H.B. 109 Enrolled

ADOPTION OF CHILDREN IN DIVISION OF
CHILD AND FAMILY SERVICES CUSTODY
1997 GENERAL SESSION
STATE OF UTAH
Sponsor: Nora B. Stephens
AN ACT RELATING TO THE DIVISION OF CHILD AND FAMILY SERVICES;
PROVIDING FOR EXPEDITED PROCESSES; REQUIRING THE DIVISION TO
PROVIDE SUPPORT AND COUNSELING TO ADOPTIVE PARENTS; REQUIRING
TRAINING AND COOPERATION OF PRIVATE ADOPTION AGENCY
PERSONNEL; LIMITING REUNIFICATION SERVICES IN CASES OF
ABANDONMENT; CLARIFYING AND EXPANDING RESPONSIBILITIES OF DCFS
AND PRIVATE AGENCIES TO EXPEDITE ADOPTION; AND REQUIRING COURT
CONSIDERATION OF CHILD'S RELATIONSHIP WITH FOSTER PARENTS WHO
PETITION FOR ADOPTION.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
62A-4a-205.6, as enacted by Chapter 314, Laws of Utah 1996
62A-4a-604, as renumbered and amended by Chapter 260, Laws of Utah 1994
62A-4a-607, as enacted by Chapter 314, Laws of Utah 1996
78-3a-307, as last amended by Chapter 318, Laws of Utah 1996
78-3a-311, as last amended by Chapters 1, 314 and 318, Laws of Utah 1996
78-3a-404, as renumbered and amended by Chapter 260, Laws of Utah 1994
ENACTS:
78-30-1.6, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 62A-4a-205.6 is amended to read:
62A-4a-205.6. Adoptive placement time frame -- Contracting with agencies.
(1) With regard to children who have a permanency goal of adoption and who are eligible
for adoption, the division shall make intensive efforts to place the child in an adoptive home within

30 days after the court has freed the child for adoption in accordance with Subsection 78-3a-312(3).
(2) If within the time period described in Subsection (1) the division is unable to locate a
suitable adoptive home, it shall contract with licensed child placing agencies to search for an
appropriate adoptive home for the child, and to place the child for adoption. The division shall
comply with the requirements of Section 62A-4a-607 and contract with a variety of child placing
agencies licensed [pursuant to] under Part 6.
(3) The time period described in Subsection (1) does not apply with regard to children who
the division has determined to have special needs or circumstances [making] that have proven to
make the child hard to place for adoption. That determination, and the reasons for that
determination, shall be made a part of the child's record. For purposes of this subsection only
"special needs" does not include sibling groups, minority children, children with medical or
emotional conditions that are manageable with ongoing state or federal subsidies, or school-age
children. Nothing in this section may be construed to affect or limit the definition of special needs
children for any other purpose of the division.
(4) The division shall ensure that children who are adopted and were previously in its
custody, continue to receive the medical and mental health coverage that they are entitled to under
state and federal law.
Section 2. Section 62A-4a-604 is amended to read:
62A-4a-604. Rulemaking authority.
(1) The division shall promulgate rules regarding:
(a) the manner of organization, administration, and financing of child placing agencies;
(b) standards for the employment and performance of child placing agency employees;
(c) standards and curriculum for the training and continuing education of child placing
agency employees regarding the special and ongoing needs of children in the custody of the division
who may be eligible for adoption, equipping those agency employees to educate and support
potential adoptive parents in order for placements of those children to occur and continue
successfully;
[(c)] (d) records and reports to be made and kept by child placing agencies;

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[(d)] (e) standards of practice to be followed by child placing agencies;
[(e)] (f) the use of homes to receive and care for children received by child placing agencies;
and
[(f)] (g) any other matter deemed necessary to assure the competency and suitability of child
placing agencies for the placement of children.
(2) Rules for child placing agencies shall be issued, amended, or repealed in accordance with
Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
(3) Any interested person may petition to the division for the issuance, amendment, or repeal
of a rule.
Section 3. Section 62A-4a-607 is amended to read:
62A-4a-607. Promotion of adoption -- Agency notification of potential adoptive parents
-- DCFS utilization of those parents.
(1) The division and all agencies licensed under this part shall promote adoption when that
is a possible and appropriate alternative for a child. Specifically, in accordance with Section
62A-4a-205.6, the division shall actively promote the adoption of all children in its custody who
have a permanency goal of adoption and who are eligible for adoption. The division shall obtain or
conduct research of prior adoptive families to determine what families may do to be successful with
their adoptive children and shall make this research available to potential adoptive parents.
(2) (a) On or before July 1, 1997, each agency licensed under this part shall provide all
potential adoptive parents who have applied for adoption with that agency with information
regarding all children in the custody of the division who have a permanency goal of adoption and
who are eligible for adoption. That notification shall include information regarding adoption
subsidies, ongoing medical and mental health coverage for the adopted child, training for adoptive
parents, and continued support for adoptive parents pursuant to Section 62A-4a-205.6.
(b) The notification and information provided pursuant to Subsection (2)(a) shall include a
time-limited request for permission from the potential adoptive parents to provide the division with
their names. With regard to those parents who grant permission, the agency shall provide the
division with those names within ten calendar days of receiving permission. Upon receipt of those

