H.B. 83

1

CHILD WELFARE AMENDMENTS
2 2001 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Wayne A. Harper
5 This act modifies provisions of the Judicial Code and the Human Services Code related to
6 child welfare. This act requires the Division of Child and Family Services to maintain a
7 h [ separate database system for ] separation of h unsubstantiated reports of child abuse and
7a reports of child
8 abuse that are without merit. The act reduces the period of time unsubstantiated reports of
9 child abuse are maintained on the database system from ten years to five years. h The act
9a clarifies when a person is entitled to a hearing before being placed on the database system. h The
9b act
10 clarifies the circumstances in which an officer may use force to remove a child from a home.
11 This act clarifies the conditions that must be met before a child suspected of being abused
12 or a sibling may be removed from the home. The act requires a court to order visitation with
13 a parent at the shelter hearing and at the dispositional hearing unless visitation is not in the
14 best interest of the child. h This act includes a coordination clause. h
15 This act affects sections of Utah Code Annotated 1953 as follows:
16 AMENDS:
17 62A-4a-116, as last amended by Chapters 304 and 321, Laws of Utah 2000
17a h 62A-4a-116.5, as last amended by Chapter 304, Laws of Utah 2000 h
18 78-3a-106, as last amended by Chapters 329 and 365, Laws of Utah 1997
19 78-3a-301, as last amended by Chapter 274, Laws of Utah 2000
20 78-3a-307, as last amended by Chapter 285, Laws of Utah 2000
21 78-3a-311, as last amended by Chapter 121, Laws of Utah 1999
22 Be it enacted by the Legislature of the state of Utah:
23 Section 1. Section 62A-4a-116 is amended to read:
24 62A-4a-116. Management information system -- Requirements.
25 (1) The division shall develop and implement a management information system that
26 meets the requirements of this section and the requirements of federal law and regulation.
27 (2) With regard to all child welfare cases, the management information system shall:

28 (a) provide each caseworker with a complete history of each child in his caseload,
29 including:
30 (i) all past action taken by the division with regard to that child and his siblings, the
31 complete case history and all reports and information in the control or keeping of the division
32 regarding that child and his siblings;
33 (ii) the number of times the child has been in foster care;
34 (iii) the cumulative period of time the child has been in foster care;
35 (iv) all reports of abuse or neglect received by the division with regard to that child's parent
36 or parents, including documentation regarding whether each report was substantiated,
37 unsubstantiated, or without merit;
38 (v) the number of times the child's parent or parents have failed any treatment plan; and
39 (vi) the number of different caseworkers who have been assigned to that child in the past;
40 (b) contain all key elements of each family's current treatment plan, including the dates and
41 number of times the plan has been administratively or judicially reviewed, the number of times the
42 parent or parents have failed that treatment plan, and the exact length of time that treatment plan
43 has been in effect;
44 (c) alert caseworkers regarding deadlines for completion of and compliance with treatment
45 plans; [and]
46 (d) unless the executive director determines that there is good cause for keeping the report
47 on the system based on standards established by rule, delete any reference to:
48 (i) a report that is without merit if no subsequent report involving the same alleged
49 perpetrator has occurred within one year; or
50 (ii) a report that is unsubstantiated if no subsequent report involving the same alleged
51 perpetrator has occurred within [ten] five years[.]; and
52 (e) h [ maintain a database system for reports that are without merit which system is separate
53 from the database system for reports that are unsubstantiated. ] MAINTAIN A SEPARATION OF
53a REPORTS THAT ARE WITHOUT MERIT IN THE SYSTEM TO IDENTIFY THE CASES APART FROM
53b SUBSTANTIATED CASES AND, WHERE NECESSARY, PROVIDE RESTRICTED ACCESS TO THE
53c WITHOUT MERIT CASES. h
54 (3) With regard to all child protective services cases, the management information system
55 shall, in addition to the information required in Subsection (2), monitor compliance with the policy
56 of the division, the laws of this state, and federal law and regulation.
57 (4) With regard to all child welfare and protective services cases, the age and date of birth
58 of the alleged perpetrator, at the time the abuse or neglect is alleged to have occurred, shall be

