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6 AN ACT RELATING TO THE DIVISION OF CHILD AND FAMILY SERVICES;
7 PROVIDING FOR EXPEDITED PROCESSES; REQUIRING THE DIVISION TO PROVIDE
8 ONGOING SUPPORT AND COUNSELING TO ADOPTIVE PARENTS; REQUIRING
9 TRAINING AND COOPERATION OF PRIVATE ADOPTION AGENCY PERSONNEL;
10 LIMITING REUNIFICATION SERVICES IN CASES OF ABANDONMENT; CLARIFYING
11 AND EXPANDING RESPONSIBILITIES OF DCFS AND PRIVATE AGENCIES TO
12 EXPEDITE ADOPTION; AND REQUIRING COURT CONSIDERATION OF CHILD'S
13 RELATIONSHIP WITH FOSTER PARENTS WHO PETITION FOR ADOPTION.
14 This act affects sections of Utah Code Annotated 1953 as follows:
16 62A-4a-205.6, as enacted by Chapter 314, Laws of Utah 1996
17 62A-4a-604, as renumbered and amended by Chapter 260, Laws of Utah 1994
18 62A-4a-607, as enacted by Chapter 314, Laws of Utah 1996
19 78-3a-307, as last amended by Chapter 318, Laws of Utah 1996
20 78-3a-311, as last amended by Chapters 1, 314 and 318, Laws of Utah 1996
21 78-3a-404, as renumbered and amended by Chapter 260, Laws of Utah 1994
23 78-30-1.6, Utah Code Annotated 1953
24 Be it enacted by the Legislature of the state of Utah:
25 Section 1. Section 62A-4a-205.6 is amended to read:
26 62A-4a-205.6. Adoptive placement time frame -- Contracting with agencies --
27 Ongoing services to adoptive families.
1 (1) With regard to children who have a permanency goal of adoption and who are eligible
2 for adoption, the division shall make intensive efforts to place the child in an adoptive home within
3 30 days after the court has freed the child for adoption in accordance with Subsection
5 (2) If within the time period described in Subsection (1) the division is unable to locate
6 a suitable adoptive home, it shall contract with licensed child placing agencies to search for an
7 appropriate adoptive home for the child, and to place the child for adoption. The division shall
8 comply with the requirements of Section 62A-4a-607 and contract with a variety of child placing
9 agencies licensed [
10 (3) The time period described in Subsection (1) does not apply with regard to children who
11 the division has determined to have special needs or circumstances [
12 make the child hard to place for adoption. That determination, and the reasons for that
13 determination, shall be made a part of the child's record. For purposes of this subsection only
14 "special needs" does not include sibling groups, minority children, children with medical or
15 emotional conditions that are manageable with ongoing state or federal subsidies, or school-age
16 children. Nothing in this section may be construed to affect or limit the definition of special needs
17 children for any other purpose of the division.
18 (4) The division shall ensure that children who are adopted and were previously in its
19 custody, continue to receive the medical and mental health coverage that they are entitled to under
20 state and federal law, and shall provide intensive initial training and support to potential adoptive
21 parents, and ongoing support and individual or family counseling to adoptive parents and their
22 children, as needed, until the adopted child reaches 21 years of age.
23 Section 2. Section 62A-4a-604 is amended to read:
24 62A-4a-604. Rulemaking authority.
25 (1) The division shall promulgate rules regarding:
26 (a) the manner of organization, administration, and financing of child placing agencies;
27 (b) standards for the employment and performance of child placing agency employees;
28 (c) standards and curriculum for the training and continuing education of child placing
29 agency employees regarding the special and ongoing needs of children in the custody of the
30 division who may be eligible for adoption, equipping those agency employees to educate and
31 support potential adoptive parents in order for placements of those children to occur and continue
5 agencies; and
7 child placing agencies for the placement of children.
8 (2) Rules for child placing agencies shall be issued, amended, or repealed in accordance
9 with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
10 (3) Any interested person may petition to the division for the issuance, amendment, or
11 repeal of a rule.
12 Section 3. Section 62A-4a-607 is amended to read:
13 62A-4a-607. Promotion of adoption -- Agency notification of potential adoptive
14 parents -- DCFS utilization and training of those parents.
15 (1) The division and all agencies licensed under this part shall promote adoption when that
16 is a possible and appropriate alternative for a child. Specifically, in accordance with Section
17 62A-4a-205.6, the division shall actively promote the adoption of all children in its custody who
18 have a permanency goal of adoption and who are eligible for adoption. The division shall obtain
19 or conduct research of prior adoptive families to determine what families may do to be successful
20 with their adoptive children and shall make this research available to potential adoptive parents.
