S.B. 173

1

CHILD PROTECTION AMENDMENTS
2 2014 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Todd Weiler
5 House Sponsor: ____________
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 neglect to include a child's contact with a natural parent
13 who is identified by a law enforcement officer as the primary suspect in an active
14 murder investigation where the alleged victim is the natural parent's cohabitant or
15 who is being prosecuted for or has been convicted of murder or aggravated murder
16 of the natural parent's cohabitant;
17 . provides that a court may order that a child be removed from the child's home or
18 otherwise taken into protective custody if the court finds, by a preponderance of the
19 evidence, that the child's natural parent is identified by a law enforcement officer as
20 the primary suspect in an active murder investigation where the alleged victim is the
21 natural parent's cohabitant or is being prosecuted for or has been convicted of
22 murder or aggravated murder of the natural parent's cohabitant;
23 . provides that, at a shelter hearing, the court may order that a child be retained in
24 protective custody of the division if the court finds, by a preponderance of the
25 evidence, that the child's natural parent is identified by a law enforcement officer as
26 the primary suspect in an active murder investigation where the alleged victim is the
27 natural parent's cohabitant or is being prosecuted for or has been convicted of

28 murder or aggravated murder of the natural parent's cohabitant; and
29 . establishes a presumption that reunification services should not be provided to a
30 parent if the court finds, by clear and convincing evidence, that the parent is
31 identified by a law enforcement officer as the primary suspect in an active murder
32 investigation where the alleged victim is the natural parent's cohabitant or is being
33 prosecuted for or has been convicted of murder or aggravated murder of the natural
34 parent's cohabitant.
35 Money Appropriated in this Bill:
36 None
37 Other Special Clauses:
38 None
39 Utah Code Sections Affected:
40 AMENDS:
41 78A-6-105 , as last amended by Laws of Utah 2012, Chapters 49, 303, and 316
42 78A-6-302 , as last amended by Laws of Utah 2012, Chapter 293
43 78A-6-306 , as last amended by Laws of Utah 2012, Chapter 293
44 78A-6-312 , as last amended by Laws of Utah 2013, Chapters 171 and 416
45 78A-6-314 , as last amended by Laws of Utah 2010, Chapter 322
46
47 Be it enacted by the Legislature of the state of Utah:
48 Section 1. Section 78A-6-105 is amended to read:
49 78A-6-105. Definitions.
50 As used in this chapter:
51 (1) (a) "Abuse" means:
52 (i) nonaccidental harm of a child;
53 (ii) threatened harm of a child;
54 (iii) sexual exploitation; or
55 (iv) sexual abuse.
56 (b) "Abuse" does not include:
57 (i) reasonable discipline or management of a child, including withholding privileges;
58 (ii) conduct described in Section 76-2-401 ; or

59 (iii) the use of reasonable and necessary physical restraint or force on a child:
60 (A) in self-defense;
61 (B) in defense of others;
62 (C) to protect the child; or
63 (D) to remove a weapon in the possession of a child for any of the reasons described in
64 Subsections (1)(b)(iii)(A) through (C).
65 (2) "Abused child" means a child who has been subjected to abuse.
66 (3) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
67 alleged in the petition have been proved. A finding of not competent to proceed pursuant to
68 Section 78A-6-1302 is not an adjudication.
69 (4) "Adult" means a person 18 years of age or over, except that a person 18 years or
70 over under the continuing jurisdiction of the juvenile court pursuant to Section 78A-6-120 shall
71 be referred to as a minor.
72 (5) "Aggravated murder" is as defined in Section 76-5-202 .
73 [(5)] (6) "Board" means the Board of Juvenile Court Judges.
74 [(6)] (7) "Child" means a person under 18 years of age.
75 [(7)] (8) "Child placement agency" means:
76 (a) a private agency licensed to receive a child for placement or adoption under this
77 code; or
78 (b) a private agency that receives a child for placement or adoption in another state,
79 which agency is licensed or approved where such license or approval is required by law.
80 [(8)] (9) "Clandestine laboratory operation" is as defined in Section 58-37d-3 .
81 (10) "Cohabitant" is as defined in Section 78B-7-102 .
82 [(9)] (11) "Commit" means, unless specified otherwise:
83 (a) with respect to a child, to transfer legal custody; and
84 (b) with respect to a minor who is at least 18 years of age, to transfer custody.
85 [(10)] (12) "Court" means the juvenile court.
86 [(11)] (13) "Dependent child" includes a child who is homeless or without proper care
87 through no fault of the child's parent, guardian, or custodian.
88 [(12)] (14) "Deprivation of custody" means transfer of legal custody by the court from
89 a parent or the parents or a previous legal custodian to another person, agency, or institution.

90 [(13)] (15) "Detention" means home detention and secure detention as defined in
91 Section 62A-7-101 for the temporary care of a minor who requires secure custody in a
92 physically restricting facility:
93 (a) pending court disposition or transfer to another jurisdiction; or
94 (b) while under the continuing jurisdiction of the court.
95 [(14)] (16) "Division" means the Division of Child and Family Services.
96 [(15)] (17) "Formal referral" means a written report from a peace officer or other
97 person informing the court that a minor is or appears to be within the court's jurisdiction and
98 that a petition may be filed.
99 [(16)] (18) "Group rehabilitation therapy" means psychological and social counseling
100 of one or more persons in the group, depending upon the recommendation of the therapist.
101 [(17)] (19) "Guardianship of the person" includes the authority to consent to:
102 (a) marriage;
103 (b) enlistment in the armed forces;
104 (c) major medical, surgical, or psychiatric treatment; or
105 (d) legal custody, if legal custody is not vested in another person, agency, or institution.
106 [(18)] (20) "Habitual truant" is as defined in Section 53A-11-101 .
107 [(19)] (21) "Harm" means:
108 (a) physical, emotional, or developmental injury or damage;
109 (b) sexual abuse; or
110 (c) sexual exploitation.
111 [(20)] (22) (a) "Incest" means engaging in sexual intercourse with a person whom the
112 perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle, aunt,
113 nephew, niece, or first cousin.
114 (b) The relationships described in Subsection [(20)] (22)(a) include:
115 (i) blood relationships of the whole or half blood, without regard to legitimacy;
116 (ii) relationships of parent and child by adoption; and
117 (iii) relationships of stepparent and stepchild while the marriage creating the
118 relationship of a stepparent and stepchild exists.
119 [(21)] (23) "Intellectual disability" means:
120 (a) significantly subaverage intellectual functioning, an IQ of approximately 70 or