59 included in the management information system.
60 (5) (a) The division shall develop and maintain a part of the information management
61 system for licensing purposes, which shall be:
62 (i) limited to:
63 (A) substantiated findings of child abuse or neglect since January 1, 1988, after notice and
64 an opportunity to challenge has been provided under Section 62A-4a-116.5 ;
65 (B) the name of a person who was not sent a notice of agency action under Section
66 62A-4a-116.5 because his location was not available on the management information system or
67 who was sent a notice of agency action that was returned to the division as undelivered for the sole
68 purpose of alerting the division of the need to afford the person an opportunity to challenge the
69 finding of child abuse or neglect under Section 62A-4a-116.5 before any adverse action, beyond
70 delaying the person's licensing application to provide an opportunity for challenge, may be taken;
71 (C) an adjudication of child abuse or neglect by a court of competent jurisdiction if
72 Subsection 62A-4a-116.5 (5) has been met; and
73 (D) any criminal conviction or guilty plea related to neglect, physical abuse, or sexual
74 abuse of any person; and
75 (ii) accessible by:
76 (A) the Office of Licensing for licensing purposes only;
77 (B) the division:
78 (I) to screen a person at the request of the Office of the Guardian Ad Litem Director,
79 created by Section 78-3a-912 , at the time the person seeks a paid or voluntary position with the
80 Office of the Guardian Ad Litem and each year thereafter that the person remains with the office;
81 and
82 (II) to respond to a request for information from the person who is identified as a
83 perpetrator in the report, after advising the person of the screening prohibition in Subsection
84 (4)(d)(iii);
85 (C) subject to the provisions of Subsection (5)(c), the Bureau of Health Facility Licensure
86 within the Department of Health only for the purpose of licensing a child care program or provider,
87 or for determining whether a person associated with a covered health care facility, as defined by
88 the Department of Health by rule, who provides direct care to a child has a substantiated finding
89 of child abuse or neglect; and

90 (D) the department as provided in Subsection (6) and Section 62A-1-118 .
91 (b) For the purpose of Subsection (5)(a), "substantiated":
92 (i) means a finding that there is a reasonable basis to conclude that:
93 (A) a person 18 years of age or older committed one or more of the following types of
94 child abuse or neglect:
95 (I) physical abuse;
96 (II) sexual abuse;
97 (III) sexual exploitation;
98 (IV) abandonment;
99 (V) medical neglect resulting in death, disability, or serious illness; or
100 (VI) chronic or severe neglect; and
101 (B) a person under the age of 18:
102 (I) caused serious physical injury, as defined in Subsection 76-5-109 (1)(d), to another child
103 which indicates a significant risk to other children; or
104 (II) engaged in sexual behavior with or upon another child which indicates a significant
105 risk to other children; and
106 (ii) does not include:
107 (A) the use of reasonable and necessary physical restraint or force by an educator in
108 accordance with Subsection 53A-11-802 (2) or Section 76-2-401 ; or
109 (B) a person's conduct that:
110 (I) is justified under Section 76-2-401 ; or
111 (II) constituted the use of reasonable and necessary physical restraint or force in
112 self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or
113 other dangerous object in the possession or under the control of a child or to protect the child or
114 another person from physical injury.
115 (iii) (A) For purposes of Subsection (5)(b)(i)(B), "significant risk" shall be determined in
116 accordance with risk assessment tools and policies established by the division that focus on age,
117 social factors, emotional factors, sexual factors, intellectual factors, family risk factors, and other
118 related considerations.
119 (B) The division shall train its child protection workers to apply the risk assessment tools
120 and policies established under Subsection (5)(b)(iii)(A).
120a h [h (c) FOR PURPOSES OF THIS SUBSECTION (5)(a) AND SUBSECTIONS 62A-4a-116.5(3)
120b AND 62A-4a-116.5(4) "COURT OF COMPETENT JURISDICTION" MEANS A COURT OF RECORD. h] h

121 h [ (c) ] h [ ( d ) ] ( c ) h (i) The Department of Health shall:
122 (A) designate two persons within the Department of Health to access the licensing part of
123 the management information system; and
124 (B) adopt measures to:
125 (I) protect the security of the licensing part of the management information system; and
126 (II) strictly limit access to the licensing part of the management information system to
127 those designated under Subsection (5)(c)(i)(A).
128 (ii) Those designated under Subsection (5)(c)(i)(A) shall receive training from the
129 department with respect to:
130 (A) accessing the licensing part of the management information system;
131 (B) maintaining strict security; and
132 (C) the criminal provisions in Section 62A-4a-412 for the improper release of information.
133 (iii) Those designated under Subsection (5)(c)(i)(A):
134 (A) are the only ones in the Department of Health with the authority to access the licensing
135 part of the management information system; and
136 (B) may only access the licensing part of the management information system in
137 accordance with the provisions of Subsection (5)(a)(ii).
138 (iv) The Department of Health may obtain information in the possession of the division
139 that relates to a substantiated finding of abuse or neglect of a person screened under this
140 Subsection (5)(c).
141 h [ (d) ] h [ (e) ] (d) h (i) Information in the licensing part of the management information
141a system is
142 confidential and may only be used or disclosed as specifically provided in this section, Section
143 62A-2-121 , and Section 62A-4a-116.5 .
144 (ii) No person, unless listed in Subsection (5)(a)(ii), may request another person to obtain
145 or release a report or any other information in the possession of the division obtained as a result
146 of the report that is available under Subsection (5)(a)(ii)(A)(III) to screen for potential perpetrators
147 of child abuse or neglect.
148 (iii) A person who requests information knowing that it is a violation of Subsection
149 (5)(d)(ii) to do so is subject to the criminal penalty in Section 62A-4a-412 .
150 (6) All information contained in the management information system shall be available
151 to the department upon the approval of the executive director, on a need-to-know basis.