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names, the division shall consider the suitability of those persons as potential adoptive parents for
children in the custody of the division, provide the agency with the names and complete case
histories of appropriate children, and provide the training and support described in Subsection
62A-4a-205.6(4).
Section 4. Section 78-3a-307 is amended to read:
78-3a-307. Shelter hearing -- Placement with a noncustodial parent or relative.
(1) (a) When, at the time of the shelter hearing, the court orders that a child be removed from
the custody of his parent in accordance with the requirements of Section 78-3a-306, the court shall
first determine whether there is another natural parent, with whom the child was not residing at the
time the events or conditions that brought him within the court's jurisdiction occurred, who desires
to assume custody of the child. If that parent requests custody, the court shall place the minor with
that parent unless it finds that the placement would be unsafe or otherwise detrimental to the child.
(b) (i) The court shall make a specific finding regarding the fitness of that parent to assume
custody, and the safety and appropriateness of the placement.
(ii) The court may order the Division of Child and Family Services to conduct an
investigation regarding the safety and appropriateness of the placement.
(iii) If the court orders an investigation by the division, the division shall, at a minimum,
visit the home, perform criminal background checks in accordance with Sections 78-3a-307.1 and
62A-4a-202.4, and check the division's management information system for any previous reports
of abuse or neglect received by the division regarding the parent at issue.
(iv) The division shall report its findings in writing to the court.
(v) The court may place the child in the temporary custody of the division, pending its
determination regarding that placement.
(2) If the court orders placement with a parent under Subsection (1), it may order that the
parent assume custody subject to the supervision of the court, and order that services be provided
to the parent from whose custody the child was removed, the parent who has assumed custody, or
both. The court may also provide for reasonable visitation with the parent from whose custody the
child was removed, if that is in the best interest of the child. The court's order shall be periodically

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reviewed to determine whether:
(a) placement with the parent continues to be in the child's best interest;
(b) the child should be returned to the original custodial parent;
(c) the child should be placed with a relative, pursuant to Subsection [(4)] (5); or
(d) the child should be placed in the custody of the division.
(3) The time periods described in Section 78-3a-311 with regard to reunification apply to
children placed with a previously noncustodial parent in accordance with Subsection (1).
(4) Legal custody of the child is not affected by an order entered under Subsection (1) or (2).
In order to affect a previous court order regarding legal custody, the party must petition that court
for modification of the order.
(5) (a) If, at the time of the shelter hearing, a child is removed from the custody of his parent
and is not placed in the custody of his other parent, the court shall, at that time, determine whether
there is a relative who is able and willing to care for the child. The court may order the Division of
Child and Family Services to conduct a reasonable search to determine whether there are relatives
of the child who are willing and appropriate, in accordance with the requirements of this section, for
placement of the child. The child may be placed in the temporary custody of the division pending
that determination. This section may not be construed as a guarantee that an identified relative will
receive custody of the child. However, preferential consideration may be given to a relative's request
for placement of the child, if it is in the best interest of the child, and the provisions of this section
are satisfied.
(b) If a willing relative is identified pursuant to Subsection (a), the court shall make a
specific finding regarding the fitness of that relative to assume custody, and the safety and
appropriateness of placement with that relative. The court may order the Division of Child and
Family Services to conduct an investigation regarding the safety and appropriateness of the
placement. The division shall conduct criminal background checks in accordance with Sections
78-3a-307.1 and 62A-4a-202.4, report its findings in writing to the court, and provide sufficient
information so that the court may determine whether:
(i) the relative has any history of abusive or neglectful behavior toward other children that