121 below on an individually administered IQ test, for infants, a clinical judgment of significantly
122 subaverage intellectual functioning;
123 (b) concurrent deficits or impairments in present adaptive functioning, the person's
124 effectiveness in meeting the standards expected for his or her age by the person's cultural
125 group, in at least two of the following areas: communication, self-care, home living,
126 social/interpersonal skills, use of community resources, self-direction, functional academic
127 skills, work, leisure, health, and safety; and
128 (c) the onset is before the person reaches the age of 18 years.
129 [(22)] (24) "Legal custody" means a relationship embodying the following rights and
130 duties:
131 (a) the right to physical custody of the minor;
132 (b) the right and duty to protect, train, and discipline the minor;
133 (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary
134 medical care;
135 (d) the right to determine where and with whom the minor shall live; and
136 (e) the right, in an emergency, to authorize surgery or other extraordinary care.
137 [(23)] (25) "Mental disorder" means a serious emotional and mental disturbance that
138 severely limits a minor's development and welfare over a significant period of time.
139 [(24)] (26) "Minor" means:
140 (a) a child; or
141 (b) a person who is:
142 (i) at least 18 years of age and younger than 21 years of age; and
143 (ii) under the jurisdiction of the juvenile court.
144 [(25)] (27) "Molestation" means that a person, with the intent to arouse or gratify the
145 sexual desire of any person:
146 (a) touches the anus or any part of the genitals of a child;
147 (b) takes indecent liberties with a child; or
148 (c) causes a child to take indecent liberties with the perpetrator or another.
149 (28) "Murder" is as defined in Section 76-5-203 .
150 [(26)] (29) "Natural parent" means a minor's biological or adoptive parent, and
151 includes the minor's noncustodial parent.

152 [(27)] (30) (a) "Neglect" means action or inaction causing:
153 (i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
154 Relinquishment of a Newborn Child;
155 (ii) lack of proper parental care of a child by reason of the fault or habits of the parent,
156 guardian, or custodian;
157 (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
158 subsistence, education, or medical care, or any other care necessary for the child's health,
159 safety, morals, or well-being; [or]
160 (iv) a child to be at risk of being neglected or abused because another child in the same
161 home is neglected or abused[.]; or
162 (v) a child to be at risk of being neglected or abused because a child's natural parent:
163 (A) is identified by a law enforcement officer as the primary suspect in an active
164 murder investigation where the alleged victim is the natural parent's cohabitant; or
165 (B) is being prosecuted for or has been convicted of murder or aggravated murder of
166 the natural parent's cohabitant.
167 (b) The aspect of neglect relating to education, described in Subsection [(27)]
168 (30)(a)(iii), means that, after receiving a notice of compulsory education violation under
169 Section 53A-11-101.5 , or notice that a parent or guardian has failed to cooperate with school
170 authorities in a reasonable manner as required under Subsection 53A-11-101.7 (5)(a), the parent
171 or guardian fails to make a good faith effort to ensure that the child receives an appropriate
172 education.
173 (c) A parent or guardian legitimately practicing religious beliefs and who, for that
174 reason, does not provide specified medical treatment for a child, is not guilty of neglect.
175 (d) (i) Notwithstanding Subsection [(27)] (30)(a), a health care decision made for a
176 child by the child's parent or guardian does not constitute neglect unless the state or other party
177 to the proceeding shows, by clear and convincing evidence, that the health care decision is not
178 reasonable and informed.
179 (ii) Nothing in Subsection [(27)] (30)(d)(i) may prohibit a parent or guardian from
180 exercising the right to obtain a second health care opinion.
181 [(28)] (31) "Neglected child" means a child who has been subjected to neglect.
182 [(29)] (32) "Nonjudicial adjustment" means closure of the case by the assigned

183 probation officer without judicial determination upon the consent in writing of:
184 (a) the assigned probation officer; and
185 (b) (i) the minor; or
186 (ii) the minor and the minor's parent, legal guardian, or custodian.
187 [(30)] (33) "Not competent to proceed" means that a minor, due to a mental disorder,
188 intellectual disability, or related condition as defined, lacks the ability to:
189 (a) understand the nature of the proceedings against them or of the potential disposition
190 for the offense charged; or
191 (b) consult with counsel and participate in the proceedings against them with a
192 reasonable degree of rational understanding.
193 [(31)] (34) "Physical abuse" means abuse that results in physical injury or damage to a
194 child.
195 [(32)] (35) "Probation" means a legal status created by court order following an
196 adjudication on the ground of a violation of law or under Section 78A-6-103 , whereby the
197 minor is permitted to remain in the minor's home under prescribed conditions and under
198 supervision by the probation department or other agency designated by the court, subject to
199 return to the court for violation of any of the conditions prescribed.
200 [(33)] (36) "Protective supervision" means a legal status created by court order
201 following an adjudication on the ground of abuse, neglect, or dependency, whereby the minor
202 is permitted to remain in the minor's home, and supervision and assistance to correct the abuse,
203 neglect, or dependency is provided by the probation department or other agency designated by
204 the court.
205 [(34)] (37) "Related condition" means a condition closely related to intellectual
206 disability in accordance with 42 C.F.R. Part 435.1010 and further defined in Rule R539-1-3,
207 Utah Administrative Code.
208 [(35)] (38) (a) "Residual parental rights and duties" means those rights and duties
209 remaining with the parent after legal custody or guardianship, or both, have been vested in
210 another person or agency, including:
211 (i) the responsibility for support;
212 (ii) the right to consent to adoption;
213 (iii) the right to determine the child's religious affiliation; and

