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H.B. 109






Sponsor: Nora B. Stephens

14    This act affects sections of Utah Code Annotated 1953 as follows:
15    AMENDS:
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
22    ENACTS:
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
4    78-3a-312(3).
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 [pursuant to] under Part 6.
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 [making] that have proven to
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

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1    successfully;
2        [(c)] (d) records and reports to be made and kept by child placing agencies;
3        [(d)] (e) standards of practice to be followed by child placing agencies;
4        [(e)] (f) the use of homes to receive and care for children received by child placing
5    agencies; and
6        [(f)] (g) any other matter deemed necessary to assure the competency and suitability of
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

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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
3    62A-4a-205.6(4).
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;

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1        (c) the child should be placed with a relative, pursuant to Subsection [(4)] (5); or
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
29    child;
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;

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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
10    [(4)] (5), it shall order that the relative assume custody subject to the continuing supervision of the
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 [(4)] (5).
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 [(4)](5) expires 30 days from the date of the shelter hearing. After that time period has
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.

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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
7    custody;
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
12    placement.
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

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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 [may] shall order the discontinuance of those services after six
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
30    neglect;
31        (e) the minor has suffered severe abuse by the parent or by any person known by the

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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; [or]
8        (i) the parent has abandoned the child for a period of six months or longer; or
9        [(i)] (j) any other circumstance that the court determines should preclude reunification
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
20    provided.
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

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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), [or] (i), or (j) the court does
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 [and has had physical custody of the child for one year
12    or longer]. A foster parent does not lose standing to file a petition under this section solely
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.

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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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