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H.B. 133

             1     

AMENDMENTS TO CHILD ABUSE AND

             2     
NEGLECT PROVISIONS

             3     
1999 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Matt Throckmorton

             6      AN ACT RELATING TO THE DIVISION OF CHILD AND FAMILY SERVICES; PROVIDING
             7      SPECIFIED LIMITATIONS ON INVESTIGATION OF CHILD ABUSE OR NEGLECT;
             8      REQUIRING DIVISION TO PETITION COURT FOR REMOVAL OF CHILD FROM STATE
             9      AND FROM DIVISION CUSTODY UNDER SPECIFIED CIRCUMSTANCES; INCLUDING
             10      PROVISIONS REGARDING DEFENSE OF INEFFECTIVE ASSISTANCE OF COUNSEL;
             11      PROHIBITING DIVISION FROM VIOLATING PARENTS RELIGIOUS BELIEFS OR
             12      MATTERS OF CONSCIENCE WITH REGARD TO CHILDREN WHO HAVE BEEN
             13      REMOVED; REQUIRING SPECIFIED ACCESS TO DIVISION RECORDS; AND PROVIDING
             14      AN EFFECTIVE DATE.
             15      This act affects sections of Utah Code Annotated 1953 as follows:
             16      AMENDS:
             17          62A-4a-409, as last amended by Chapter 274, Laws of Utah 1998
             18      ENACTS:
             19          62A-4a-201.5, Utah Code Annotated 1953
             20      Be it enacted by the Legislature of the state of Utah:
             21          Section 1. Section 62A-4a-201.5 is enacted to read:
             22          62A-4a-201.5. Removal of child from state and from division custody -- Claims of
             23      ineffective assistance of counsel -- Prohibiting division from violating religious beliefs or
             24      matters of conscience with regard to children who have been removed -- Providing access to
             25      records.
             26          (1) Notwithstanding any other provision of law, the division shall petition the appropriate
             27      juvenile court, alleging a material and substantial change in the circumstances of a child who is


             28      subject to the court's jurisdiction, meriting revision of existing court orders to allow for removal
             29      of the child from this state and the division's custody, if:
             30          (a) parental rights have not been terminated with regard to that child;
             31          (b) the parent of the child who is subject to the court order has established domicile or
             32      residence in another state, either pursuant to court order or as an exercise of a constitutional right
             33      to travel;
             34          (c) the parent of the child who is subject to the court order is able to show, by substantial
             35      evidence, that it is more likely than not that:
             36          (i) the child was either domiciled or residing in that other state when the division removed
             37      the child;
             38          (ii) the child will receive necessary child welfare services in that other state; or
             39          (iii) the child is the subject of a petition filed in a juvenile court in that other state by a
             40      person or entity that has standing to file that petition, and the child will receive necessary child
             41      welfare services under order of that court, in accordance with the provisions of the laws of that
             42      state; and
             43          (d) where applicable, the provisions of Title 62A, Chapter 4a, Part 7, Interstate Compact
             44      on the Placement of Children; Title 78, Chapter 45c, Uniform Child Custody Jurisdiction, and the
             45      federal Parental Kidnaping Prevention Act of 1980, 28 U.S.C. Section 1738A, have been complied
             46      with.
             47          (2) (a) In the absence of exigent circumstances, when the goal of a treatment plan is
             48      reunification and the child is in the custody of the division, and a previously custodial parent with
             49      whom reunification is sought has notified the division that specified conduct of the division
             50      regarding the child violates or prevents the exercise of religious beliefs or conduct, or infringes on
             51      the conscience of the parent or child, the division may not engage in or prohibit the conduct unless,
             52      after a hearing, the juvenile court determines that the division has shown by clear and convincing
             53      evidence that:
             54          (i) the division's proposed action or conduct is essential to the immediate well being of the
             55      child; and
             56          (ii) the action taken is the least restrictive alternative to achieve the immediate protection
             57      or well being of the child.
             58          (b) Administrative convenience for the division is insufficient justification for violating