214 (iv) the right to reasonable parent-time unless restricted by the court.
215 (b) If no guardian has been appointed, "residual parental rights and duties" also include
216 the right to consent to:
217 (i) marriage;
218 (ii) enlistment; and
219 (iii) major medical, surgical, or psychiatric treatment.
220 [(36)] (39) "Secure facility" means any facility operated by or under contract with the
221 Division of Juvenile Justice Services, that provides 24-hour supervision and confinement for
222 youth offenders committed to the division for custody and rehabilitation.
223 [(37)] (40) "Severe abuse" means abuse that causes or threatens to cause serious harm
224 to a child.
225 [(38)] (41) "Severe neglect" means neglect that causes or threatens to cause serious
226 harm to a child.
227 [(39)] (42) "Sexual abuse" means:
228 (a) an act or attempted act of sexual intercourse, sodomy, incest, or molestation
229 directed towards a child; or
230 (b) engaging in any conduct with a child that would constitute an offense under any of
231 the following, regardless of whether the person who engages in the conduct is actually charged
232 with, or convicted of, the offense:
233 (i) Title 76, Chapter 5, Part 4, Sexual Offenses;
234 (ii) child bigamy, Section 76-7-101.5 ;
235 (iii) incest, Section 76-7-102 ;
236 (iv) lewdness, Section 76-9-702 ;
237 (v) sexual battery, Section 76-9-702.1 ;
238 (vi) lewdness involving a child, Section 76-9-702.5 ; or
239 (vii) voyeurism, Section 76-9-702.7 .
240 [(40)] (43) "Sexual exploitation" means knowingly:
241 (a) employing, using, persuading, inducing, enticing, or coercing any child to:
242 (i) pose in the nude for the purpose of sexual arousal of any person; or
243 (ii) engage in any sexual or simulated sexual conduct for the purpose of photographing,
244 filming, recording, or displaying in any way the sexual or simulated sexual conduct;

245 (b) displaying, distributing, possessing for the purpose of distribution, or selling
246 material depicting a child:
247 (i) in the nude, for the purpose of sexual arousal of any person; or
248 (ii) engaging in sexual or simulated sexual conduct; or
249 (c) engaging in any conduct that would constitute an offense under Section 76-5b-201 ,
250 Sexual Exploitation of a Minor, regardless of whether the person who engages in the conduct is
251 actually charged with, or convicted of, the offense.
252 [(41)] (44) "Shelter" means the temporary care of a child in a physically unrestricted
253 facility pending court disposition or transfer to another jurisdiction.
254 [(42)] (45) "State supervision" means a disposition that provides a more intensive level
255 of intervention than standard probation but is less intensive or restrictive than a community
256 placement with the Division of Juvenile Justice Services.
257 [(43)] (46) "Substance abuse" means the misuse or excessive use of alcohol or other
258 drugs or substances.
259 [(44)] (47) "Substantiated" is as defined in Section 62A-4a-101 .
260 [(45)] (48) "Supported" is as defined in Section 62A-4a-101 .
261 [(46)] (49) "Termination of parental rights" means the permanent elimination of all
262 parental rights and duties, including residual parental rights and duties, by court order.
263 [(47)] (50) "Therapist" means:
264 (a) a person employed by a state division or agency for the purpose of conducting
265 psychological treatment and counseling of a minor in its custody; or
266 (b) any other person licensed or approved by the state for the purpose of conducting
267 psychological treatment and counseling.
268 [(48)] (51) "Unsubstantiated" is as defined in Section 62A-4a-101 .
269 [(49)] (52) "Without merit" is as defined in Section 62A-4a-101 .
270 Section 2. Section 78A-6-302 is amended to read:
271 78A-6-302. Court-ordered protective custody of a child following petition filing --
272 Grounds.
273 (1) After a petition has been filed under Section 78A-6-304 , if the child who is the
274 subject of the petition is not in the protective custody of the division, a court may order that the
275 child be removed from the child's home or otherwise taken into protective custody if the court

276 finds, by a preponderance of the evidence, that any one or more of the following circumstances
277 exist:
278 (a) (i) there is an imminent danger to the physical health or safety of the child; and
279 (ii) the child's physical health or safety may not be protected without removing the
280 child from the custody of the child's parent or guardian;
281 (b) (i) a parent or guardian engages in or threatens the child with unreasonable conduct
282 that causes the child to suffer emotional damage; and
283 (ii) there are no reasonable means available by which the child's emotional health may
284 be protected without removing the child from the custody of the child's parent or guardian;
285 (c) the child or another child residing in the same household has been, or is considered
286 to be at substantial risk of being, physically abused, sexually abused, or sexually exploited, by a
287 parent or guardian, a member of the parent's or guardian's household, or other person known to
288 the parent or guardian;
289 (d) the parent or guardian is unwilling to have physical custody of the child;
290 (e) the child is abandoned or left without any provision for the child's support;
291 (f) a parent or guardian who has been incarcerated or institutionalized has not arranged
292 or cannot arrange for safe and appropriate care for the child;
293 (g) (i) a relative or other adult custodian with whom the child is left by the parent or
294 guardian is unwilling or unable to provide care or support for the child;
295 (ii) the whereabouts of the parent or guardian are unknown; and
296 (iii) reasonable efforts to locate the parent or guardian are unsuccessful;
297 (h) the child is in immediate need of medical care;
298 (i) (i) a parent's or guardian's actions, omissions, or habitual action create an
299 environment that poses a threat to the child's health or safety; or
300 (ii) a parent's or guardian's action in leaving a child unattended would reasonably pose
301 a threat to the child's health or safety;
302 (j) the child or another child residing in the same household has been neglected;
303 (k) the child's natural parent:
304 (A) is identified by a law enforcement officer as the primary suspect in an active
305 murder investigation where the alleged victim is the natural parent's cohabitant; or
306 (B) is being prosecuted for or has been convicted of murder or aggravated murder of