152 (7) (a) The division may allow its contract providers to have limited access to the
153 management information system. The division shall limit that access to information about persons
154 who are currently receiving services from the specific contract provider.
155 (b) Each contract provider shall:
156 (i) take all necessary precautions to safeguard the security of the information contained in
157 the management information system;
158 (ii) train its employees regarding requirements for confidentiality and the criminal
159 penalties under Sections 62A-4a-412 and 63-2-801 for improper release of information; and
160 (iii) monitor its employees to ensure that they comply with the confidentiality requirements
161 related to the management information system.
162 (c) The division shall take reasonable precautions to ensure that its contract providers are
163 complying with Subsection (7)(b).
164 (8) The division shall take all necessary precautions, including password protection and
165 other appropriate technological techniques, to prevent unauthorized access to the information
166 contained in the management information system.
167 (9) (a) The division shall send a certified letter to a person who submitted a report of child
168 abuse or neglect that is put onto any part of the management information system if the division
169 determines, at the conclusion of its investigation, that:
170 (i) the report is false;
171 (ii) it is more likely than not that the person knew that the report was false at the time the
172 person submitted the report; and
173 (iii) the person's address is known or reasonably available.
174 (b) The letter shall inform the person of:
175 (i) the determination made under Subsection (9)(a);
176 (ii) the penalty for submitting false information under Section 76-8-506 and other
177 applicable laws;
178 (iii) the obligation of the division to inform law enforcement and the alleged perpetrator:
179 (A) in the present instance if an immediate referral is justified by the facts; or
180 (B) if the person submits a subsequent false report involving the same alleged perpetrator
181 or victim.
182 (c) (i) The division may inform law enforcement and the alleged perpetrator of a report for

183 which a letter is required to be sent under Subsection (9)(a) if an immediate referral is justified by
184 the facts.
185 (ii) The division shall inform law enforcement and the alleged perpetrator of a report for
186 which a letter is required to be sent under Subsection (9)(a) if this is the second letter sent to the
187 person involving the same alleged perpetrator or victim.
188 (iii) The division shall determine, in consultation with law enforcement:
189 (A) the information to be given to an alleged perpetrator about a false claim; and
190 (B) whether good cause exists, as defined by rule, for not informing an alleged perpetrator
191 about a false claim.
192 (d) Nothing in this Subsection (9) may be construed as requiring the division to conduct
193 an investigation, beyond what is required in Subsection (9)(a), to determine whether or not a report
194 is false.
194a h Section 2. Section 62A-4a-116.5 is amended to read:
194b 62A-4a-116.5. Opportunity to challenge a finding of child
194c abuse or neglect.
194d (1) (a) The division shall send a notice of agency action to a person if the division finds, at the
194e conclusion of an investigation, that, in the opinion of the division, there is a reasonable basis to
194f conclude that the person committed abuse or neglect listed in Subsection 62A-4a-116(5)(b)(i). In the
194g event that the person is under the age of 18, the division shall:
194h (i) make reasonable efforts to identify the person's parent or legal guardian; and
194i (ii) send a notice to each parent or legal guardian identified under Subsection (1)(a)(i) that
194j lives at a different address unless there is good cause, as defined by rule, for not sending a notice to a
194k parent or legal guardian.
194l (b) For purposes of this section only, which governs the right of a person to challenge the
194m division's initial finding or opinion of abuse or neglect as it pertains to the licensing part of the
194n management information system, the division shall refer to a finding under Subsection (1)(a) as a
194o "finding" or an "initial finding" of abuse or neglect when notifying or explaining a notification to a
194p person.
194q (c) Nothing in this section may be construed as affecting:
194r (i) the manner in which the division conducts an investigation; or
194s (ii) the use or effect, in any other setting, of:
194t (A) an initial division finding or substantiation of child abuse or neglect at the completion of
194u an investigation for any purpose other than for notification under Subsection (1)(b); or
194v (B) the term "substantiated" as used in any other provision of the code.
194w (2) The notice shall state:
194x (a) that the division conducted an investigation;
194y (b) that the division found, at the conclusion of the investigation, that there was, in the
194z opinion of the division, a reasonable basis to conclude that abuse or neglect occurred;
194aa (c) the facts that support the finding;
194ab (d) that the person may be disqualified from adopting a child or working for or being licensed
194ac by: h