             59      the religious beliefs or matters of conscience of a parent who is seeking reunification with his
             60      child.
             61          (c) There is a rebuttable presumption that the religious beliefs and matters of conscience
             62      of the parent are sincerely held and are for the benefit of that parent's family, including the child
             63      who is in the division's custody. If that presumption is challenged, the parent may overcome the
             64      challenge by showing, by a preponderance of the evidence, that:
             65          (i) the religious beliefs or matters of conscience are sincerely held;
             66          (ii) the religious beliefs or matters of conscience held by the parent are infringed upon or
             67      impeded by the action or conduct of the division, its employees, or agents; and
             68          (iii) other professionally accepted and competent, less intrusive alternatives exist, which
             69      could be used to meet the needs of the child without infringing on the religious belief or matter of
             70      conscience of the parent. Other professionally competent alternatives may be established before
             71      the court by the professional opinion of a person licensed in this or another state, or the
             72      presentation to the court of at least two peer-reviewed articles regarding alternate courses of
             73      conduct.
             74          (3) Notwithstanding any other provision of law, a parent of any child in the custody of the
             75      division is entitled to all records in the control or custody of the division that affect that child. The
             76      parent is entitled to provide, at his own expense, an independent medical, psychiatric, or
             77      psychological examination of his child to the court at any stage of a civil abuse or neglect
             78      proceeding. The parent, his counsel, or any person designated in writing by either of them, is
             79      entitled to review division and public court records relating to the named child with a member of
             80      the Legislature, or his designee.
             81          (4) In an abuse or neglect proceeding in juvenile court or on appeal, a parent may raise the
             82      defense of ineffective assistance of counsel regarding any matter that has an alleged or actual
             83      impact on the formulation, adoption, or failure to fulfill or comply with any part of a treatment plan
             84      regarding any child or his parent or guardian. The division, or any other party to the action, may
             85      challenge or oppose a parent's claim of ineffective assistance of counsel.
             86          Section 2. Section 62A-4a-409 is amended to read:
             87           62A-4a-409. Investigation by division -- Temporary protective custody.
             88          (1) The division shall make a thorough investigation upon receiving either an oral or
             89      written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug dependency, when


             90      there is reasonable cause to suspect a situation of abuse, neglect, fetal alcohol syndrome, or fetal
             91      drug dependency. The primary purpose of that investigation shall be protection of the child.
             92          (2) The following reported conditions do not, of themselves, create sufficient allegations
             93      of abuse or neglect for the division to initiate a child protective service investigation:
             94          (a) children, age eight and older, who are left in the parent's or caretaker's home without
             95      parental supervision for brief periods of time, but not overnight, provided the child has no
             96      significant medical or handicapping condition;
             97          (b) children, age ten and older, who provide brief supervision for younger children who
             98      are at least one year of age or older, provided that the supervised children have no significant
             99      medical or handicapping condition;
             100          (c) the use of legal substances or tobacco products in the presence of a child;
             101          (d) the presence of head lice, poor grooming, or irregular hygiene practices of a child;
             102          (e) failure of a parent or caretaker to immunize a child;
             103          (f) use of profane language in the presence of a child;
             104          (g) the exercise of parental discipline of a child by spanking, so long as there is no
             105      significant external or internal physical injury to a child; or
             106          (h) the refusal of a parent to support, sanction, or approve:
             107          (i) a minor's desire to obtain an abortion;
             108          (ii) a minor's engaging in conduct that violates the parent's religious beliefs; or
             109          (iii) a minor's engaging in conduct that is prohibited by state law, including acts of
             110      fornication, sodomy, or adultery.
             111          [(2)] (3) The investigation may include inquiry into the child's home environment,
             112      emotional, or mental health, nature and extent of injuries, and physical safety.
             113          [(3)] (4) The division shall make a written report of its investigation. The written report
             114      shall include a determination regarding whether the alleged abuse or neglect was substantiated or
             115      unsubstantiated.
             116          [(4)] (5) (a) The division shall use an interdisciplinary approach whenever possible in
             117      dealing with reports made under this part.
             118          (b) For this purpose, the division shall convene appropriate interdisciplinary "child
             119      protection teams" to assist it in its protective, diagnostic, assessment, treatment, and coordination
             120      services.