307 the natural parent's cohabitant;
308 [(k)] (l) an infant has been abandoned, as defined in Section 78A-6-316 ;
309 [(l)] (m) (i) the parent or guardian, or an adult residing in the same household as the
310 parent or guardian, is charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug
311 Lab Act; and
312 (ii) any clandestine laboratory operation was located in the residence or on the property
313 where the child resided; or
314 [(m)] (n) the child's welfare is otherwise endangered.
315 (2) (a) For purposes of Subsection (1)(a), if a child has previously been adjudicated as
316 abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
317 occurs involving the same substantiated abuser or under similar circumstance as the previous
318 abuse, that fact constitutes prima facie evidence that the child cannot safely remain in the
319 custody of the child's parent.
320 (b) For purposes of Subsection (1)(c):
321 (i) another child residing in the same household may not be removed from the home
322 unless that child is considered to be at substantial risk of being physically abused, sexually
323 abused, or sexually exploited as described in Subsection (1)(c) or Subsection (2)(b)(ii); and
324 (ii) if a parent or guardian has received actual notice that physical abuse, sexual abuse,
325 or sexual exploitation by a person known to the parent has occurred, and there is evidence that
326 the parent or guardian failed to protect the child, after having received the notice, by allowing
327 the child to be in the physical presence of the alleged abuser, that fact constitutes prima facie
328 evidence that the child is at substantial risk of being physically abused, sexually abused, or
329 sexually exploited.
330 (3) In the absence of one of the factors described in Subsection (1), a court may not
331 remove a child from the parent's or guardian's custody on the basis of:
332 (a) educational neglect, truancy, or failure to comply with a court order to attend
333 school;
334 (b) mental illness or poverty of the parent or guardian; or
335 (c) disability of the parent or guardian, as defined in Section 57-21-2 .
336 (4) A child removed from the custody of the child's parent or guardian under this
337 section may not be placed or kept in a secure detention facility pending further court

338 proceedings unless the child is detainable based on guidelines promulgated by the Division of
339 Juvenile Justice Services.
340 (5) This section does not preclude removal of a child from the child's home without a
341 warrant or court order under Section 62A-4a-202.1 .
342 (6) (a) Except as provided in Subsection (6)(b), a court or the Division of Child and
343 Family Services may not remove a child from the custody of the child's parent or guardian on
344 the sole or primary basis that the parent or guardian refuses to consent to:
345 (i) the administration of a psychotropic medication to a child;
346 (ii) a psychiatric, psychological, or behavioral treatment for a child; or
347 (iii) a psychiatric or behavioral health evaluation of a child.
348 (b) Notwithstanding Subsection (6)(a), a court or the Division of Child and Family
349 Services may remove a child under conditions that would otherwise be prohibited under
350 Subsection (6)(a) if failure to take an action described under Subsection (6)(a) would present a
351 serious, imminent risk to the child's physical safety or the physical safety of others.
352 Section 3. Section 78A-6-306 is amended to read:
353 78A-6-306. Shelter hearing.
354 (1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
355 after any one or all of the following occur:
356 (a) removal of the child from the child's home by the division;
357 (b) placement of the child in the protective custody of the division;
358 (c) emergency placement under Subsection 62A-4a-202.1 (4);
359 (d) as an alternative to removal of the child, a parent enters a domestic violence shelter
360 at the request of the division; or
361 (e) a "Motion for Expedited Placement in Temporary Custody" is filed under
362 Subsection 78A-6-106 (4).
363 (2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
364 through (e), the division shall issue a notice that contains all of the following:
365 (a) the name and address of the person to whom the notice is directed;
366 (b) the date, time, and place of the shelter hearing;
367 (c) the name of the child on whose behalf a petition is being brought;
368 (d) a concise statement regarding:

369 (i) the reasons for removal or other action of the division under Subsection (1); and
370 (ii) the allegations and code sections under which the proceeding has been instituted;
371 (e) a statement that the parent or guardian to whom notice is given, and the child, are
372 entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
373 indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
374 provided in accordance with the provisions of Section 78A-6-1111 ; and
375 (f) a statement that the parent or guardian is liable for the cost of support of the child in
376 the protective custody, temporary custody, and custody of the division, and the cost for legal
377 counsel appointed for the parent or guardian under Subsection (2)(e), according to the financial
378 ability of the parent or guardian.
379 (3) The notice described in Subsection (2) shall be personally served as soon as
380 possible, but no later than one business day after removal of the child from the child's home, or
381 the filing of a "Motion for Expedited Placement in Temporary Custody" under Subsection
382 78A-6-106 (4), on:
383 (a) the appropriate guardian ad litem; and
384 (b) both parents and any guardian of the child, unless the parents or guardians cannot
385 be located.
386 (4) The following persons shall be present at the shelter hearing:
387 (a) the child, unless it would be detrimental for the child;
388 (b) the child's parents or guardian, unless the parents or guardian cannot be located, or
389 fail to appear in response to the notice;
390 (c) counsel for the parents, if one is requested;
391 (d) the child's guardian ad litem;
392 (e) the caseworker from the division who is assigned to the case; and
393 (f) the attorney from the attorney general's office who is representing the division.
394 (5) (a) At the shelter hearing, the court shall:
395 (i) provide an opportunity to provide relevant testimony to:
396 (A) the child's parent or guardian, if present; and
397 (B) any other person having relevant knowledge; and
398 (ii) subject to Section 78A-6-305 , provide an opportunity for the child to testify.
399 (b) The court:

400 (i) may consider all relevant evidence, in accordance with the Utah Rules of Juvenile
401 Procedure;
402 (ii) shall hear relevant evidence presented by the child, the child's parent or guardian,
403 the requesting party, or their counsel; and
404 (iii) may in its discretion limit testimony and evidence to only that which goes to the
405 issues of removal and the child's need for continued protection.
406 (6) If the child is in the protective custody of the division, the division shall report to
407 the court:
408 (a) the reason why the child was removed from the parent's or guardian's custody;
409 (b) any services provided to the child and the child's family in an effort to prevent
410 removal;
411 (c) the need, if any, for continued shelter;
412 (d) the available services that could facilitate the return of the child to the custody of
413 the child's parent or guardian; and
414 (e) subject to Subsections 78A-6-307 (18)(c) through (e), whether any relatives of the
415 child or friends of the child's parents may be able and willing to accept temporary placement of
416 the child.
417 (7) The court shall consider all relevant evidence provided by persons or entities
418 authorized to present relevant evidence pursuant to this section.
419 (8) (a) If necessary to protect the child, preserve the rights of a party, or for other good
420 cause shown, the court may grant no more than one continuance, not to exceed five judicial
421 days.
422 (b) A court shall honor, as nearly as practicable, the request by a parent or guardian for
423 a continuance under Subsection (8)(a).
424 (9) (a) If the child is in the protective custody of the division, the court shall order that
425 the child be released from the protective custody of the division unless it finds, by a
426 preponderance of the evidence, that any one of the following exist:
427 (i) subject to Subsection (9)(b)(i), there is a substantial danger to the physical health or
428 safety of the child and the child's physical health or safety may not be protected without
429 removing the child from the custody of the child's parent;
430 (ii) (A) the child is suffering emotional damage; and