21 (2) (a) On or before July 1, 1997, each agency licensed under this part shall provide all
22 potential adoptive parents who have applied for adoption with that agency with information
23 regarding all children in the custody of the division who have a permanency goal of adoption and
24 who are eligible for adoption. That notification shall include information regarding adoption
25 subsidies, ongoing medical and mental health coverage for the adopted child, training for adoptive
26 parents, and continued support for adoptive parents pursuant to Section 62A-4a-205.6.
27 (b) The notification and information provided pursuant to Subsection (2)(a) shall include
28 a time-limited request for permission from the potential adoptive parents to provide the division
29 with their names. With regard to those parents who grant permission, the agency shall provide the
30 division with those names within ten calendar days of receiving permission. Upon receipt of those
31 names, the division shall consider the suitability of those persons as potential adoptive parents for
1 children in the custody of the division, provide the agency with the names and complete case
2 histories of appropriate children, and provide the training and support described in Subsection
4 Section 4. Section 78-3a-307 is amended to read:
5 78-3a-307. Shelter hearing -- Placement with a noncustodial parent or relative.
6 (1) (a) When, at the time of the shelter hearing, the court orders that a child be removed
7 from the custody of his parent in accordance with the requirements of Section 78-3a-306, the court
8 shall first determine whether there is another natural parent, with whom the child was not residing
9 at the time the events or conditions that brought him within the court's jurisdiction occurred, who
10 desires to assume custody of the child. If that parent requests custody, the court shall place the
11 minor with that parent unless it finds that the placement would be unsafe or otherwise detrimental
12 to the child.
13 (b) (i) The court shall make a specific finding regarding the fitness of that parent to assume
14 custody, and the safety and appropriateness of the placement.
15 (ii) The court may order the Division of Child and Family Services to conduct an
16 investigation regarding the safety and appropriateness of the placement.
17 (iii) If the court orders an investigation by the division, the division shall, at a minimum,
18 visit the home, perform criminal background checks in accordance with Sections 78-3a-307.1 and
19 62A-4a-202.4, and check the division's management information system for any previous reports
20 of abuse or neglect received by the division regarding the parent at issue.
21 (iv) The division shall report its findings in writing to the court.
22 (v) The court may place the child in the temporary custody of the division, pending its
23 determination regarding that placement.
24 (2) If the court orders placement with a parent under Subsection (1), it may order that the
25 parent assume custody subject to the supervision of the court, and order that services be provided
26 to the parent from whose custody the child was removed, the parent who has assumed custody, or
27 both. The court may also provide for reasonable visitation with the parent from whose custody
28 the child was removed, if that is in the best interest of the child. The court's order shall be
29 periodically reviewed to determine whether:
30 (a) placement with the parent continues to be in the child's best interest;
31 (b) the child should be returned to the original custodial parent;
1 (c) the child should be placed with a relative, pursuant to Subsection [
2 (d) the child should be placed in the custody of the division.
3 (3) The time periods described in Section 78-3a-311 with regard to reunification apply to
4 children placed with a previously noncustodial parent in accordance with Subsection (1).
5 (4) Legal custody of the child is not affected by an order entered under Subsection (1) or
6 (2). In order to affect a previous court order regarding legal custody, the party must petition that
7 court for modification of the order.
8 (5) (a) If, at the time of the shelter hearing, a child is removed from the custody of his
9 parent and is not placed in the custody of his other parent, the court shall, at that time, determine
10 whether there is a relative who is able and willing to care for the child. The court may order the
11 Division of Child and Family Services to conduct a reasonable search to determine whether there
12 are relatives of the child who are willing and appropriate, in accordance with the requirements of
13 this section, for placement of the child. The child may be placed in the temporary custody of the
14 division pending that determination. This section may not be construed as a guarantee that an
15 identified relative will receive custody of the child. However, preferential consideration may be
16 given to a relative's request for placement of the child, if it is in the best interest of the child, and
17 the provisions of this section are satisfied.
18 (b) If a willing relative is identified pursuant to Subsection (a), the court shall make a
19 specific finding regarding the fitness of that relative to assume custody, and the safety and
20 appropriateness of placement with that relative. The court may order the Division of Child and
21 Family Services to conduct an investigation regarding the safety and appropriateness of the
22 placement. The division shall conduct criminal background checks in accordance with Sections
23 78-3a-307.1 and 62A-4a-202.4, report its findings in writing to the court, and provide sufficient
24 information so that the court may determine whether:
25 (i) the relative has any history of abusive or neglectful behavior toward other children that
26 may indicate or present a danger to this child;
27 (ii) the child is comfortable with the relative;
28 (iii) the relative recognizes the parent's history of abuse and is determined to protect the
30 (iv) the relative is strong enough to resist inappropriate requests by the parent for access
31 to the child, in accordance with court orders;
1 (v) the relative is committed to caring for the child as long as necessary; and
2 (vi) the relative can provide a secure and stable environment for the child.
