Judges.
68 (6) "Child" means a person under 18 years of age.
69 (7) "Child placement agency" means:
70 (a) a private agency licensed to receive a child for placement or adoption under this
71 code; or
72 (b) a private agency that receives a child for placement or adoption in another state,
73 which agency is licensed or approved where such license or approval is required by law.
74 (8) "Clandestine laboratory operation" is as defined in Section 58-37d-3 .
75 (9) "Commit" means, unless specified otherwise:
76 (a) with respect to a child, to transfer legal custody; and
77 (b) with respect to a minor who is at least 18 years of age, to transfer custody.
78 (10) "Court" means the juvenile court.
79 (11) "Dependent child" includes a child who is homeless or without proper care
80 through no fault of the child's parent, guardian, or custodian.
81 (12) "Deprivation of custody" means transfer of legal custody by the court from a
82 parent or the parents or a previous legal custodian to another person, agency, or institution.
83 (13) "Detention" means home detention and secure detention as defined in Section
84 62A-7-101 for the temporary care of a minor who requires secure custody in a physically
85 restricting facility:
86 (a) pending court disposition or transfer to another jurisdiction; or
87 (b) while under the continuing jurisdiction of the court.
88
89 (15) "Formal referral" means a written report from a peace officer or other person
90 informing the court that a minor is or appears to be within the court's jurisdiction and that a
91 petition may be filed.
92 (16) "Group rehabilitation therapy" means psychological and social counseling of one
93 or more persons in the group, depending upon the recommendation of the therapist.
94 (17) "Guardianship of the person" includes the authority to consent to:
95 (a) marriage;
96 (b) enlistment in the armed forces;
97 (c) major medical, surgical, or psychiatric treatment; or
98 (d) legal custody, if legal custody is not vested in another person, agency, or institution.
99 (18) "Habitual truant" is as defined in Section 53A-11-101 .
100 (19) "Harm" means:
101 (a) physical, emotional, or developmental injury or damage;
102 (b) sexual abuse; or
103 (c) sexual exploitation.
104 (20) (a) "Incest" means engaging in sexual intercourse with a person whom the
105 perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle, aunt,
106 nephew, niece, or first cousin.
107 (b) The relationships described in Subsection (20)(a) include:
108 (i) blood relationships of the whole or half blood, without regard to legitimacy;
109 (ii) relationships of parent and child by adoption; and
110 (iii) relationships of stepparent and stepchild while the marriage creating the
111 relationship of a stepparent and stepchild exists.
112 (21) "Intellectual disability" means:
113 (a) significantly subaverage intellectual functioning, an IQ of approximately 70 or
114 below on an individually administered IQ test, for infants, a clinical judgment of significantly
115 subaverage intellectual functioning;
116 (b) concurrent deficits or impairments in present adaptive functioning, the person's
117 effectiveness in meeting the standards expected for his or her age by the person's cultural
118 group, in at least two of the following areas: communication, self-care, home living,
119
120 skills, work, leisure, health, and safety; and
121 (c) the onset is before the person reaches the age of 18 years.
122 (22) "Legal custody" means a relationship embodying the following rights and duties:
123 (a) the right to physical custody of the minor;
124 (b) the right and duty to protect, train, and discipline the minor;
125 (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary
126 medical care;
127 (d) the right to determine where and with whom the minor shall live; and
128 (e) the right, in an emergency, to authorize surgery or other extraordinary care.
129 (23) "Mental disorder" means a serious emotional and mental disturbance that severely
130 limits a minor's development and welfare over a significant period of time.
131 (24) "Minor" means:
132 (a) a child; or
133 (b) a person who is:
134 (i) at least 18 years of age and younger than 21 years of age; and
135 (ii) under the jurisdiction of the juvenile court.
136 (25) "Molestation" means that a person, with the intent to arouse or gratify the sexual
137 desire of any person:
138 (a) touches the anus or any part of the genitals of a child;
139 (b) takes indecent liberties with a child; or
140 (c) causes a child to take indecent liberties with the perpetrator or another.
141 (26) "Natural parent" means a minor's biological or adoptive parent, and includes the
142 minor's noncustodial parent.
143 (27) (a) "Neglect" means action or inaction causing:
144 (i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
145 Relinquishment of a Newborn Child;
146 (ii) lack of proper parental care of a child by reason of the fault or habits of the parent,
147 guardian, or custodian;
148 (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
149 subsistence, education, or medical care, or any other care necessary for the child's health,
150
151 (iv) a child to be at risk of being neglected or abused because another child in the same
152 home is neglected or abused.
153 (b) The aspect of neglect relating to education, described in Subsection (27)(a)(iii),
154 means that, after receiving a notice of compulsory education violation under Section
155 53A-11-101.5 , or notice that a parent or guardian has failed to cooperate with school
156 authorities in a reasonable manner as required under Subsection 53A-11-101.7 (5)(a), the parent
157 or guardian fails to make a good faith effort to ensure that the child receives an appropriate
158 education.
159 (c) A parent or guardian legitimately practicing religious beliefs and who, for that
160 reason, does not provide specified medical treatment for a child, is not guilty of neglect.
161 (d) (i) Notwithstanding Subsection (27)(a), a health care decision made for a child by
162 the child's parent or guardian does not constitute neglect unless the state or other party to the
163 proceeding shows, by clear and convincing evidence, that the health care decision is not
164 reasonable and informed.