431 (B) there are no reasonable means available by which the child's emotional health may
432 be protected without removing the child from the custody of the child's parent;
433 (iii) there is a substantial risk that the child will suffer abuse or neglect if the child is
434 not removed from the custody of the child's parents;
435 (iv) subject to Subsection (9)(b)(ii), the child or a minor residing in the same
436 household has been, or is considered to be at substantial risk of being, physically abused,
437 sexually abused, or sexually exploited by a:
438 (A) parent;
439 (B) member of the parent's household; or
440 (C) person known to the parent;
441 (v) the parent is unwilling to have physical custody of the child;
442 (vi) the child is without any provision for the child's support;
443 (vii) a parent who is incarcerated or institutionalized has not or cannot arrange for safe
444 and appropriate care for the child;
445 (viii) (A) a relative or other adult custodian with whom the child is left by the parent is
446 unwilling or unable to provide care or support for the child;
447 (B) the whereabouts of the parent are unknown; and
448 (C) reasonable efforts to locate the parent are unsuccessful;
449 (ix) the child is in urgent need of medical care;
450 (x) the physical environment or the fact that the child is left unattended beyond a
451 reasonable period of time poses a threat to the child's health or safety;
452 (xi) the child or a minor residing in the same household has been neglected;
453 (xii) the parent, or an adult residing in the same household as the parent, is charged or
454 arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
455 laboratory operation was located in the residence or on the property where the child resided;
456 [or]
457 (xiii) the child's welfare is substantially endangered[.]; or
458 (xiv) the child's natural parent:
459 (A) is identified by a law enforcement officer as the primary suspect in an active
460 murder investigation where the alleged victim is the natural parent's cohabitant; or
461 (B) is being prosecuted for or has been convicted of murder or aggravated murder of

462 the natural parent's cohabitant.
463 (b) (i) Prima facie evidence of the finding described in Subsection (9)(a)(i) is
464 established if:
465 (A) a court previously adjudicated that the child suffered abuse, neglect, or dependency
466 involving the parent; and
467 (B) a subsequent incident of abuse, neglect, or dependency involving the parent occurs.
468 (ii) For purposes of Subsection (9)(a)(iv), if the court finds that the parent knowingly
469 allowed the child to be in the physical care of a person after the parent received actual notice
470 that the person physically abused, sexually abused, or sexually exploited the child, that fact
471 constitutes prima facie evidence that there is a substantial risk that the child will be physically
472 abused, sexually abused, or sexually exploited.
473 (10) (a) (i) The court shall also make a determination on the record as to whether
474 reasonable efforts were made to prevent or eliminate the need for removal of the child from the
475 child's home and whether there are available services that would prevent the need for continued
476 removal.
477 (ii) If the court finds that the child can be safely returned to the custody of the child's
478 parent or guardian through the provision of those services, the court shall place the child with
479 the child's parent or guardian and order that those services be provided by the division.
480 (b) In making the determination described in Subsection (10)(a), and in ordering and
481 providing services, the child's health, safety, and welfare shall be the paramount concern, in
482 accordance with federal law.
483 (11) Where the division's first contact with the family occurred during an emergency
484 situation in which the child could not safely remain at home, the court shall make a finding that
485 any lack of preplacement preventive efforts was appropriate.
486 (12) In cases where actual sexual abuse, sexual exploitation, abandonment, severe
487 abuse, or severe neglect are involved, neither the division nor the court has any duty to make
488 "reasonable efforts" or to, in any other way, attempt to maintain a child in the child's home,
489 return a child to the child's home, provide reunification services, or attempt to rehabilitate the
490 offending parent or parents.
491 (13) The court may not order continued removal of a child solely on the basis of
492 educational neglect as described in Subsection 78A-6-105 (25)(b) truancy, or failure to comply

493 with a court order to attend school.
494 (14) (a) Whenever a court orders continued removal of a child under this section, the
495 court shall state the facts on which that decision is based.
496 (b) If no continued removal is ordered and the child is returned home, the court shall
497 state the facts on which that decision is based.
498 (15) If the court finds that continued removal and temporary custody are necessary for
499 the protection of a child because harm may result to the child if the child were returned home,
500 the court shall order continued removal regardless of:
501 (a) any error in the initial removal of the child;
502 (b) the failure of a party to comply with notice provisions; or
503 (c) any other procedural requirement of this chapter or Title 62A, Chapter 4a, Child
504 and Family Services.
505 Section 4. Section 78A-6-312 is amended to read:
506 78A-6-312. Dispositional hearing -- Reunification services -- Exceptions.
507 (1) The court may:
508 (a) make any of the dispositions described in Section 78A-6-117 ;
509 (b) place the minor in the custody or guardianship of any:
510 (i) individual; or
511 (ii) public or private entity or agency; or
512 (c) order:
513 (i) protective supervision;
514 (ii) family preservation;
515 (iii) subject to Subsections (12)(b) and 78A-6-117 (2)(n)(iii), medical or mental health
516 treatment; or
517 (iv) other services.
518 (2) Whenever the court orders continued removal at the dispositional hearing, and that
519 the minor remain in the custody of the division, the court shall first:
520 (a) establish a primary permanency goal for the minor; and
521 (b) determine whether, in view of the primary permanency goal, reunification services
522 are appropriate for the minor and the minor's family, pursuant to Subsections (20) through (22).
523 (3) Subject to Subsections (6) and (7), if the court determines that reunification

