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H.B. 312

             1     

DIVISION OF CHILD AND FAMILY

             2     
SERVICES AMENDMENTS

             3     
2000 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Wayne A. Harper

             6      AN ACT RELATING TO THE CHILD WELFARE ACT; AMENDING THE DEFINITION OF
             7      RELATIVE; EXTENDING THE TIME FOR PREFERENTIAL CONSIDERATION OF A
             8      RELATIVE AFTER PROTECTIVE PROCEEDINGS HAVE BEGUN; AND ALLOWING FOR
             9      LICENSURE OR APPROVAL OF RELATIVE FOR FOSTER CARE.
             10      This act affects sections of Utah Code Annotated 1953 as follows:
             11      AMENDS:
             12          78-3a-307, as last amended by Chapter 274, Laws of Utah 1998
             13      ENACTS:
             14          62A-2-117.5, Utah Code Annotated 1953
             15      Be it enacted by the Legislature of the state of Utah:
             16          Section 1. Section 62A-2-117.5 is enacted to read:
             17          62A-2-117.5. Foster care licensure or approval of child's relative.
             18          (1) In accordance with h STATE AND h federal law, the division shall provide for licensure
             18a      h [ or approval ] h of
             19      a child's relative for foster or substitute care, when the child is in the temporary custody or custody
             20      of the Division of Child and Family Services. h IF IT IS DETERMINED THAT, UNDER FEDERAL LAW,
             20a      ALLOWANCE IS MADE FOR AN APPROVAL PROCESS REQUIRING LESS THAN FULL FOSTER
             20b      PARENT LICENSURE PROCEEDINGS FOR A CHILD'S RELATIVE, THE DIVISION SHALL ESTABLISH
             20c      AN APPROVAL PROCESS TO ACCOMPLISH THAT PURPOSE. h
             21          (2) For purposes of this section:
             22          (a) "Custody" and "temporary custody" mean the same as those terms are defined in
             23      Section 62A-4a-101 .
             24          (b) "Relative" means the same as that term is defined in Section 78-3a-307 .
             25          Section 2. Section 78-3a-307 is amended to read:
             26           78-3a-307. Shelter hearing -- Placement with a noncustodial parent or relative --
             27      DCFS custody.


             28          (1) (a) At the shelter hearing, when the court orders that a child be removed from the
             29      custody of his parent in accordance with the requirements of Section 78-3a-306 , the court shall
             30      first determine whether there is another natural parent as defined in Subsection (1)(b), with whom
             31      the child was not residing at the time the events or conditions that brought him within the court's
             32      jurisdiction occurred, who desires to assume custody of the child. If that parent requests custody,
             33      the court shall place the minor with that parent unless it finds that the placement would be unsafe
             34      or otherwise detrimental to the child. The provisions of this Subsection (1) are limited by the
             35      provisions of Subsection (8)(b).
             36          (b) Notwithstanding the provisions of Section 78-3a-103 , for purposes of this section
             37      "natural parent" includes only a biological or adoptive mother, an adoptive father, or a biological
             38      father who was married to the child's biological mother at the time the child was conceived or
             39      born, or who has strictly complied with the provisions of Section 78-30-4.14 prior to removal of
             40      the child or voluntary surrender of the child by the custodial parent. This definition applies
             41      regardless of whether the child has been or will be placed with adoptive parents or whether
             42      adoption has been or will be considered as a long term goal for the child.
             43          (c) (i) The court shall make a specific finding regarding the fitness of that parent to assume
             44      custody, and the safety and appropriateness of the placement.
             45          (ii) The court shall, at a minimum, order the division to visit the parent's home, perform
             46      criminal background checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , and check the
             47      division's management information system for any previous reports of abuse or neglect received
             48      by the division regarding the parent at issue.
             49          (iii) The court may order the Division of Child and Family Services to conduct any further
             50      investigation regarding the safety and appropriateness of the placement.
             51          (iv) The division shall report its findings in writing to the court.
             52          (v) The court may place the child in the temporary custody of the division, pending its
             53      determination regarding that placement.
             54          (2) If the court orders placement with a parent under Subsection (1), the child and the
             55      parent are under the continuing jurisdiction of the court. The court may order that the parent
             56      assume custody subject to the supervision of the court, and order that services be provided to the
             57      parent from whose custody the child was removed, the parent who has assumed custody, or both.
             58      The court may also provide for reasonable visitation with the parent from whose custody the child