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may indicate or present a danger to this child;
(ii) the child is comfortable with the relative;
(iii) the relative recognizes the parent's history of abuse and is determined to protect the
child;
(iv) the relative is strong enough to resist inappropriate requests by the parent for access to
the child, in accordance with court orders;
(v) the relative is committed to caring for the child as long as necessary; and
(vi) the relative can provide a secure and stable environment for the child.
(c) The court may place the child in the temporary custody of the division, pending the
division's investigation pursuant to Subsection (b), and the court's determination regarding that
placement. The court shall ultimately base its determination regarding placement with a relative on
the best interest of the child.
(d) For purposes of this section, "relative" means an adult who is a grandparent, aunt, uncle,
or sibling of the child.
(6) When the court vests physical custody of a child with a relative pursuant to Subsection
[(4)] (5), it shall order that the relative assume custody subject to the continuing supervision of the
court, and shall order that any necessary services be provided to the minor and the relative. That
placement shall be periodically reviewed by the court to determine whether:
(a) placement with the relative continues to be in the child's best interest;
(b) the child should be returned home; or
(c) the child should be placed in the custody of the division.
(7) (a) When the court vests custody of a child with another parent or relative pursuant to
this section, the child is not within the temporary custody or custody of the Division of Child and
Family Services. The child, any parent affected by this section, and any relative with whom the
child is placed are under the continuing jurisdiction of the court. The court may enter any order that
it deems necessary for the protection and best interest of the child. The time periods described in
Section 78-3a-311, with regard to reunification, apply to children placed with a relative pursuant to
Subsection [(4)] (5).

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(b) When the court orders that a child be removed from the custody of his parent and does
not vest custody in another parent or relative under this section, the court shall order that the child
be placed in the temporary custody of the Division of Child and Family Services, to proceed to
adjudication and disposition and to be provided with care and services in accordance with this
chapter and Title 62A, Chapter 4a, Child and Family Services.
(8) (a) Any preferential consideration that a relative may be initially granted pursuant to
Subsection [(4)](5) expires 30 days from the date of the shelter hearing. After that time period has
expired, a relative who has not obtained custody or asserted an interest in a child, may not be granted
preferential consideration by the division or the court.
(b) When a period of 30 days from the shelter hearing has expired, the preferential
consideration which may initially be granted to a parent in accordance with Subsection (1), is
limited. After that time the court shall base its custody decision on the best interest of the child. The
court shall take into consideration:
(i) the extent of the parent's relationship with the child;
(ii) whether the parent had actual knowledge of the child's removal from the other parent's
custody;
(iii) whether, in the past, the parent has participated in raising the child by taking
responsibility for the child, maintaining a relationship with the child, and financially supporting the
child in accordance with his abilities; and
(iv) the nature and extent of the child's relationships and well-being in his current placement.
Section 5. Section 78-3a-311 is amended to read:
78-3a-311. Dispositional hearing -- Child in custody of Division of Child and Family
Services -- Order for reunification services -- Exceptions.
(1) The court may make any of the dispositions described in Section [78-3a-516] 78-3a-118,
place the child in the custody or guardianship of any individual or public or private entity or agency,
order protective supervision, family preservation, medical or mental health treatment, or other
services.
(2) (a) Except as provided in Subsection (3), whenever the court orders continued removal

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at the dispositional hearing, and that the minor remain in the custody of the Division of Child and
Family Services, it shall order that the division make reasonable efforts to provide services to the
minor and his parent for the purpose of facilitating reunification of the family, within a maximum
time period not to exceed 12 months from the date that the child was initially removed from his
home by the division.
(b) Any physical custody of the minor by the parent during the period described in
Subsection (a) does not interrupt the running of the period.
(c) At the expiration of the 12-month period described in Subsection (a), a dispositional
review hearing shall be conducted by the court in accordance with Section 78-3a-312. If at that time
the child cannot be safely returned to the care and custody of his parent without court supervision,
a permanency plan for the child shall be finalized. If the child clearly desires contact with the parent,
the court shall take the child's desire into consideration in determining the permanency plan.
(d) With regard to a child who is two years of age or younger at the time the court orders
reunification services, the court [may] shall order the discontinuance of those services after six
months if the parent or parents have not made substantial efforts to comply with the treatment plan.
The burden is upon the parents, and the division if it supports continued reunification services, to
show that the parents have made substantial efforts to comply with the plan during the first six
months of reunification services.
(e) With regard to a child in the custody of the division whose parent or parents have been
ordered to receive reunification services but who have abandoned that child for a period of six
months since the date that reunification services were ordered, the court shall terminate reunification
services, and the division shall petition the court for termination of parental rights.
(3) Because of the state's interest in and responsibility to protect and provide permanency
for children who are abused, neglected, or dependent, the Legislature finds that a parent's interest
in receiving reunification services is limited. The court may, under any circumstances, determine
that efforts to reunify a child with his family are not reasonable, based on the individual
circumstances, and that reunification services need not be provided. In any case, there is a
presumption that reunification services should not be provided to a parent if the court finds, by clear