524 services are appropriate for the minor and the minor's family, the court shall provide for
525 reasonable parent-time with the parent or parents from whose custody the minor was removed,
526 unless parent-time is not in the best interest of the minor.
527 (4) In cases where obvious sexual abuse, sexual exploitation, abandonment, severe
528 abuse, or severe neglect are involved, neither the division nor the court has any duty to make
529 "reasonable efforts" or to, in any other way, attempt to provide reunification services, or to
530 attempt to rehabilitate the offending parent or parents.
531 (5) In all cases, the minor's health, safety, and welfare shall be the court's paramount
532 concern in determining whether reasonable efforts to reunify should be made.
533 (6) For purposes of Subsection (3), parent-time is in the best interests of a minor unless
534 the court makes a finding that it is necessary to deny parent-time in order to:
535 (a) protect the physical safety of the minor;
536 (b) protect the life of the minor; or
537 (c) prevent the minor from being traumatized by contact with the parent due to the
538 minor's fear of the parent in light of the nature of the alleged abuse or neglect.
539 (7) Notwithstanding Subsection (3), a court may not deny parent-time based solely on a
540 parent's failure to:
541 (a) prove that the parent has not used legal or illegal substances; or
542 (b) comply with an aspect of the child and family plan that is ordered by the court.
543 (8) (a) In addition to the primary permanency goal, the court shall establish a
544 concurrent permanency goal that shall include:
545 (i) a representative list of the conditions under which the primary permanency goal will
546 be abandoned in favor of the concurrent permanency goal; and
547 (ii) an explanation of the effect of abandoning or modifying the primary permanency
548 goal.
549 (b) In determining the primary permanency goal and concurrent permanency goal, the
550 court shall consider:
551 (i) the preference for kinship placement over nonkinship placement;
552 (ii) the potential for a guardianship placement if the parent-child relationship is legally
553 terminated and no appropriate adoption placement is available; and
554 (iii) the use of an individualized permanency goal, only as a last resort.

555 (9) A permanency hearing shall be conducted in accordance with Subsection
556 78A-6-314 (1)(b) within 30 days after the day on which the dispositional hearing ends if
557 something other than reunification is initially established as a minor's primary permanency
558 goal.
559 (10) (a) The court may amend a minor's primary permanency goal before the
560 establishment of a final permanency plan under Section 78A-6-314 .
561 (b) The court is not limited to the terms of the concurrent permanency goal in the event
562 that the primary permanency goal is abandoned.
563 (c) If, at any time, the court determines that reunification is no longer a minor's primary
564 permanency goal, the court shall conduct a permanency hearing in accordance with Section
565 78A-6-314 on or before the earlier of:
566 (i) 30 days after the day on which the court makes the determination described in this
567 Subsection (10)(c); or
568 (ii) the day on which the provision of reunification services, described in Section
569 78A-6-314 , ends.
570 (11) (a) If the court determines that reunification services are appropriate, it shall order
571 that the division make reasonable efforts to provide services to the minor and the minor's
572 parent for the purpose of facilitating reunification of the family, for a specified period of time.
573 (b) In providing the services described in Subsection (11)(a), the minor's health, safety,
574 and welfare shall be the division's paramount concern, and the court shall so order.
575 (12) (a) The court shall:
576 (i) determine whether the services offered or provided by the division under the child
577 and family plan constitute "reasonable efforts" on the part of the division;
578 (ii) determine and define the responsibilities of the parent under the child and family
579 plan in accordance with Subsection 62A-4a-205 (6)(e); and
580 (iii) identify verbally on the record, or in a written document provided to the parties,
581 the responsibilities described in Subsection (12)(a)(ii), for the purpose of assisting in any future
582 determination regarding the provision of reasonable efforts, in accordance with state and
583 federal law.
584 (b) If the parent is in a substance abuse treatment program, other than a certified drug
585 court program:

586 (i) the court may order the parent to submit to supplementary drug or alcohol testing in
587 addition to the testing recommended by the parent's substance abuse program based on a
588 finding of reasonable suspicion that the parent is abusing drugs or alcohol; and
589 (ii) the court may order the parent to provide the results of drug or alcohol testing
590 recommended by the substance abuse program to the court or division.
591 (13) (a) The time period for reunification services may not exceed 12 months from the
592 date that the minor was initially removed from the minor's home, unless the time period is
593 extended under Subsection 78A-6-314 (8).
594 (b) Nothing in this section may be construed to entitle any parent to an entire 12
595 months of reunification services.
596 (14) (a) If reunification services are ordered, the court may terminate those services at
597 any time.
598 (b) If, at any time, continuation of reasonable efforts to reunify a minor is determined
599 to be inconsistent with the final permanency plan for the minor established pursuant to Section
600 78A-6-314 , then measures shall be taken, in a timely manner, to:
601 (i) place the minor in accordance with the permanency plan; and
602 (ii) complete whatever steps are necessary to finalize the permanent placement of the
603 minor.
604 (15) Any physical custody of the minor by the parent or a relative during the period
605 described in Subsections (11) through (14) does not interrupt the running of the period.
606 (16) (a) If reunification services are ordered, a permanency hearing shall be conducted
607 by the court in accordance with Section 78A-6-314 at the expiration of the time period for
608 reunification services.
609 (b) The permanency hearing shall be held no later than 12 months after the original
610 removal of the minor.
611 (c) If reunification services are not ordered, a permanency hearing shall be conducted
612 within 30 days, in accordance with Section 78A-6-314 .
613 (17) With regard to a minor in the custody of the division whose parent or parents are
614 ordered to receive reunification services but who have abandoned that minor for a period of six
615 months from the date that reunification services were ordered:
616 (a) the court shall terminate reunification services; and

617 (b) the division shall petition the court for termination of parental rights.
618 (18) When a court conducts a permanency hearing for a minor under Section
619 78A-6-314 , the court shall attempt to keep the minor's sibling group together if keeping the
620 sibling group together is:
621 (a) practicable; and
622 (b) in accordance with the best interest of the minor.
623 (19) (a) Because of the state's interest in and responsibility to protect and provide
624 permanency for minors who are abused, neglected, or dependent, the Legislature finds that a
625 parent's interest in receiving reunification services is limited.
626 (b) The court may determine that:
627 (i) efforts to reunify a minor with the minor's family are not reasonable or appropriate,
628 based on the individual circumstances; and
629 (ii) reunification services should not be provided.
630 (c) In determining "reasonable efforts" to be made with respect to a minor, and in
631 making "reasonable efforts," the minor's health, safety, and welfare shall be the paramount
632 concern.
633 (20) There is a presumption that reunification services should not be provided to a
634 parent if the court finds, by clear and convincing evidence, that any of the following
635 circumstances exist:
636 (a) the whereabouts of the parents are unknown, based upon a verified affidavit
637 indicating that a reasonably diligent search has failed to locate the parent;
638 (b) subject to Subsection (21)(a), the parent is suffering from a mental illness of such
639 magnitude that it renders the parent incapable of utilizing reunification services;
640 (c) the minor was previously adjudicated as an abused child due to physical abuse,
641 sexual abuse, or sexual exploitation, and following the adjudication the minor:
642 (i) was removed from the custody of the minor's parent;
643 (ii) was subsequently returned to the custody of the parent; and
644 (iii) is being removed due to additional physical abuse, sexual abuse, or sexual
645 exploitation;
646 (d) the parent:
647 (i) caused the death of another minor through abuse or neglect;