             59      was removed, if that is in the best interest of the child. The court's order shall be periodically
             60      reviewed to determine whether:
             61          (a) placement with the parent continues to be in the child's best interest;
             62          (b) the child should be returned to the original custodial parent;
             63          (c) the child should be placed with a relative, pursuant to Subsection (5); or
             64          (d) the child should be placed in the custody of the division.
             65          (3) The time limitations described in Section 78-3a-311 with regard to reunification
             66      efforts, apply to children placed with a previously noncustodial parent in accordance with
             67      Subsection (1).
             68          (4) Legal custody of the child is not affected by an order entered under Subsection (1) or
             69      (2). In order to affect a previous court order regarding legal custody, the party must petition that
             70      court for modification of the order.
             71          (5) (a) If, at the time of the shelter hearing, a child is removed from the custody of his
             72      parent and is not placed in the custody of his other parent, the court shall, at that time, determine
             73      whether there is a relative who is able and willing to care for the child . h [h THE COURT SHALL
             73a      ORDER THE PARENTS TO DISCLOSE THE NAMES AND ADDRESSES OF THE RELATIVES TO THE
             73b      DIVISION WITHIN FIVE WORKING DAYS. h
] h
The court may order the
             74      Division of Child and Family Services to conduct a reasonable search to determine whether there
             75      are relatives of the child who are willing and appropriate, in accordance with the requirements of
             76      this part and Title 62A, Chapter 4a, Part 2, Child Welfare Services, for placement of the child.
             76a      h THE COURT SHALL ORDER THE PARENTS TO COOPERATE WITH THE DIVISION, WITHIN FIVE
             76b      WORKING DAYS, TO PROVIDE INFORMATION REGARDING RELATIVES WHO MAY BE ABLE AND
             76c      WILLING TO CARE FOR THE CHILD. h The
             77      child may be placed in the temporary custody of the division pending that determination. This
             78      section may not be construed as a guarantee that an identified relative will receive custody of the
             79      child. However, preferential consideration may be given to a relative's request for placement of
             80      the child, if it is in the best interest of the child, and the provisions of this section are satisfied.
             81          (b) (i) If a willing relative is identified pursuant to Subsection (5)(a), the court shall make
             82      a specific finding regarding the fitness of that relative to assume custody, and the safety and
             83      appropriateness of placement with that relative. In order to be considered a "willing relative"
             84      under this section, the relative shall be willing to cooperate if the child's permanency goal is
             85      reunification with his parent or parents, and be willing to adopt or take permanent custody of the
             86      child if that is determined to be in the best interest of the child.
             87          (ii) The court shall, at a minimum, order the division to conduct criminal background
             88      checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , visit the relative's home, check the
             89      division's management information system for any previous reports of abuse or neglect regarding


             90      the relative at issue, report its findings in writing to the court, and provide sufficient information
             91      so that the court may determine whether:
             92          (A) the relative has any history of abusive or neglectful behavior toward other children that
             93      may indicate or present a danger to this child;
             94          (B) the child is comfortable with the relative;
             95          (C) the relative recognizes the parent's history of abuse and is determined to protect the
             96      child;
             97          (D) the relative is strong enough to resist inappropriate requests by the parent for access
             98      to the child, in accordance with court orders;
             99          (E) the relative is committed to caring for the child as long as necessary; and
             100          (F) the relative can provide a secure and stable environment for the child.
             101          (iii) The court may order the Division of Child and Family Services to conduct any further
             102      investigation regarding the safety and appropriateness of the placement.
             103          (iv) The division shall complete and file its assessment regarding placement with a relative
             104      as soon as practicable, in an effort to facilitate placement of the child with a relative.
             105          (c) The court may place the child in the temporary custody of the division, pending the
             106      division's investigation pursuant to Subsection (5)(b), and the court's determination regarding that
             107      placement. The court shall ultimately base its determination regarding placement with a relative
             108      on the best interest of the child.
             109          (d) For purposes of this section, "relative" means an adult who is a grandparent, great
             110      grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, h FIRST
             110a      COUSIN, STEP-SIBLING, h or sibling
             111      of the child. In the case of a child defined as an "Indian" under the Indian Child Welfare Act, 25
             112      U.S.C. Section 1903, "relative" also means an "extended family member" as defined by that
             113      statute.
             114          (6) (a) When the court vests physical custody of a child with a relative pursuant to
             115      Subsection (5), it shall order that the relative assume custody subject to the continuing supervision
             116      of the court, and shall order that any necessary services be provided to the minor and the relative.
             117      That child is not within the temporary custody or custody of the Division of Child and Family
             118      Services. The child and any relative with whom the child is placed are under the continuing
             119      jurisdiction of the court. The court may enter any order that it considers necessary for the
             120      protection and best interest of the child.


             121          (b) (i) Placement with a relative pursuant to Subsection (5) shall be periodically reviewed
             122      by the court, no less often than every six months, to determine whether:
             123          (A) placement with the relative continues to be in the child's best interest;
             124          (B) the child should be returned home; or
             125          (C) the child should be placed in the custody of the division.
             126          (ii) No later than 12 months after placement with a relative the court shall schedule a
             127      hearing for the purpose of entering a permanent order in accordance with the best interest of the
             128      child.
             129          (iii) The time limitations described in Section 78-3a-311 , with regard to reunification
             130      efforts, apply to children placed with a relative pursuant to Subsection (5).
             131          (7) When the court orders that a child be removed from the custody of his parent and does
             132      not vest custody in another parent or relative under this section, the court shall order that the child
             133      be placed in the temporary custody of the Division of Child and Family Services, to proceed to
             134      adjudication and disposition and to be provided with care and services in accordance with this
             135      chapter and Title 62A, Chapter 4a, Child and Family Services.
             136          (8) (a) Any preferential consideration that a relative may be initially granted pursuant to
             137      Subsection (5) expires [30] the latter of 90 days from the date of the shelter hearing or 60 days
             138      from the date of adjudication. After that time period has expired, a relative who has not obtained
             139      custody or asserted an interest in a child, may not be granted preferential consideration by the
             140      division or the court.
             141          (b) When [a period of 30 days from the date of the shelter hearing] the time period
             142      described in Subsection (8)(a) has expired, the preferential consideration which may initially be
             143      granted to a natural parent in accordance with Subsection (1), is limited. After that time the court
             144      shall base its custody decision on the best interest of the child.




Legislative Review Note
    as of 1-28-00 4:17 PM


A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel


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