165 (ii) Nothing in Subsection (27)(d)(i) may prohibit a parent or guardian from exercising
166 the right to obtain a second health care opinion.
167 (28) "Neglected child" means a child who has been subjected to neglect.
168 (29) "Nonjudicial adjustment" means closure of the case by the assigned probation
169 officer without judicial determination upon the consent in writing of:
170 (a) the assigned probation officer; and
171 (b) (i) the minor; or
172 (ii) the minor and the minor's parent, legal guardian, or custodian.
173 (30) "Not competent to proceed" means that a minor, due to a mental disorder,
174 intellectual disability, or related condition as defined, lacks the ability to:
175 (a) understand the nature of the proceedings against them or of the potential disposition
176 for the offense charged; or
177 (b) consult with counsel and participate in the proceedings against them with a
178 reasonable degree of rational understanding.
179 (31) "Physical abuse" means abuse that results in physical injury or damage to a child.
180 (32) "Probation" means a legal status created by court order following an adjudication
181
182 permitted to remain in the minor's home under prescribed conditions and under supervision by
183 the probation department or other agency designated by the court, subject to return to the court
184 for violation of any of the conditions prescribed.
185 (33) "Protective supervision" means a legal status created by court order following an
186 adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
187 remain in the minor's home, and supervision and assistance to correct the abuse, neglect, or
188 dependency is provided by the probation department or other agency designated by the court.
189 (34) "Related condition" means a condition closely related to intellectual disability in
190 accordance with 42 C.F.R. Part 435.1010 and further defined in Rule R539-1-3, Utah
191 Administrative Code.
192 (35) (a) "Residual parental rights and duties" means those rights and duties remaining
193 with the parent after legal custody or guardianship, or both, have been vested in another person
194 or agency, including:
195 (i) the responsibility for support;
196 (ii) the right to consent to adoption;
197 (iii) the right to determine the child's religious affiliation; and
198 (iv) the right to reasonable parent-time unless restricted by the court.
199 (b) If no guardian has been appointed, "residual parental rights and duties" also include
200 the right to consent to:
201 (i) marriage;
202 (ii) enlistment; and
203 (iii) major medical, surgical, or psychiatric treatment.
204 (36) "Secure facility" means any facility operated by or under contract with the
205 Division of Juvenile Justice Services, that provides 24-hour supervision and confinement for
206 youth offenders committed to the division for custody and rehabilitation.
207 (37) "Severe abuse" means abuse that causes or threatens to cause serious harm to a
208 child.
209 (38) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
210 child.
211 (39) "Sexual abuse" means:
212
213 directed towards a child; or
214 (b) engaging in any conduct with a child that would constitute an offense under any of
215 the following, regardless of whether the person who engages in the conduct is actually charged
216 with, or convicted of, the offense:
217 (i) Title 76, Chapter 5, Part 4, Sexual Offenses;
218 (ii) child bigamy, Section 76-7-101.5 ;
219 (iii) incest, Section 76-7-102 ;
220 (iv) lewdness, Section 76-9-702 ;
221 (v) sexual battery, Section 76-9-702.1 ;
222 (vi) lewdness involving a child, Section 76-9-702.5 ; or
223 (vii) voyeurism, Section 76-9-702.7 .
224 (40) "Sexual exploitation" means knowingly:
225 (a) employing, using, persuading, inducing, enticing, or coercing any child to:
226 (i) pose in the nude for the purpose of sexual arousal of any person; or
227 (ii) engage in any sexual or simulated sexual conduct for the purpose of photographing,
228 filming, recording, or displaying in any way the sexual or simulated sexual conduct;
229 (b) displaying, distributing, possessing for the purpose of distribution, or selling
230 material depicting a child:
231 (i) in the nude, for the purpose of sexual arousal of any person; or
232 (ii) engaging in sexual or simulated sexual conduct; or
233 (c) engaging in any conduct that would constitute an offense under Section 76-5b-201 ,
234 Sexual Exploitation of a Minor, regardless of whether the person who engages in the conduct is
235 actually charged with, or convicted of, the offense.
236 (41) "Shelter" means the temporary care of a child in a physically unrestricted facility
237 pending court disposition or transfer to another jurisdiction.
238 (42) "State supervision" means a disposition that provides a more intensive level of
239 intervention than standard probation but is less intensive or restrictive than a community
240 placement with the Division of Juvenile Justice Services.
241 (43) "Substance abuse" means the misuse or excessive use of alcohol or other drugs or
242 substances.
243
244 (45) "Supported" is as defined in Section 62A-4a-101 .
245 (46) "Termination of parental rights" means the permanent elimination of all parental
246 rights and duties, including residual parental rights and duties, by court order.
247 (47) "Therapist" means:
248 (a) a person employed by a state division or agency for the purpose of conducting
249 psychological treatment and counseling of a minor in its custody; or
250 (b) any other person licensed or approved by the state for the purpose of conducting
251 psychological treatment and counseling.
252 (48) "Unsubstantiated" is as defined in Section 62A-4a-101 .
253 (49) "Without merit" is as defined in Section 62A-4a-101 .