648 (ii) committed, aided, abetted, attempted, conspired, or solicited to commit:
649 (A) murder or manslaughter of a child; or
650 (B) child abuse homicide;
651 (iii) committed sexual abuse against the child; [or]
652 (iv) is a registered sex offender or required to register as a sex offender; or
653 (v) (A) is identified by a law enforcement officer as the primary suspect in an active
654 murder investigation where the alleged victim is the natural parent's cohabitant; or
655 (B) is being prosecuted for or has been convicted of murder or aggravated murder of
656 the natural parent's cohabitant;
657 (e) the minor suffered severe abuse by the parent or by any person known by the
658 parent, if the parent knew or reasonably should have known that the person was abusing the
659 minor;
660 (f) the minor is adjudicated an abused child as a result of severe abuse by the parent,
661 and the court finds that it would not benefit the minor to pursue reunification services with the
662 offending parent;
663 (g) the parent's rights are terminated with regard to any other minor;
664 (h) the minor was removed from the minor's home on at least two previous occasions
665 and reunification services were offered or provided to the family at those times;
666 (i) the parent has abandoned the minor for a period of six months or longer;
667 (j) the parent permitted the child to reside, on a permanent or temporary basis, at a
668 location where the parent knew or should have known that a clandestine laboratory operation
669 was located;
670 (k) except as provided in Subsection (21)(b), with respect to a parent who is the child's
671 birth mother, the child has fetal alcohol syndrome, fetal alcohol spectrum disorder, or was
672 exposed to an illegal or prescription drug that was abused by the child's mother while the child
673 was in utero, if the child was taken into division custody for that reason, unless the mother
674 agrees to enroll in, is currently enrolled in, or has recently and successfully completed a
675 substance abuse treatment program approved by the department; or
676 (l) any other circumstance that the court determines should preclude reunification
677 efforts or services.
678 (21) (a) The finding under Subsection (20)(b) shall be based on competent evidence

679 from at least two medical or mental health professionals, who are not associates, establishing
680 that, even with the provision of services, the parent is not likely to be capable of adequately
681 caring for the minor within 12 months after the day on which the court finding is made.
682 (b) A judge may disregard the provisions of Subsection (20)(k) if the court finds, under
683 the circumstances of the case, that the substance abuse treatment described in Subsection
684 (20)(k) is not warranted.
685 (22) In determining whether reunification services are appropriate, the court shall take
686 into consideration:
687 (a) failure of the parent to respond to previous services or comply with a previous child
688 and family plan;
689 (b) the fact that the minor was abused while the parent was under the influence of
690 drugs or alcohol;
691 (c) any history of violent behavior directed at the child or an immediate family
692 member;
693 (d) whether a parent continues to live with an individual who abused the minor;
694 (e) any patterns of the parent's behavior that have exposed the minor to repeated abuse;
695 (f) testimony by a competent professional that the parent's behavior is unlikely to be
696 successful; and
697 (g) whether the parent has expressed an interest in reunification with the minor.
698 (23) (a) If reunification services are not ordered pursuant to Subsections (19) through
699 (21), and the whereabouts of a parent become known within six months after the day on which
700 the out-of-home placement of the minor is made, the court may order the division to provide
701 reunification services.
702 (b) The time limits described in Subsections (2) through (18) are not tolled by the
703 parent's absence.
704 (24) (a) If a parent is incarcerated or institutionalized, the court shall order reasonable
705 services unless it determines that those services would be detrimental to the minor.
706 (b) In making the determination described in Subsection (24)(a), the court shall
707 consider:
708 (i) the age of the minor;
709 (ii) the degree of parent-child bonding;

710 (iii) the length of the sentence;
711 (iv) the nature of the treatment;
712 (v) the nature of the crime or illness;
713 (vi) the degree of detriment to the minor if services are not offered;
714 (vii) for a minor 10 years of age or older, the minor's attitude toward the
715 implementation of family reunification services; and
716 (viii) any other appropriate factors.
717 (c) Reunification services for an incarcerated parent are subject to the time limitations
718 imposed in Subsections (2) through (18).
719 (d) Reunification services for an institutionalized parent are subject to the time
720 limitations imposed in Subsections (2) through (18), unless the court determines that continued
721 reunification services would be in the minor's best interest.
722 (25) If, pursuant to Subsections (20)(b) through (l), the court does not order
723 reunification services, a permanency hearing shall be conducted within 30 days, in accordance
724 with Section 78A-6-314 .
725 Section 5. Section 78A-6-314 is amended to read:
726 78A-6-314. Permanency hearing -- Final plan -- Petition for termination of
727 parental rights filed -- Hearing on termination of parental rights.
728 (1) (a) When reunification services have been ordered in accordance with Section
729 78A-6-312 , with regard to a minor who is in the custody of the Division of Child and Family
730 Services, a permanency hearing shall be held by the court no later than 12 months after the day
731 on which the minor was initially removed from the minor's home.
732 (b) If reunification services were not ordered at the dispositional hearing, a permanency
733 hearing shall be held within 30 days after the day on which the dispositional hearing ends.
734 (2) (a) If reunification services were ordered by the court in accordance with Section
735 78A-6-312 , the court shall, at the permanency hearing, determine, consistent with Subsection
736 (3), whether the minor may safely be returned to the custody of the minor's parent.
737 (b) If the court finds, by a preponderance of the evidence, that return of the minor to
738 the minor's parent would create a substantial risk of detriment to the minor's physical or
739 emotional well-being, the minor may not be returned to the custody of the minor's parent.
740 (c) Prima facie evidence that return of the minor to a parent or guardian would create a