             121          (c) A representative of the division shall serve as the team's coordinator and chair.
             122      Members of the team shall serve at the coordinator's invitation, and whenever possible, the team
             123      shall include representatives of health, mental health, education, law enforcement agencies, and
             124      other appropriate agencies or individuals.
             125          [(5)] (6) In any case where the division supervises, governs, or directs the affairs of any
             126      individual, institution, or facility that has been alleged to be involved in acts or omissions of child
             127      abuse or neglect, the investigation of the reported child abuse or neglect shall be conducted by an
             128      agency other than the division.
             129          [(6)] (7) If a report of neglect is based upon or includes an allegation of educational neglect
             130      the division shall immediately consult with school authorities to verify the child's status in
             131      accordance with Sections 53A-11-101 through 53A-11-103 .
             132          [(7)] (8) When the division has completed its initial investigation under this part, it shall
             133      give notice of that completion to the person who made the initial report.
             134          [(8)] (9) Division workers or other child protection team members have authority to enter
             135      upon public or private premises, using appropriate legal processes, to investigate reports of alleged
             136      child abuse or neglect.
             137          [(9)] (10) In accordance with the procedures and requirements of Sections 62A-4a-202.1
             138      through 62A-4a-202.3 and 78-3a-301 , a division worker or child protection team member may take
             139      a child into protective custody, and deliver the child to a law enforcement officer, or place the child
             140      in an emergency shelter facility approved by the juvenile court, at the earliest opportunity
             141      subsequent to the child's removal from its original environment. Control and jurisdiction over the
             142      child is determined by the provisions of Title 78, Chapter 3a, and as otherwise provided by law.
             143          Section 3. Severability clause.
             144          If any provision of this act, or the application of any provision to any person or
             145      circumstance, is held invalid, the remainder of this act shall be given effect without the invalid
             146      provision or application.
             147          Section 4. Effective date.
             148          If approved by two-thirds of all the members elected to each house, this act takes effect
             149      upon approval by the governor, or the day following the constitutional time limit of Utah
             150      Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto, the
             151      date of veto override.






Legislative Review Note
    as of 2-16-99 8:50 AM


This legislation raises the following constitutional or statutory concerns:

The provisions enacted by this legislation in Section 62A-4a-201.5 affect and potentially conflict
with existing statutory provisions throughout Title 62A, Chapter 4a, and Title 78, Chapter 3a, Parts
3 and 4, regarding the standards for civil abuse and neglect proceedings. Because of the broad
nature of the proposed provisions and the limited time for review, it is not possible to provide a
thorough legal and constitutional analysis of each potential conflict.

Subsection (2) of 62A-4a-201.5, absent any limitation or definition of "religious beliefs" or
"matters of conscience" may also conflict with existing code provisions throughout Title 62A,
Chapter 4a, and Title 78, Chapter 3a, Parts 3 and 4, which define abuse and neglect and provide
procedures and guidelines for the courts to determine when a parent's action is abusive. Several
existing Utah Code sections (for example, Section 62A-4a-201), the United States and Utah
Constitution, and state and federal case law currently protect parents' constitutional rights. The
same potential conflict exists with regard to Subsection 62A-4a-409(2). This provision also
requires an additional court hearing and determination, requiring proof by clear and convincing
evidence, regarding issues that have been and will be considered by the court in proceedings that
are currently statutorily prescribed.

It is uncertain how the provision relating to the claim of ineffective assistance of counsel will
interrelate to existing court rules and rules of procedure, but, on its face, it does not appear to
conflict.

Additionally, the effect of Subsection 62A-4a-409(2)(h)(i), regarding a minor's attempt or desire
to obtain an abortion, may be interpreted under the latest 10th Circuit opinion, Jane L. v. Bangerter,
102 F3d 1112 (1996), to place a "substantial obstacle" or "undue burden" on a minor woman, and
therefore may be considered unconstitutional under the 10th Circuit's opinion.

Office of Legislative Research and General Counsel


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