254 Section 2. Section 78A-6-302 is amended to read:
255 78A-6-302. Court-ordered protective custody of a child following petition filing --
256 Grounds.
257 (1) After a petition has been filed under Section 78A-6-304 , if the child who is the
258 subject of the petition is not in the protective custody of the division, a court may order that the
259 child be removed from the child's home or otherwise taken into protective custody if the court
260 finds, by a preponderance of the evidence, that any one or more of the following circumstances
261 exist:
262 (a) (i) there is an imminent danger to the physical health or safety of the child; and
263 (ii) the child's physical health or safety may not be protected without removing the
264 child from the custody of the child's parent or guardian;
265 (b) (i) a parent or guardian engages in or threatens the child with unreasonable conduct
266 that causes the child to suffer emotional damage; and
267 (ii) there are no reasonable means available by which the child's emotional health may
268 be protected without removing the child from the custody of the child's parent or guardian;
269 (c) the child or another child residing in the same household has been, or is considered
270 to be at substantial risk of being, physically abused, sexually abused, or sexually exploited, by a
271 parent or guardian, a member of the parent's or guardian's household, or other person known to
272 the parent or guardian;
273 (d) the parent or guardian is unwilling to have physical custody of the child;
Senate Committee Amendments 2-26-2014 lp/lak
274
(e) the child is abandoned or left without any provision for the child's support;274
275 (f) a parent or guardian who has been incarcerated or institutionalized has not arranged
276 or cannot arrange for safe and appropriate care for the child;
277 (g) (i) a relative or other adult custodian with whom the child is left by the parent or
278 guardian is unwilling or unable to provide care or support for the child;
279 (ii) the whereabouts of the parent or guardian are unknown; and
280 (iii) reasonable efforts to locate the parent or guardian are unsuccessful;
281 (h) the child is in immediate need of medical care;
282 (i) (i) a parent's or guardian's actions, omissions, or habitual action create an
283 environment that poses a threat to the child's health or safety; or
284 (ii) a parent's or guardian's action in leaving a child unattended would reasonably pose
285 a threat to the child's health or safety;
286 (j) the child or another child residing in the same household has been neglected;
287 (k) the child's natural parent:
288 (A) intentionally, knowingly, or recklessly causes the death of another parent of the
289 child;
290 (B) is identified by a law enforcement S. [
290a investigation
291 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
292 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
293 recklessly causing the death of another parent of the child;
294 [
295 [
296 parent or guardian, is charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug
297 Lab Act; and
298 (ii) any clandestine laboratory operation was located in the residence or on the property
299 where the child resided; or
300 [
301 (2) (a) For purposes of Subsection (1)(a), if a child has previously been adjudicated as
302 abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
303 occurs involving the same substantiated abuser or under similar circumstance as the previous
304 abuse, that fact constitutes prima facie evidence that the child cannot safely remain in the
305
306 (b) For purposes of Subsection (1)(c):
307 (i) another child residing in the same household may not be removed from the home
308 unless that child is considered to be at substantial risk of being physically abused, sexually
309 abused, or sexually exploited as described in Subsection (1)(c) or Subsection (2)(b)(ii); and
310 (ii) if a parent or guardian has received actual notice that physical abuse, sexual abuse,
311 or sexual exploitation by a person known to the parent has occurred, and there is evidence that
312 the parent or guardian failed to protect the child, after having received the notice, by allowing
313 the child to be in the physical presence of the alleged abuser, that fact constitutes prima facie
314 evidence that the child is at substantial risk of being physically abused, sexually abused, or
315 sexually exploited.
316 (3) In the absence of one of the factors described in Subsection (1), a court may not
317 remove a child from the parent's or guardian's custody on the basis of:
318 (a) educational neglect, truancy, or failure to comply with a court order to attend
319 school;
320 (b) mental illness or poverty of the parent or guardian; or
321 (c) disability of the parent or guardian, as defined in Section 57-21-2 .
322 (4) A child removed from the custody of the child's parent or guardian under this
323 section may not be placed or kept in a secure detention facility pending further court
324 proceedings unless the child is detainable based on guidelines promulgated by the Division of
325 Juvenile Justice Services.
326 (5) This section does not preclude removal of a child from the child's home without a
327 warrant or court order under Section 62A-4a-202.1 .
328 (6) (a) Except as provided in Subsection (6)(b), a court or the Division of Child and
329 Family Services may not remove a child from the custody of the child's parent or guardian on
330 the sole or primary basis that the parent or guardian refuses to consent to:
331 (i) the administration of a psychotropic medication to a child;
332 (ii) a psychiatric, psychological, or behavioral treatment for a child; or
333 (iii) a psychiatric or behavioral health evaluation of a child.
334 (b) Notwithstanding Subsection (6)(a), a court or the Division of Child and Family
335 Services may remove a child under conditions that would otherwise be prohibited under
336
337 serious, imminent risk to the child's physical safety or the physical safety of others.
338 Section 3. Section 78A-6-306 is amended to read:
339 78A-6-306. Shelter hearing.
340 (1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
341 after any one or all of the following occur:
342 (a) removal of the child from the child's home by the division;
343 (b) placement of the child in the protective custody of the division;
344 (c) emergency placement under Subsection 62A-4a-202.1 (4);
345 (d) as an alternative to removal of the child, a parent enters a domestic violence shelter
346 at the request of the division; or
347 (e) a "Motion for Expedited Placement in Temporary Custody" is filed under
348 Subsection 78A-6-106 (4).
349 (2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
350 through (e), the division shall issue a notice that contains all of the following:
351 (a) the name and address of the person to whom the notice is directed;
352 (b) the date, time, and place of the shelter hearing;
353 (c) the name of the child on whose behalf a petition is being brought;
354 (d) a concise statement regarding:
355 (i) the reasons for removal or other action of the division under Subsection (1); and
356 (ii) the allegations and code sections under which the proceeding has been instituted;
357 (e) a statement that the parent or guardian to whom notice is given, and the child, are
358 entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
359 indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
360 provided in accordance with the provisions of Section 78A-6-1111 ; and
361 (f) a statement that the parent or guardian is liable for the cost of support of the child in
362 the protective custody, temporary custody, and custody of the division, and the cost for legal
363 counsel appointed for the parent or guardian under Subsection (2)(e), according to the financial
364 ability of the parent or guardian.