741 substantial risk of detriment to the minor is established if:
742 (i) the parent or guardian fails to:
743 [(i)] (A) participate in a court approved child and family plan;
744 [(ii)] (B) comply with a court approved child and family plan in whole or in part; or
745 [(iii)] (C) meet the goals of a court approved child and family plan[.]; or
746 (ii) the child's natural parent:
747 (A) is identified by a law enforcement officer as the primary suspect in an active
748 murder investigation where the alleged victim is the natural parent's cohabitant; or
749 (B) is being prosecuted for or has been convicted of murder or aggravated murder of
750 the natural parent's cohabitant.
751 (3) In making a determination under Subsection (2)(a), the court shall review and
752 consider:
753 (a) the report prepared by the Division of Child and Family Services;
754 (b) any admissible evidence offered by the minor's guardian ad litem;
755 (c) any report submitted by the division under Subsection 78A-6-315 (3)(a)(i);
756 (d) any evidence regarding the efforts or progress demonstrated by the parent; and
757 (e) the extent to which the parent cooperated and utilized the services provided.
758 (4) With regard to a case where reunification services were ordered by the court, if a
759 minor is not returned to the minor's parent or guardian at the permanency hearing, the court
760 shall, unless the time for the provision of reunification services is extended under Subsection
761 (8):
762 (a) order termination of reunification services to the parent;
763 (b) make a final determination regarding whether termination of parental rights,
764 adoption, or permanent custody and guardianship is the most appropriate final plan for the
765 minor, taking into account the minor's primary permanency goal established by the court
766 pursuant to Section 78A-6-312 ; and
767 (c) establish a concurrent plan that identifies the second most appropriate final plan for
768 the minor.
769 (5) If the Division of Child and Family Services documents to the court that there is a
770 compelling reason that adoption, reunification, guardianship, and a placement described in
771 Subsection 78A-6-306 (6)(e) are not in the minor's best interest, the court may order another

772 planned permanent living arrangement, in accordance with federal law.
773 (6) If the minor clearly desires contact with the parent, the court shall take the minor's
774 desire into consideration in determining the final plan.
775 (7) Except as provided in Subsection (8), the court may not extend reunification
776 services beyond 12 months after the day on which the minor was initially removed from the
777 minor's home, in accordance with the provisions of Section 78A-6-312 .
778 (8) (a) Subject to Subsection (8)(b), the court may extend reunification services for no
779 more than 90 days if the court finds, beyond a preponderance of the evidence, that:
780 (i) there has been substantial compliance with the child and family plan;
781 (ii) reunification is probable within that 90-day period; and
782 (iii) the extension is in the best interest of the minor.
783 (b) (i) Except as provided in Subsection (8)(c), the court may not extend any
784 reunification services beyond 15 months after the day on which the minor was initially
785 removed from the minor's home.
786 (ii) Delay or failure of a parent to establish paternity or seek custody does not provide a
787 basis for the court to extend services for that parent beyond the 12-month period described in
788 Subsection (7).
789 (c) In accordance with Subsection (8)(d), the court may extend reunification services
790 for one additional 90-day period, beyond the 90-day period described in Subsection (8)(a), if:
791 (i) the court finds, by clear and convincing evidence, that:
792 (A) the parent has substantially complied with the child and family plan;
793 (B) it is likely that reunification will occur within the additional 90-day period; and
794 (C) the extension is in the best interest of the child;
795 (ii) the court specifies the facts upon which the findings described in Subsection
796 (8)(c)(i) are based; and
797 (iii) the court specifies the time period in which it is likely that reunification will occur.
798 (d) A court may not extend the time period for reunification services without
799 complying with the requirements of this Subsection (8) before the extension.
800 (e) In determining whether to extend reunification services for a minor, a court shall
801 take into consideration the status of the minor siblings of the minor.
802 (9) The court may, in its discretion:

803 (a) enter any additional order that it determines to be in the best interest of the minor,
804 so long as that order does not conflict with the requirements and provisions of Subsections (4)
805 through (8); or
806 (b) order the division to provide protective supervision or other services to a minor and
807 the minor's family after the division's custody of a minor has been terminated.
808 (10) If the final plan for the minor is to proceed toward termination of parental rights,
809 the petition for termination of parental rights shall be filed, and a pretrial held, within 45
810 calendar days after the permanency hearing.
811 (11) (a) Any party to an action may, at any time, petition the court for an expedited
812 permanency hearing on the basis that continuation of reunification efforts are inconsistent with
813 the permanency needs of the minor.
814 (b) If the court so determines, it shall order, in accordance with federal law, that:
815 (i) the minor be placed in accordance with the permanency plan; and
816 (ii) whatever steps are necessary to finalize the permanent placement of the minor be
817 completed as quickly as possible.
818 (12) Nothing in this section may be construed to:
819 (a) entitle any parent to reunification services for any specified period of time;
820 (b) limit a court's ability to terminate reunification services at any time prior to a
821 permanency hearing; or
822 (c) limit or prohibit the filing of a petition for termination of parental rights by any
823 party, or a hearing on termination of parental rights, at any time prior to a permanency hearing.
824 (13) (a) Subject to Subsection (13)(b), if a petition for termination of parental rights is
825 filed prior to the date scheduled for a permanency hearing, the court may consolidate the
826 hearing on termination of parental rights with the permanency hearing.
827 (b) For purposes of Subsection (13)(a), if the court consolidates the hearing on
828 termination of parental rights with the permanency hearing:
829 (i) the court shall first make a finding regarding whether reasonable efforts have been
830 made by the Division of Child and Family Services to finalize the permanency goal for the
831 minor; and
832 (ii) any reunification services shall be terminated in accordance with the time lines
833 described in Section 78A-6-312 .

834 (c) A decision on a petition for termination of parental rights shall be made within 18
835 months from the day on which the minor is removed from the minor's home.
836 (14) If a court determines that a child will not be returned to a parent of the child, the
837 court shall consider appropriate placement options inside and outside of the state.




Legislative Review Note
as of 1-28-14 12:02 PM

Office of Legislative Research and General Counsel