3 (c) The court may place the child in the temporary custody of the division, pending the
4 division's investigation pursuant to Subsection (b), and the court's determination regarding that
5 placement. The court shall ultimately base its determination regarding placement with a relative
6 on the best interest of the child.
7 (d) For purposes of this section, "relative" means an adult who is a grandparent, aunt,
8 uncle, or sibling of the child.
9 (6) When the court vests physical custody of a child with a relative pursuant to Subsection
11 court, and shall order that any necessary services be provided to the minor and the relative. That
12 placement shall be periodically reviewed by the court to determine whether:
13 (a) placement with the relative continues to be in the child's best interest;
14 (b) the child should be returned home; or
15 (c) the child should be placed in the custody of the division.
16 (7) (a) When the court vests custody of a child with another parent or relative pursuant to
17 this section, the child is not within the temporary custody or custody of the Division of Child and
18 Family Services. The child, any parent affected by this section, and any relative with whom the
19 child is placed are under the continuing jurisdiction of the court. The court may enter any order
20 that it deems necessary for the protection and best interest of the child. The time periods described
21 in Section 78-3a-311, with regard to reunification, apply to children placed with a relative pursuant
22 to Subsection [
23 (b) When the court orders that a child be removed from the custody of his parent and does
24 not vest custody in another parent or relative under this section, the court shall order that the child
25 be placed in the temporary custody of the Division of Child and Family Services, to proceed to
26 adjudication and disposition and to be provided with care and services in accordance with this
27 chapter and Title 62A, Chapter 4a, Child and Family Services.
28 (8) (a) Any preferential consideration that a relative may be initially granted pursuant to
29 Subsection [
30 expired, a relative who has not obtained custody or asserted an interest in a child, may not be
31 granted preferential consideration by the division or the court.
1 (b) When a period of 30 days from the shelter hearing has expired, the preferential
2 consideration which may initially be granted to a parent in accordance with Subsection (1), is
3 limited. After that time the court shall base its custody decision on the best interest of the child.
4 The court shall take into consideration:
5 (i) the extent of the parent's relationship with the child;
6 (ii) whether the parent had actual knowledge of the child's removal from the other parent's
8 (iii) whether, in the past, the parent has participated in raising the child by taking
9 responsibility for the child, maintaining a relationship with the child, and financially supporting
10 the child in accordance with his abilities; and
11 (iv) the nature and extent of the child's relationships and well-being in his current
13 Section 5. Section 78-3a-311 is amended to read:
14 78-3a-311. Dispositional hearing -- Child in custody of Division of Child and Family
15 Services -- Order for reunification services -- Exceptions.
16 (1) The court may make any of the dispositions described in Section 78-3a-516, place the
17 child in the custody or guardianship of any individual or public or private entity or agency, order
18 protective supervision, family preservation, medical or mental health treatment, or other services.
19 (2) (a) Except as provided in Subsection (3), whenever the court orders continued removal
20 at the dispositional hearing, and that the minor remain in the custody of the Division of Child and
21 Family Services, it shall order that the division make reasonable efforts to provide services to the
22 minor and his parent for the purpose of facilitating reunification of the family, within a maximum
23 time period not to exceed 12 months from the date that the child was initially removed from his
24 home by the division.
25 (b) Any physical custody of the minor by the parent during the period described in
26 Subsection (a) does not interrupt the running of the period.
27 (c) At the expiration of the 12-month period described in Subsection (a), a dispositional
28 review hearing shall be conducted by the court in accordance with Section 78-3a-312. If at that
29 time the child cannot be safely returned to the care and custody of his parent without court
30 supervision, a permanency plan for the child shall be finalized. If the child clearly desires contact
31 with the parent, the court shall take the child's desire into consideration in determining the
1 permanency plan.
2 (d) With regard to a child who is two years of age or younger at the time the court orders
3 reunification services, the court [
4 months if the parent or parents have not made substantial efforts to comply with the treatment plan.
5 The burden is upon the parents, and the division if it supports continued reunification services, to
6 show that the parents have made substantial efforts to comply with the plan during the first six
7 months of reunification services.
8 (e) With regard to a child in the custody of the division whose parent or parents have been
9 ordered to receive reunification services but who have abandoned that child for a period of six
10 months since the date that reunification services were ordered, the court shall terminate
11 reunification services, and the division shall petition the court for termination of parental rights.