365 (3) The notice described in Subsection (2) shall be personally served as soon as
366 possible, but no later than one business day after removal of the child from the child's home, or
367
368 78A-6-106 (4), on:
369 (a) the appropriate guardian ad litem; and
370 (b) both parents and any guardian of the child, unless the parents or guardians cannot
371 be located.
372 (4) The following persons shall be present at the shelter hearing:
373 (a) the child, unless it would be detrimental for the child;
374 (b) the child's parents or guardian, unless the parents or guardian cannot be located, or
375 fail to appear in response to the notice;
376 (c) counsel for the parents, if one is requested;
377 (d) the child's guardian ad litem;
378 (e) the caseworker from the division who is assigned to the case; and
379 (f) the attorney from the attorney general's office who is representing the division.
380 (5) (a) At the shelter hearing, the court shall:
381 (i) provide an opportunity to provide relevant testimony to:
382 (A) the child's parent or guardian, if present; and
383 (B) any other person having relevant knowledge; and
384 (ii) subject to Section 78A-6-305 , provide an opportunity for the child to testify.
385 (b) The court:
386 (i) may consider all relevant evidence, in accordance with the Utah Rules of Juvenile
387 Procedure;
388 (ii) shall hear relevant evidence presented by the child, the child's parent or guardian,
389 the requesting party, or their counsel; and
390 (iii) may in its discretion limit testimony and evidence to only that which goes to the
391 issues of removal and the child's need for continued protection.
392 (6) If the child is in the protective custody of the division, the division shall report to
393 the court:
394 (a) the reason why the child was removed from the parent's or guardian's custody;
395 (b) any services provided to the child and the child's family in an effort to prevent
396 removal;
397 (c) the need, if any, for continued shelter;
398
399 the child's parent or guardian; and
400 (e) subject to Subsections 78A-6-307 (18)(c) through (e), whether any relatives of the
401 child or friends of the child's parents may be able and willing to accept temporary placement of
402 the child.
403 (7) The court shall consider all relevant evidence provided by persons or entities
404 authorized to present relevant evidence pursuant to this section.
405 (8) (a) If necessary to protect the child, preserve the rights of a party, or for other good
406 cause shown, the court may grant no more than one continuance, not to exceed five judicial
407 days.
408 (b) A court shall honor, as nearly as practicable, the request by a parent or guardian for
409 a continuance under Subsection (8)(a).
410 (9) (a) If the child is in the protective custody of the division, the court shall order that
411 the child be released from the protective custody of the division unless it finds, by a
412 preponderance of the evidence, that any one of the following exist:
413 (i) subject to Subsection (9)(b)(i), there is a substantial danger to the physical health or
414 safety of the child and the child's physical health or safety may not be protected without
415 removing the child from the custody of the child's parent;
416 (ii) (A) the child is suffering emotional damage; and
417 (B) there are no reasonable means available by which the child's emotional health may
418 be protected without removing the child from the custody of the child's parent;
419 (iii) there is a substantial risk that the child will suffer abuse or neglect if the child is
420 not removed from the custody of the child's parents;
421 (iv) subject to Subsection (9)(b)(ii), the child or a minor residing in the same
422 household has been, or is considered to be at substantial risk of being, physically abused,
423 sexually abused, or sexually exploited by a:
424 (A) parent;
425 (B) member of the parent's household; or
426 (C) person known to the parent;
427 (v) the parent is unwilling to have physical custody of the child;
428 (vi) the child is without any provision for the child's support;
Senate Committee Amendments 2-26-2014 lp/lak
429
(vii) a parent who is incarcerated or institutionalized has not or cannot arrange for safe429
430 and appropriate care for the child;
431 (viii) (A) a relative or other adult custodian with whom the child is left by the parent is
432 unwilling or unable to provide care or support for the child;
433 (B) the whereabouts of the parent are unknown; and
434 (C) reasonable efforts to locate the parent are unsuccessful;
435 (ix) the child is in urgent need of medical care;
436 (x) the physical environment or the fact that the child is left unattended beyond a
437 reasonable period of time poses a threat to the child's health or safety;
438 (xi) the child or a minor residing in the same household has been neglected;
439 (xii) the parent, or an adult residing in the same household as the parent, is charged or
440 arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
441 laboratory operation was located in the residence or on the property where the child resided;
442 [
443 (xiii) the child's welfare is substantially endangered[
444 (xiv) the child's natural parent:
445 (A) intentionally, knowingly, or recklessly causes the death of another parent of the
446 child;
447 (B) is identified by a law enforcement S. [
447a investigation
448 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
449 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
450 recklessly causing the death of another parent of the child.
451 (b) (i) Prima facie evidence of the finding described in Subsection (9)(a)(i) is
452 established if:
453 (A) a court previously adjudicated that the child suffered abuse, neglect, or dependency
454 involving the parent; and
455 (B) a subsequent incident of abuse, neglect, or dependency involving the parent occurs.