194ad h (i) the department;
194ae (ii) a human services licensee;
194af (iii) a child care provider or program; and
194ag (iv) a covered health care facility;
194ah (e) that the person has the right to request:
194ai (i) a copy of the report; and
194aj (ii) an opportunity to challenge the finding and its inclusion on the licensing part of the
194ak management information system described in Subsection 62A-4a-116(5), except as provided in
194al Subsection (5)(b); and
194am (f) that failure to request an opportunity to challenge the finding within 30 days of the notice
194an being received will result in an unappealable finding of substantiation of child abuse or neglect,
194ao unless the person can show good cause for why compliance within the 30-day requirement was
194ap virtually impossible or unreasonably burdensome.
194aq (3) (a) A person may make a request to challenge a finding within 30 days of:
194ar (i) a notice being received under Subsection (2);
194as (ii) a finding by a court of competent jurisdiction based on the same underlying facts that:
194at (A) child abuse or neglect, as described in Subsection 62A-4a-116(5)(b), did not occur; or
194au (B) the person was not responsible for the child abuse or neglect that did occur; or
194av (iii) the dismissal of criminal charges or a verdict of not guilty based on the same underlying
194aw facts.
194ax (b) The 30-day requirement of Subsection (3)(a) shall be extended for good cause shown that
194ay compliance was virtually impossible or unreasonably burdensome.
194az (c) The division may approve or deny a request made under Subsection (3)(a).
194ba (d) If the division denies the request or fails to act within 30 days after receiving a request
194bb submitted under Subsection (3)(a), the Office of Administrative Hearings shall hold an adjudicative
194bc proceeding pursuant to Title 63, Chapter 46b, Administrative Procedures Act.
194bd (4) (a) In an adjudicative proceeding held pursuant to Subsection (3)(d), the division shall
194be prove by a preponderance of the evidence that there is a reasonable basis to conclude that:
194bf (i) child abuse or neglect, as described in Subsection 62A-4a-116(5)(b), occurred; and
194bg (ii) the person was substantially responsible for the abuse or neglect that occurred.
194bh (b) The administrative hearing officer may make a determination of substantiation based
194bi solely on the out-of-court statement of the child that the officer finds to be reliable under the
194bj standards set forth in:
194bk (i) Section 76-5-411;
194bl (ii) Utah Rules of Criminal Procedure, Rule 15.5;
194bm (iii) Section 78-3a-116(5);
194bn (iv) the Utah Rules of Evidence; or
194bo (v) Utah case law.
194bp (5) (a) [A] EXCEPT AS PROVIDED IN SUBSECTION (5)(b), A person may not make a request to
194bq challenge a finding under Subsection (3)(a), if, at anytime, a court of competent jurisdiction has made
194br a determination based on the same underlying facts that:
194bs (i) child abuse or neglect, as described in Subsection 62A-4a-116(5)(b), occurred;
194bt (ii) the person was substantially responsible for the abuse or neglect that occurred; and h

194bu h (iii) the person:
194bv (A) was a party to the proceeding; or
194bw (B) (I) had notice of the proceeding; and
194bx (II) was provided a meaningful opportunity to challenge the facts underlying the court's
194by determination.
194bz (b) THE DIVISION SHALL REMOVE A PERSONS NAME FROM THE DATABASE UNLESS THE
194ca DIVISION PROVIDES NEW NOTICE UNDER SUBSECTION (1)(a) AND AN OPPORTUNITY TO BE
194cb HEARD UNDER SUBSECTION (3)(a) WHEN THE COURT OF COMPETENT JURISDICTION:
194cc (i) ENTERS A FINDING OF NOT GUILTY;
194cd (ii) DISMISSES THE INFORMATION OR INDICTMENT AFTER COMPLIANCE WITH THE
194ce REQUIREMENTS OF A DIVERSION AGREEMENT UNDER SECTION 77-2-6; OR
194cf (iii) DISMISSES THE CASE OR WITHDRAWS A PLEA UNDER SECTION 77-2a-3 AFTER THE
194cg COMPLETION OF A PLEA IN ABEYANCE AGREEMENT FOR A PLEA OF NO CONTEST.
194ch [(b)] (c) An adjudicative proceeding held pursuant to Subsection (4) may be stayed during the
194ci time a judicial action is pending.
194cj (6) Nothing in this section may affect the inclusion or exclusion of a report or finding of child
194ck abuse or neglect from or access by the division, its caseworkers, and child protective services
194cl workers to that part of the management information system used for purposes of child welfare cases
194cm and child protective services as described in Subsections 62A-4a-116(2) and (3).
194cn (7) By December 31, 1998, the division shall provide notice to each person with a finding of
194co abuse or neglect since January 1, 1994.
194cp (8) A person who, after receiving notice, fails to challenge a finding of child abuse or neglect
194cq may request the opportunity to challenge the finding under this section:
194cr (a) if since the time that the person received notice, state law has been amended to permit a
194cs broader use of or access to information on the licensing part of the management information system;
194ct and
194cu (b) before the finding may be used against the person in connection with the broader use or
194cv access. h
195 Section h [ 2. ] 3. h Section 78-3a-106 is amended to read:
196 78-3a-106. Search warrants and subpoenas -- Authority to issue.
197 (1) The court has authority to issue search warrants, subpoenas, or investigative subpoenas
198 in criminal cases, delinquency, and abuse, neglect, and dependency proceedings for the same
199 purposes, in the same manner and pursuant to the same procedures set forth in the code of criminal
200 procedure for the issuance of search warrants, subpoenas, or investigative subpoenas in other trial
201 courts in the state.
202 (2) (a) If it appears to the court upon an affidavit sworn to by a peace officer or any other
203 person, and upon the examination of other witnesses, if required by the judge, that there is probable
204 cause to believe that a child is being ill-treated by his parent, guardian, or custodian, or is being
205 detained, ill-treated, or harbored against the desires of his parent, guardian, or custodian, in any
206 place within the jurisdiction of the court, the court may issue a warrant authorizing a peace officer
207 to search for the child.