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and convincing evidence, that any of the following circumstances exist:
(a) the whereabouts of the parents are unknown, based upon a verified affidavit indicating
that a reasonably diligent search has failed to locate the parent;
(b) the parent is suffering from a mental illness of such magnitude that it renders him
incapable of utilizing those services; that finding shall be based on competent evidence from mental
health professionals establishing that, even with the provision of services, the parent is unlikely to
be capable of adequately caring for the child within 12 months;
(c) the minor has been previously adjudicated as an abused child due to physical or sexual
abuse, that following the adjudication the child was removed from the custody of his parent, was
subsequently returned to the custody of that parent, and the minor is being removed due to additional
physical or sexual abuse;
(d) the parent has been convicted of causing the death of another child through abuse or
neglect;
(e) the minor has suffered severe abuse by the parent or by any person known by the parent,
if the parent knew or reasonably should have known that the person was abusing the minor;
(f) the minor has been adjudicated an abused child as a result of severe abuse by the parent,
and the court finds that it would not benefit the child to pursue reunification services with the
offending parent;
(g) the parent's rights have been terminated with regard to any other child;
(h) the child has been removed from his home on at least two previous occasions and
reunification services were offered or provided to the family at those times; [or]
(i) the parent has abandoned the child for a period of six months or longer; or
[(i)] (j) any other circumstance that the court determines should preclude reunification efforts
or services.
(4) (a) Failure of the parent to respond to previous services or comply with any previous
treatment plan, the fact that the child was abused while the parent was under the influence of drugs
or alcohol, a past history of violent behavior, whether a parent continues to live with an individual
who abused the child, any patterns of the parent's behavior that have exposed the child to repeated

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abuse, or testimony by a competent professional that the parent's behavior is unlikely to be
successful, are relevant factors to consider in determining whether reunification services should be
ordered.
(b) The court shall also consider whether the parent has expressed an interest in reunification
with the child, in determining whether to order that reunification services be provided.
(5) If reunification services are not ordered pursuant to Subsection (3)(a), and the
whereabouts of a parent become known within six months of the out-of-home placement of the
minor, the court may order the division to provide reunification services. The time limits described
in Subsection (2), however, are not tolled by the parent's absence.
(6) If a parent is incarcerated or institutionalized, the court shall order reasonable services
unless it determines that those services would be detrimental to the minor. In determining detriment,
the court shall consider the age of the child, the degree of parent-child bonding, the length of the
sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the
child if services are not offered and, for minors ten years of age or older, the minor's attitude toward
the implementation of family reunification services, and any other appropriate factors. Reunification
services for an incarcerated or institutionalized parent are subject to the 12-month limitation imposed
in Subsection (2) unless the court determines that continued reunification services would be in the
child's best interest.
(7) If, pursuant to Subsection (3)(b), (c), (d), (e), (f), (g), (h), [or] (i), or (j) the court does not
order reunification services, a hearing shall be conducted within 120 days for establishment of a
permanency plan for the child, in accordance with Subsection 78-3a-312(3).
Section 6. Section 78-3a-404 is amended to read:
78-3a-404. Petition -- Who may file.
(1) (a) Any interested party may file a petition for termination of the parent-child
relationship with regard to a child.
(b) A child's foster parent may file a petition for termination of parental rights so long as that
foster parent intends to pursue adoption [and has had physical custody of the child for one year or
longer]. A foster parent does not lose standing to file a petition under this section solely because the

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division removes the child from that home.
(2) The attorney general shall file a petition for termination of parental rights under this part
on behalf of the division.
Section 7. Section 78-30-1.6 is enacted to read:
78-30-1.6. Children in the custody of the Division of Child and Family Services --
Consideration of child's relationship with foster parents who petition for adoption.
In assessing the best interest of a child in the custody of the Division of Child and Family
Services whose foster parents have petitioned for adoption, the court shall give special consideration
to the relationship of the child with his foster parents, if the child has been in that home for a period
of six months or longer.

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