456 (ii) For purposes of Subsection (9)(a)(iv), if the court finds that the parent knowingly
457 allowed the child to be in the physical care of a person after the parent received actual notice
458 that the person physically abused, sexually abused, or sexually exploited the child, that fact
459 constitutes prima facie evidence that there is a substantial risk that the child will be physically
460
461 (10) (a) (i) The court shall also make a determination on the record as to whether
462 reasonable efforts were made to prevent or eliminate the need for removal of the child from the
463 child's home and whether there are available services that would prevent the need for continued
464 removal.
465 (ii) If the court finds that the child can be safely returned to the custody of the child's
466 parent or guardian through the provision of those services, the court shall place the child with
467 the child's parent or guardian and order that those services be provided by the division.
468 (b) In making the determination described in Subsection (10)(a), and in ordering and
469 providing services, the child's health, safety, and welfare shall be the paramount concern, in
470 accordance with federal law.
471 (11) Where the division's first contact with the family occurred during an emergency
472 situation in which the child could not safely remain at home, the court shall make a finding that
473 any lack of preplacement preventive efforts was appropriate.
474 (12) In cases where actual sexual abuse, sexual exploitation, abandonment, severe
475 abuse, or severe neglect are involved, neither the division nor the court has any duty to make
476 "reasonable efforts" or to, in any other way, attempt to maintain a child in the child's home,
477 return a child to the child's home, provide reunification services, or attempt to rehabilitate the
478 offending parent or parents.
479 (13) The court may not order continued removal of a child solely on the basis of
480 educational neglect as described in Subsection 78A-6-105 (25)(b) truancy, or failure to comply
481 with a court order to attend school.
482 (14) (a) Whenever a court orders continued removal of a child under this section, the
483 court shall state the facts on which that decision is based.
484 (b) If no continued removal is ordered and the child is returned home, the court shall
485 state the facts on which that decision is based.
486 (15) If the court finds that continued removal and temporary custody are necessary for
487 the protection of a child because harm may result to the child if the child were returned home,
488 the court shall order continued removal regardless of:
489 (a) any error in the initial removal of the child;
490 (b) the failure of a party to comply with notice provisions; or
491
492 and Family Services.
493 Section 4. Section 78A-6-312 is amended to read:
494 78A-6-312. Dispositional hearing -- Reunification services -- Exceptions.
495 (1) The court may:
496 (a) make any of the dispositions described in Section 78A-6-117 ;
497 (b) place the minor in the custody or guardianship of any:
498 (i) individual; or
499 (ii) public or private entity or agency; or
500 (c) order:
501 (i) protective supervision;
502 (ii) family preservation;
503 (iii) subject to Subsections (12)(b) and 78A-6-117 (2)(n)(iii), medical or mental health
504 treatment; or
505 (iv) other services.
506 (2) Whenever the court orders continued removal at the dispositional hearing, and that
507 the minor remain in the custody of the division, the court shall first:
508 (a) establish a primary permanency goal for the minor; and
509 (b) determine whether, in view of the primary permanency goal, reunification services
510 are appropriate for the minor and the minor's family, pursuant to Subsections (20) through (22).
511 (3) Subject to Subsections (6) and (7), if the court determines that reunification
512 services are appropriate for the minor and the minor's family, the court shall provide for
513 reasonable parent-time with the parent or parents from whose custody the minor was removed,
514 unless parent-time is not in the best interest of the minor.
515 (4) In cases where obvious sexual abuse, sexual exploitation, abandonment, severe
516 abuse, or severe neglect are involved, neither the division nor the court has any duty to make
517 "reasonable efforts" or to, in any other way, attempt to provide reunification services, or to
518 attempt to rehabilitate the offending parent or parents.
519 (5) In all cases, the minor's health, safety, and welfare shall be the court's paramount
520 concern in determining whether reasonable efforts to reunify should be made.
521 (6) For purposes of Subsection (3), parent-time is in the best interests of a minor unless
522
523 (a) protect the physical safety of the minor;
524 (b) protect the life of the minor; or
525 (c) prevent the minor from being traumatized by contact with the parent due to the
526 minor's fear of the parent in light of the nature of the alleged abuse or neglect.
527 (7) Notwithstanding Subsection (3), a court may not deny parent-time based solely on a
528 parent's failure to:
529 (a) prove that the parent has not used legal or illegal substances; or
530 (b) comply with an aspect of the child and family plan that is ordered by the court.
531 (8) (a) In addition to the primary permanency goal, the court shall establish a
532 concurrent permanency goal that shall include:
533 (i) a representative list of the conditions under which the primary permanency goal will
534 be abandoned in favor of the concurrent permanency goal; and
535 (ii) an explanation of the effect of abandoning or modifying the primary permanency
536 goal.
537 (b) In determining the primary permanency goal and concurrent permanency goal, the
538 court shall consider:
539 (i) the preference for kinship placement over nonkinship placement;
540 (ii) the potential for a guardianship placement if the parent-child relationship is legally
541 terminated and no appropriate adoption placement is available; and
542 (iii) the use of an individualized permanency goal, only as a last resort.
543 (9) A permanency hearing shall be conducted in accordance with Subsection
544 78A-6-314 (1)(b) within 30 days after the day on which the dispositional hearing ends if
545 something other than reunification is initially established as a minor's primary permanency
546 goal.
547 (10) (a) The court may amend a minor's primary permanency goal before the
548 establishment of a final permanency plan under Section 78A-6-314 .