208 (b) [The] Pursuant to Section 77-23-210 , the officer making the search may enter a house
209 or premises by force h [ [ ] , if necessary, [ ] ] h in order to remove the child h [ [ ] . [ ] ] [ if
209a necessary to:
210 (i) prevent physical harm, including any type of sexual abuse, to any person; or
211 (ii) prevent an object of the search from being quickly destroyed, disposed of, or secreted. ] h
212 (c) The officer shall then take the child to the place of shelter designated by the court.
213 Section h [ 3. ] 4. h Section 78-3a-301 is amended to read:

214 78-3a-301. Removing a child from his home -- Grounds for removal.
215 (1) The Division of Child and Family Services may not remove a child from the custody
216 of his natural parent unless the division complies with the provisions of Title 62A, Chapter 4a,
217 Child and Family Services, including Subsection 62A-4a-201 (3), and unless there is substantial
218 cause to believe that any one of the following exist:
219 (a) there is a substantial danger to the physical health or safety of the minor and the minor's
220 physical health or safety may not be protected without removing him from his parent's custody.
221 If a minor has previously been adjudicated as abused, neglected, or dependent, and a subsequent
222 incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
223 child cannot safely remain in the custody of his parent;
224 (b) the minor is suffering emotional damage, as may be indicated by, but not limited to,
225 extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
226 and there are no reasonable means available by which the minor's emotional health may be
227 protected without removing the minor from the custody of his parent;
228 (c) (i) the minor or another minor residing in the same household has been physically or
229 sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
230 a parent, a member of the parent's household, or other person known to the parent.
231 (ii) For purposes of this Subsection (1)(c), another minor residing in the same household
232 may not be removed from the home unless that minor is deemed to be at substantial risk of being
233 physically or sexually abused as described in Subsections (1)(c)(i) and (iii).
234 (iii) If a parent has received actual notice that physical or sexual abuse by a person known
235 to the parent has occurred, and there is evidence that the parent has allowed the child to be in the
236 physical presence of the alleged abuser, that fact constitutes prima facie evidence that the child is
237 at substantial risk of being physically or sexually abused;
238 (d) the parent is unwilling to have physical custody of the child;
239 (e) the minor has been left without any provision for his support;
240 (f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
241 safe and appropriate care for the minor;
242 (g) a relative or other adult custodian with whom the minor has been left by the parent is
243 unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
244 unknown, and reasonable efforts to locate him have been unsuccessful;

245 (h) the minor is in immediate need of medical care;
246 (i) the physical environment or the fact that the child is left unattended poses a threat to
247 the child's health or safety;
248 (j) (i) the minor or another minor residing in the same household has been neglected; and
249 (ii) for purposes of Subsection (j)(i), another minor residing in the same household may
250 not be removed unless that minor is deemed to be at substantial risk of being neglected;
251 (k) an infant has been abandoned, as defined in Section 78-3a-313.5 ;
252 (l) the parent, or an adult residing in the same household as the parent, has been charged
253 or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
254 laboratory operation, as defined in Section 58-37d-3 , was located in the residence or on the
255 property where the child resided; or
256 (m) the child's welfare is otherwise endangered, as documented by the caseworker.
257 (2) The Division of Child and Family Services may not remove a minor from the custody
258 of his natural parent solely on the basis of educational neglect.
259 (3) The Division of Child and Family Services shall comply with the provisions of Section
260 62A-4a-202.1 in effecting removal of a child pursuant to this section.
261 (4) (a) A minor removed from the custody of his natural parent under this section may not
262 be placed or kept in a secure detention facility pending court proceedings unless the minor is
263 detainable based on guidelines promulgated by the Division of Youth Corrections.
264 (b) A minor removed from the custody of his natural parent but who does not require
265 physical restriction shall be given temporary care in a shelter facility.
266 Section 4. Section 78-3a-307 is amended to read:
267 78-3a-307. Shelter hearing -- Placement with a noncustodial parent or relative --
268 DCFS custody.
269 (1) (a) At the shelter hearing, when the court orders that a child be removed from the
270 custody of his parent in accordance with the requirements of Section 78-3a-306 , the court shall
271 first determine whether there is another natural parent as defined in Subsection (1)(b), with whom
272 the child was not residing at the time the events or conditions that brought him within the court's
273 jurisdiction occurred, who desires to assume custody of the child. If that parent requests custody,
274 the court shall place the minor with that parent unless it finds that the placement would be unsafe
275 or otherwise detrimental to the child. The provisions of this Subsection (1) are limited by the