12 (3) Because of the state's interest in and responsibility to protect and provide permanency
13 for children who are abused, neglected, or dependent, the Legislature finds that a parent's interest
14 in receiving reunification services is limited. The court may, under any circumstances, determine
15 that efforts to reunify a child with his family are not reasonable, based on the individual
16 circumstances, and that reunification services need not be provided. In any case, there is a
17 presumption that reunification services should not be provided to a parent if the court finds, by
18 clear and convincing evidence, that any of the following circumstances exist:
19 (a) the whereabouts of the parents are unknown, based upon a verified affidavit indicating
20 that a reasonably diligent search has failed to locate the parent;
21 (b) the parent is suffering from a mental illness of such magnitude that it renders him
22 incapable of utilizing those services; that finding shall be based on competent evidence from
23 mental health professionals establishing that, even with the provision of services, the parent is
24 unlikely to be capable of adequately caring for the child within 12 months;
25 (c) the minor has been previously adjudicated as an abused child due to physical or sexual
26 abuse, that following the adjudication the child was removed from the custody of his parent, was
27 subsequently returned to the custody of that parent, and the minor is being removed due to
28 additional physical or sexual abuse;
29 (d) the parent has been convicted of causing the death of another child through abuse or
31 (e) the minor has suffered severe abuse by the parent or by any person known by the
1 parent, if the parent knew or reasonably should have known that the person was abusing the minor;
2 (f) the minor has been adjudicated an abused child as a result of severe abuse by the parent,
3 and the court finds that it would not benefit the child to pursue reunification services with the
4 offending parent;
5 (g) the parent's rights have been terminated with regard to any other child;
6 (h) the child has been removed from his home on at least two previous occasions and
7 reunification services were offered or provided to the family at those times; [
8 (i) the parent has abandoned the child for a period of six months or longer; or
10 efforts or services.
11 (4) (a) Failure of the parent to respond to previous services or comply with any previous
12 treatment plan, the fact that the child was abused while the parent was under the influence of drugs
13 or alcohol, a past history of violent behavior, whether a parent continues to live with an individual
14 who abused the child, any patterns of the parent's behavior that have exposed the child to repeated
15 abuse, or testimony by a competent professional that the parent's behavior is unlikely to be
16 successful, are relevant factors to consider in determining whether reunification services should
17 be ordered.
18 (b) The court shall also consider whether the parent has expressed an interest in
19 reunification with the child, in determining whether to order that reunification services be
21 (5) If reunification services are not ordered pursuant to Subsection (3)(a), and the
22 whereabouts of a parent become known within six months of the out-of-home placement of the
23 minor, the court may order the division to provide reunification services. The time limits
24 described in Subsection (2), however, are not tolled by the parent's absence.
25 (6) If a parent is incarcerated or institutionalized, the court shall order reasonable services
26 unless it determines that those services would be detrimental to the minor. In determining
27 detriment, the court shall consider the age of the child, the degree of parent-child bonding, the
28 length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of
29 detriment to the child if services are not offered and, for minors ten years of age or older, the
30 minor's attitude toward the implementation of family reunification services, and any other
31 appropriate factors. Reunification services for an incarcerated or institutionalized parent are
1 subject to the 12-month limitation imposed in Subsection (2) unless the court determines that
2 continued reunification services would be in the child's best interest.
3 (7) If, pursuant to Subsection (3)(b), (c), (d), (e), (f), (g), (h), [
4 not order reunification services, a hearing shall be conducted within 120 days for establishment
5 of a permanency plan for the child, in accordance with Subsection 78-3a-312(3).
6 Section 6. Section 78-3a-404 is amended to read:
7 78-3a-404. Petition -- Who may file.
8 (1) (a) Any interested party may file a petition for termination of the parent-child
9 relationship with regard to a child.
10 (b) A child's foster parent may file a petition for termination of parental rights so long as
11 that foster parent intends to pursue adoption [
13 because the division removes the child from that home.
14 (2) The attorney general shall file a petition for termination of parental rights under this
15 part on behalf of the division.
16 Section 7. Section 78-30-1.6 is enacted to read:
17 78-30-1.6. Children in the custody of the Division of Child & Family Services --
18 Consideration of child's relationship with foster parents who petition for adoption.
19 In assessing the best interest of a child in the custody of the Division of Child and Family
20 Services whose foster parents have petitioned for adoption, the court shall give special
21 consideration to the relationship of the child with his foster parents, if the child has been in that
22 home for a period of six months or longer.
Legislative Review Note
as of 2-4-97 9:40 AM
This bill raises the following constitutional or statutory concerns:
The amendment to Subsection 78-3a-311(2)(d) makes termination of reunification services
mandatory after six months, with regard to a child who is two years of age or younger. That
provision, as applied to the circumstances of an individual case, could be found by a court to
violate a parent's constitutionally protected rights in raising his or her child. It would depend
on the nature of the abuse or neglect, the nature of the reunification services, and other
individual circumstances. However, the statute's six month deadline does not apply if the
parent has made substantial efforts to comply with the treatment plan. Because the state does
have a compelling interest in protecting children and in providing permanency to children in
the state foster care system, there is a strong legal argument in favor of treating the cases of
very young children with a greater degree of state intervention.
Office of Legislative Research and General Counsel
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