549 (b) The court is not limited to the terms of the concurrent permanency goal in the event
550 that the primary permanency goal is abandoned.
551 (c) If, at any time, the court determines that reunification is no longer a minor's primary
552 permanency goal, the court shall conduct a permanency hearing in accordance with Section
553
554 (i) 30 days after the day on which the court makes the determination described in this
555 Subsection (10)(c); or
556 (ii) the day on which the provision of reunification services, described in Section
557 78A-6-314 , ends.
558 (11) (a) If the court determines that reunification services are appropriate, it shall order
559 that the division make reasonable efforts to provide services to the minor and the minor's
560 parent for the purpose of facilitating reunification of the family, for a specified period of time.
561 (b) In providing the services described in Subsection (11)(a), the minor's health, safety,
562 and welfare shall be the division's paramount concern, and the court shall so order.
563 (12) (a) The court shall:
564 (i) determine whether the services offered or provided by the division under the child
565 and family plan constitute "reasonable efforts" on the part of the division;
566 (ii) determine and define the responsibilities of the parent under the child and family
567 plan in accordance with Subsection 62A-4a-205 (6)(e); and
568 (iii) identify verbally on the record, or in a written document provided to the parties,
569 the responsibilities described in Subsection (12)(a)(ii), for the purpose of assisting in any future
570 determination regarding the provision of reasonable efforts, in accordance with state and
571 federal law.
572 (b) If the parent is in a substance abuse treatment program, other than a certified drug
573 court program:
574 (i) the court may order the parent to submit to supplementary drug or alcohol testing in
575 addition to the testing recommended by the parent's substance abuse program based on a
576 finding of reasonable suspicion that the parent is abusing drugs or alcohol; and
577 (ii) the court may order the parent to provide the results of drug or alcohol testing
578 recommended by the substance abuse program to the court or division.
579 (13) (a) The time period for reunification services may not exceed 12 months from the
580 date that the minor was initially removed from the minor's home, unless the time period is
581 extended under Subsection 78A-6-314 (8).
582 (b) Nothing in this section may be construed to entitle any parent to an entire 12
583 months of reunification services.
584
585 any time.
586 (b) If, at any time, continuation of reasonable efforts to reunify a minor is determined
587 to be inconsistent with the final permanency plan for the minor established pursuant to Section
588 78A-6-314 , then measures shall be taken, in a timely manner, to:
589 (i) place the minor in accordance with the permanency plan; and
590 (ii) complete whatever steps are necessary to finalize the permanent placement of the
591 minor.
592 (15) Any physical custody of the minor by the parent or a relative during the period
593 described in Subsections (11) through (14) does not interrupt the running of the period.
594 (16) (a) If reunification services are ordered, a permanency hearing shall be conducted
595 by the court in accordance with Section 78A-6-314 at the expiration of the time period for
596 reunification services.
597 (b) The permanency hearing shall be held no later than 12 months after the original
598 removal of the minor.
599 (c) If reunification services are not ordered, a permanency hearing shall be conducted
600 within 30 days, in accordance with Section 78A-6-314 .
601 (17) With regard to a minor in the custody of the division whose parent or parents are
602 ordered to receive reunification services but who have abandoned that minor for a period of six
603 months from the date that reunification services were ordered:
604 (a) the court shall terminate reunification services; and
605 (b) the division shall petition the court for termination of parental rights.
606 (18) When a court conducts a permanency hearing for a minor under Section
607 78A-6-314 , the court shall attempt to keep the minor's sibling group together if keeping the
608 sibling group together is:
609 (a) practicable; and
610 (b) in accordance with the best interest of the minor.
611 (19) (a) Because of the state's interest in and responsibility to protect and provide
612 permanency for minors who are abused, neglected, or dependent, the Legislature finds that a
613 parent's interest in receiving reunification services is limited.
614 (b) The court may determine that:
Senate Committee Amendments 2-26-2014 lp/lak
615
(i) efforts to reunify a minor with the minor's family are not reasonable or appropriate,615
616 based on the individual circumstances; and
617 (ii) reunification services should not be provided.
618 (c) In determining "reasonable efforts" to be made with respect to a minor, and in
619 making "reasonable efforts," the minor's health, safety, and welfare shall be the paramount
620 concern.