276 provisions of Subsection (8)(b).
277 (b) Notwithstanding the provisions of Section 78-3a-103 , for purposes of this section
278 "natural parent" includes only a biological or adoptive mother, an adoptive father, or a biological
279 father who was married to the child's biological mother at the time the child was conceived or
280 born, or who has strictly complied with the provisions of Section 78-30-4.14 prior to removal of
281 the child or voluntary surrender of the child by the custodial parent. This definition applies
282 regardless of whether the child has been or will be placed with adoptive parents or whether
283 adoption has been or will be considered as a long term goal for the child.
284 (c) (i) The court shall make a specific finding regarding the fitness of that parent to assume
285 custody, and the safety and appropriateness of the placement.
286 (ii) The court shall, at a minimum, order the division to visit the parent's home, perform
287 criminal background checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , and check the
288 division's management information system for any previous reports of abuse or neglect received
289 by the division regarding the parent at issue.
290 (iii) The court may order the Division of Child and Family Services to conduct any further
291 investigation regarding the safety and appropriateness of the placement.
292 (iv) The division shall report its findings in writing to the court.
293 (v) The court may place the child in the temporary custody of the division, pending its
294 determination regarding that placement.
295 (2) If the court orders placement with a parent under Subsection (1), the child and the
296 parent are under the continuing jurisdiction of the court. The court may order that the parent
297 assume custody subject to the supervision of the court, and order that services be provided to the
298 parent from whose custody the child was removed, the parent who has assumed custody, or both.
299 The court [may] shall also provide for reasonable visitation with the parent from whose custody
300 the child was removed, [if that] unless visitation is not in the best interest of the child. The court's
301 order shall be periodically reviewed to determine whether:
302 (a) placement with the parent continues to be in the child's best interest;
303 (b) the child should be returned to the original custodial parent;
304 (c) the child should be placed with a relative, pursuant to Subsection (5); or
305 (d) the child should be placed in the custody of the division.
306 (3) The time limitations described in Section 78-3a-311 with regard to reunification

307 efforts, apply to children placed with a previously noncustodial parent in accordance with
308 Subsection (1).
309 (4) Legal custody of the child is not affected by an order entered under Subsection (1) or
310 (2). In order to affect a previous court order regarding legal custody, the party must petition that
311 court for modification of the order.
312 (5) (a) If, at the time of the shelter hearing, a child is removed from the custody of his
313 parent and is not placed in the custody of his other parent, the court shall, at that time, determine
314 whether there is a relative who is able and willing to care for the child. The court may order the
315 Division of Child and Family Services to conduct a reasonable search to determine whether there
316 are relatives of the child who are willing and appropriate, in accordance with the requirements of
317 this part and Title 62A, Chapter 4a, Part 2, Child Welfare Services, for placement of the child. The
318 court shall order the parents to cooperate with the division, within five working days, to provide
319 information regarding relatives who may be able and willing to care for the child. The child may
320 be placed in the temporary custody of the division pending that determination. This section may
321 not be construed as a guarantee that an identified relative will receive custody of the child.
322 However, preferential consideration may be given to a relative's request for placement of the child,
323 if it is in the best interest of the child, and the provisions of this section are satisfied.
324 (b) (i) If a willing relative is identified pursuant to Subsection (5)(a), the court shall make
325 a specific finding regarding the fitness of that relative to assume custody, and the safety and
326 appropriateness of placement with that relative. In order to be considered a "willing relative"
327 under this section, the relative shall be willing to cooperate if the child's permanency goal is
328 reunification with his parent or parents, and be willing to adopt or take permanent custody of the
329 child if that is determined to be in the best interest of the child.
330 (ii) The court shall, at a minimum, order the division to conduct criminal background
331 checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , visit the relative's home, check the
332 division's management information system for any previous reports of abuse or neglect regarding
333 the relative at issue, report its findings in writing to the court, and provide sufficient information
334 so that the court may determine whether:
335 (A) the relative has any history of abusive or neglectful behavior toward other children that
336 may indicate or present a danger to this child;
337 (B) the child is comfortable with the relative;