621 (20) There is a presumption that reunification services should not be provided to a
622 parent if the court finds, by clear and convincing evidence, that any of the following
623 circumstances exist:
624 (a) the whereabouts of the parents are unknown, based upon a verified affidavit
625 indicating that a reasonably diligent search has failed to locate the parent;
626 (b) subject to Subsection (21)(a), the parent is suffering from a mental illness of such
627 magnitude that it renders the parent incapable of utilizing reunification services;
628 (c) the minor was previously adjudicated as an abused child due to physical abuse,
629 sexual abuse, or sexual exploitation, and following the adjudication the minor:
630 (i) was removed from the custody of the minor's parent;
631 (ii) was subsequently returned to the custody of the parent; and
632 (iii) is being removed due to additional physical abuse, sexual abuse, or sexual
633 exploitation;
634 (d) the parent:
635 (i) caused the death of another minor through abuse or neglect;
636 (ii) committed, aided, abetted, attempted, conspired, or solicited to commit:
637 (A) murder or manslaughter of a child; or
638 (B) child abuse homicide;
639 (iii) committed sexual abuse against the child; [
640 (iv) is a registered sex offender or required to register as a sex offender; or
641 (v) (A) intentionally, knowingly, or recklessly causes the death of another parent of the
642 child;
643 (B) is identified by a law enforcement S. [
643a investigation
644 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
645 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
646
647 (e) the minor suffered severe abuse by the parent or by any person known by the
648 parent, if the parent knew or reasonably should have known that the person was abusing the
649 minor;
650 (f) the minor is adjudicated an abused child as a result of severe abuse by the parent,
651 and the court finds that it would not benefit the minor to pursue reunification services with the
652 offending parent;
653 (g) the parent's rights are terminated with regard to any other minor;
654 (h) the minor was removed from the minor's home on at least two previous occasions
655 and reunification services were offered or provided to the family at those times;
656 (i) the parent has abandoned the minor for a period of six months or longer;
657 (j) the parent permitted the child to reside, on a permanent or temporary basis, at a
658 location where the parent knew or should have known that a clandestine laboratory operation
659 was located;
660 (k) except as provided in Subsection (21)(b), with respect to a parent who is the child's
661 birth mother, the child has fetal alcohol syndrome, fetal alcohol spectrum disorder, or was
662 exposed to an illegal or prescription drug that was abused by the child's mother while the child
663 was in utero, if the child was taken into division custody for that reason, unless the mother
664 agrees to enroll in, is currently enrolled in, or has recently and successfully completed a
665 substance abuse treatment program approved by the department; or
666 (l) any other circumstance that the court determines should preclude reunification
667 efforts or services.
668 (21) (a) The finding under Subsection (20)(b) shall be based on competent evidence
669 from at least two medical or mental health professionals, who are not associates, establishing
670 that, even with the provision of services, the parent is not likely to be capable of adequately
671 caring for the minor within 12 months after the day on which the court finding is made.
672 (b) A judge may disregard the provisions of Subsection (20)(k) if the court finds, under
673 the circumstances of the case, that the substance abuse treatment described in Subsection
674 (20)(k) is not warranted.
675 (22) In determining whether reunification services are appropriate, the court shall take
676 into consideration:
677
678 and family plan;
679 (b) the fact that the minor was abused while the parent was under the influence of
680 drugs or alcohol;
681 (c) any history of violent behavior directed at the child or an immediate family
682 member;
683 (d) whether a parent continues to live with an individual who abused the minor;
684 (e) any patterns of the parent's behavior that have exposed the minor to repeated abuse;
685 (f) testimony by a competent professional that the parent's behavior is unlikely to be
686 successful; and
687 (g) whether the parent has expressed an interest in reunification with the minor.
688 (23) (a) If reunification services are not ordered pursuant to Subsections (19) through
689 (21), and the whereabouts of a parent become known within six months after the day on which
690 the out-of-home placement of the minor is made, the court may order the division to provide
691 reunification services.
692 (b) The time limits described in Subsections (2) through (18) are not tolled by the
693 parent's absence.
694 (24) (a) If a parent is incarcerated or institutionalized, the court shall order reasonable
695 services unless it determines that those services would be detrimental to the minor.
696 (b) In making the determination described in Subsection (24)(a), the court shall
697 consider:
698 (i) the age of the minor;
699 (ii) the degree of parent-child bonding;
700 (iii) the length of the sentence;
701 (iv) the nature of the treatment;
702 (v) the nature of the crime or illness;
703 (vi) the degree of detriment to the minor if services are not offered;
704 (vii) for a minor 10 years of age or older, the minor's attitude toward the
705 implementation of family reunification services; and
706 (viii) any other appropriate factors.
707 (c) Reunification services for an incarcerated parent are subject to the time limitations
708
709 (d) Reunification services for an institutionalized parent are subject to the time
710 limitations imposed in Subsections (2) through (18), unless the court determines that continued
711 reunification services would be in the minor's best interest.
712 (25) If, pursuant to Subsections (20)(b) through (l), the court does not order
713 reunification services, a permanency hearing shall be conducted within 30 days, in accordance
714 with Section 78A-6-314 .
715 Section 5. Section 78A-6-314 is amended to read:
716 78A-6-314. Permanency hearing -- Final plan -- Petition for termination of
717 parental rights filed -- Hearing on termination of parental rights.
718 (1) (a) When reunification services have been ordered in accordance with Section
719 78A-6-312 , with regard to a minor who is in the custody of the Division of Child and Family
720 Services, a permanency hearing shall be held by the court no later than 12 months after the day
721 on which the minor was initially removed from the minor's home.
722 (b) If reunification services were not ordered at the dispositional hearing, a permanency
723 hearing shall be held within 30 days after the day on which the dispositional hearing ends.
724 (2) (a) If reunification services were ordered by the court in accordance with Section
725 78A-6-312 , the court shall, at the permanency hearing, determine, consistent with Subsection
726 (3), whether the minor may safely be returned to the custody of the minor's parent.
727 (b) If the court finds, by a preponderance of the evidence, that return of the minor to
728 the minor's parent would create a substantial risk of detriment to the minor's physical or
729 emotional well-being, the minor may not be returned to the custody of the minor's parent.
730 (c) Prima facie evidence that return of the minor to a parent or guardian would create a
731 substantial risk of detriment to the minor is established if:
732 (i) the parent or guardian fails to:
733 [
734 [
735 [
736 (ii) the child's natural parent:
737 (A) intentionally, knowingly, or recklessly causes the death of another parent of the
738 child;
Senate Committee Amendments 2-26-2014 lp/lak
739
(B) is identified by a law enforcement S. [
739
739a investigation
740 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
741 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
742 recklessly causing the death of another parent of the child.
743 (3) In making a determination under Subsection (2)(a), the court shall review and
744 consider:
745 (a) the report prepared by the Division of Child and Family Services;
746 (b) any admissible evidence offered by the minor's guardian ad litem;
747 (c) any report submitted by the division under Subsection 78A-6-315 (3)(a)(i);
748 (d) any evidence regarding the efforts or progress demonstrated by the parent; and
749 (e) the extent to which the parent cooperated and utilized the services provided.
750 (4) With regard to a case where reunification services were ordered by the court, if a
751 minor is not returned to the minor's parent or guardian at the permanency hearing, the court
752 shall, unless the time for the provision of reunification services is extended under Subsection
753 (8):
754 (a) order termination of reunification services to the parent;
755 (b) make a final determination regarding whether termination of parental rights,
756 adoption, or permanent custody and guardianship is the most appropriate final plan for the
757 minor, taking into account the minor's primary permanency goal established by the court
758 pursuant to Section 78A-6-312 ; and
759 (c) establish a concurrent plan that identifies the second most appropriate final plan for
760 the minor.
761 (5) If the Division of Child and Family Services documents to the court that there is a
762 compelling reason that adoption, reunification, guardianship, and a placement described in
763 Subsection 78A-6-306 (6)(e) are not in the minor's best interest, the court may order another
764 planned permanent living arrangement, in accordance with federal law.
765 (6) If the minor clearly desires contact with the parent, the court shall take the minor's
766 desire into consideration in determining the final plan.
767 (7) Except as provided in Subsection (8), the court may not extend reunification
768 services beyond 12 months after the day on which the minor was initially removed from the
769 minor's home, in accordance with the provisions of Section 78A-6-312 .
770
771 more than 90 days if the court finds, beyond a preponderance of the evidence, that:
772 (i) there has been substantial compliance with the child and family plan;
773 (ii) reunification is probable within that 90-day period; and
774 (iii) the extension is in the best interest of the minor.
775 (b) (i) Except as provided in Subsection (8)(c), the court may not extend any
776 reunification services beyond 15 months after the day on which the minor was initially
777 removed from the minor's home.
778 (ii) Delay or failure of a parent to establish paternity or seek custody does not provide a
779 basis for the court to extend services for that parent beyond the 12-month period described in
780 Subsection (7).
781 (c) In accordance with Subsection (8)(d), the court may extend reunification services
782 for one additional 90-day period, beyond the 90-day period described in Subsection (8)(a), if:
783 (i) the court finds, by clear and convincing evidence, that:
784 (A) the parent has substantially complied with the child and family plan;
785 (B) it is likely that reunification will occur within the additional 90-day period; and
786 (C) the extension is in the best interest of the child;
787 (ii) the court specifies the facts upon which the findings described in Subsection
788 (8)(c)(i) are based; and
789 (iii) the court specifies the time period in which it is likely that reunification will occur.
790 (d) A court may not extend the time period for reunification services without
791 complying with the requirements of this Subsection (8) before the extension.
792 (e) In determining whether to extend reunification services for a minor, a court shall
793 take into consideration the status of the minor siblings of the minor.
794 (9) The court may, in its discretion:
795 (a) enter any additional order that it determines to be in the best interest of the minor,
796 so long as that order does not conflict with the requirements and provisions of Subsections (4)
797 through (8); or
798 (b) order the division to provide protective supervision or other services to a minor and
799 the minor's family after the division's custody of a minor has been terminated.
800 (10) If the final plan for the minor is to proceed toward termination of parental rights,
801
802 calendar days after the permanency hearing.
803 (11) (a) Any party to an action may, at any time, petition the court for an expedited
804 permanency hearing on the basis that continuation of reunification efforts are inconsistent with
805 the permanency needs of the minor.
806 (b) If the court so determines, it shall order, in accordance with federal law, that:
807 (i) the minor be placed in accordance with the permanency plan; and
808 (ii) whatever steps are necessary to finalize the permanent placement of the minor be
809 completed as quickly as possible.
810 (12) Nothing in this section may be construed to:
811 (a) entitle any parent to reunification services for any specified period of time;
812 (b) limit a court's ability to terminate reunification services at any time prior to a
813 permanency hearing; or
814 (c) limit or prohibit the filing of a petition for termination of parental rights by any
815 party, or a hearing on termination of parental rights, at any time prior to a permanency hearing.
816 (13) (a) Subject to Subsection (13)(b), if a petition for termination of parental rights is
817 filed prior to the date scheduled for a permanency hearing, the court may consolidate the
818 hearing on termination of parental rights with the permanency hearing.
819 (b) For purposes of Subsection (13)(a), if the court consolidates the hearing on
820 termination of parental rights with the permanency hearing:
821 (i) the court shall first make a finding regarding whether reasonable efforts have been
822 made by the Division of Child and Family Services to finalize the permanency goal for the
823 minor; and
824 (ii) any reunification services shall be terminated in accordance with the time lines
825 described in Section 78A-6-312 .
826 (c) A decision on a petition for termination of parental rights shall be made within 18
827 months from the day on which the minor is removed from the minor's home.
828 (14) If a court determines that a child will not be returned to a parent of the child, the
829 court shall consider appropriate placement options inside and outside of the state.
[Bill Documents][Bills Directory]