338 (C) the relative recognizes the parent's history of abuse and is determined to protect the
339 child;
340 (D) the relative is strong enough to resist inappropriate requests by the parent for access
341 to the child, in accordance with court orders;
342 (E) the relative is committed to caring for the child as long as necessary; and
343 (F) the relative can provide a secure and stable environment for the child.
344 (iii) The court may order the Division of Child and Family Services to conduct any further
345 investigation regarding the safety and appropriateness of the placement.
346 (iv) The division shall complete and file its assessment regarding placement with a relative
347 as soon as practicable, in an effort to facilitate placement of the child with a relative.
348 (c) The court may place the child in the temporary custody of the division, pending the
349 division's investigation pursuant to Subsection (5)(b), and the court's determination regarding that
350 placement. The court shall ultimately base its determination regarding placement with a relative
351 on the best interest of the child.
352 (d) For purposes of this section, "relative" means an adult who is a grandparent, great
353 grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, first
354 cousin, stepsibling, or sibling of the child. In the case of a child defined as an "Indian" under the
355 Indian Child Welfare Act, 25 U.S.C. Section 1903, "relative" also means an "extended family
356 member" as defined by that statute.
357 (6) (a) When the court vests physical custody of a child with a relative pursuant to
358 Subsection (5), it shall order that the relative assume custody subject to the continuing supervision
359 of the court, and shall order that any necessary services be provided to the minor and the relative.
360 That child is not within the temporary custody or custody of the Division of Child and Family
361 Services. The child and any relative with whom the child is placed are under the continuing
362 jurisdiction of the court. The court may enter any order that it considers necessary for the
363 protection and best interest of the child. The court shall provide for reasonable visitation with the
364 parent or parents from whose custody the child was removed unless visitation is not in the best
365 interest of the child.
366 (b) (i) Placement with a relative pursuant to Subsection (5) shall be periodically reviewed
367 by the court, no less often than every six months, to determine whether:
368 (A) placement with the relative continues to be in the child's best interest;

369 (B) the child should be returned home; or
370 (C) the child should be placed in the custody of the division.
371 (ii) No later than 12 months after placement with a relative the court shall schedule a
372 hearing for the purpose of entering a permanent order in accordance with the best interest of the
373 child.
374 (iii) The time limitations described in Section 78-3a-311 , with regard to reunification
375 efforts, apply to children placed with a relative pursuant to Subsection (5).
376 (7) When the court orders that a child be removed from the custody of his parent and does
377 not vest custody in another parent or relative under this section, the court shall order that the child
378 be placed in the temporary custody of the Division of Child and Family Services, to proceed to
379 adjudication and disposition and to be provided with care and services in accordance with this
380 chapter and Title 62A, Chapter 4a, Child and Family Services.
381 (8) (a) Any preferential consideration that a relative may be initially granted pursuant to
382 Subsection (5) expires 120 days from the date of the shelter hearing. After that time period has
383 expired, a relative who has not obtained custody or asserted an interest in a child, may not be
384 granted preferential consideration by the division or the court.
385 (b) When the time period described in Subsection (8)(a) has expired, the preferential
386 consideration which may initially be granted to a natural parent in accordance with Subsection (1),
387 is limited. After that time the court shall base its custody decision on the best interest of the child.
388 Section 5. Section 78-3a-311 is amended to read:
389 78-3a-311. Dispositional hearing -- Reunification services -- Exceptions.
390 (1) The court may make any of the dispositions described in Section 78-3a-118 , place the
391 child in the custody or guardianship of any individual or public or private entity or agency, order
392 protective supervision, family preservation, medical or mental health treatment, or other services.
393 (2) (a) (i) Whenever the court orders continued removal at the dispositional hearing, and
394 that the minor remain in the custody of the Division of Child and Family Services, it shall first
395 establish a primary permanency goal for the minor and determine whether, in view of the primary
396 permanency goal, reunification services are appropriate for the child and the child's family,
397 pursuant to Subsection (3).
398 (ii) When the court determines that reunification services are appropriate for the child and
399 the child's family, the court shall provide for reasonable visitation with the parent or parents from

400 whose custody the child was removed, unless visitation is not in the best interest of the child.
401 (iii) In cases where obvious sexual abuse, abandonment, or serious physical abuse or
402 neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
403 or to, in any other way, attempt to provide reunification services, or to attempt to rehabilitate the
404 offending parent or parents. In all cases, the child's health, safety, and welfare shall be the court's
405 paramount concern in determining whether reasonable efforts to reunify should be made.
406 (b) (i) In addition to the primary permanency goal, the court shall establish a concurrent
407 permanency goal. The concurrent permanency goal shall include a representative list of the
408 conditions under which the primary permanency goal will be abandoned in favor of the concurrent
409 permanency goal and an explanation of the effect of abandoning or modifying the primary
410 permanency goal.
411 (ii) A permanency hearing shall be conducted in accordance with Subsection
412 78-3a-312 (1)(b) within 30 days if something other than reunification is initially established as a
413 child's primary permanency goal.
414 (iii) The court may amend a child's primary permanency goal before the establishment of
415 a final permanency plan under Section 78-3a-312 . The court is not limited to the terms of the
416 concurrent permanency goal in the event that the primary permanency goal is abandoned. If, at
417 anytime, the court determines that reunification is no longer a child's primary permanency goal,
418 the court shall conduct a permanency hearing in accordance with Section 78-3a-312 within the
419 earlier of 30 days of the court's determination or 12 months from the original removal of the child.
420 (c) If the court determines that reunification services are appropriate, it shall order that the
421 division make reasonable efforts to provide services to the minor and his parent for the purpose
422 of facilitating reunification of the family, for a specified period of time. In providing those
423 services, the child's health, safety, and welfare shall be the division's paramount concern, and the
424 court shall so order. The time period for reunification services may not exceed 12 months from
425 the date that the child was initially removed from his home. Nothing in this section may be
426 construed to entitle any parent to an entire 12 months of reunification services. If reunification
427 services have been ordered, the court may terminate those services at any time. If, at any time,
428 continuation of reasonable efforts to reunify a child is determined to be inconsistent with the final
429 permanency plan for the child established pursuant to Subsection 78-3a-312 , then measures shall
430 be taken, in a timely manner, to place the child in accordance with the permanency plan, and to

431 complete whatever steps are necessary to finalize the permanent placement of the child.
432 (d) Any physical custody of the minor by the parent or a relative during the period
433 described in Subsection (2)(c) does not interrupt the running of the period.
434 (e) (i) If reunification services have been ordered, a permanency hearing shall be
435 conducted by the court in accordance with Section 78-3a-312 at the expiration of the time period
436 for reunification services. The permanency hearing shall be held no later than 12 months after the
437 original removal of the child.
438 (ii) If reunification services have not been ordered, a permanency hearing shall be
439 conducted within 30 days, in accordance with Section 78-3a-312 .
440 (f) With regard to a child who is two years of age or younger at the time the court orders
441 reunification services, the court shall order the discontinuance of those services after six months
442 if the parent or parents have not made substantial efforts to comply with the treatment plan. The
443 burden is upon the parents, and the division if it supports continued reunification services, to show
444 that the parents have made substantial efforts to comply with the plan during the first six months
445 of reunification services.
446 (g) With regard to a child in the custody of the division whose parent or parents have been
447 ordered to receive reunification services but who have abandoned that child for a period of six
448 months since the date that reunification services were ordered, the court shall terminate
449 reunification services, and the division shall petition the court for termination of parental rights.
450 (3) (a) Because of the state's interest in and responsibility to protect and provide
451 permanency for children who are abused, neglected, or dependent, the Legislature finds that a
452 parent's interest in receiving reunification services is limited. The court may, under any
453 circumstances, determine that efforts to reunify a child with his family are not reasonable or
454 appropriate, based on the individual circumstances, and that reunification services should not be
455 provided. In determining "reasonable efforts" to be made with respect to a child, and in making
456 "reasonable efforts," the child's health, safety, and welfare shall be the paramount concern.
457 (b) There is a presumption that reunification services should not be provided to a parent
458 if the court finds, by clear and convincing evidence, that any of the following circumstances exist:
459 (i) the whereabouts of the parents are unknown, based upon a verified affidavit indicating
460 that a reasonably diligent search has failed to locate the parent;
461 (ii) the parent is suffering from a mental illness of such magnitude that it renders him

462 incapable of utilizing reunification services; that finding shall be based on competent evidence
463 from mental health professionals establishing that, even with the provision of services, the parent
464 is unlikely to be capable of adequately caring for the child within 12 months;
465 (iii) the minor has been previously adjudicated as an abused child due to physical or sexual
466 abuse, that following the adjudication the child was removed from the custody of his parent, was
467 subsequently returned to the custody of that parent, and the minor is being removed due to
468 additional physical or sexual abuse;
469 (iv) the parent has caused the death of another child through abuse or neglect or has
470 committed, aided, abetted, attempted, conspired, or solicited to commit murder or manslaughter
471 of a child or child abuse homicide;
472 (v) the minor has suffered severe abuse by the parent or by any person known by the
473 parent, if the parent knew or reasonably should have known that the person was abusing the minor;
474 (vi) the minor has been adjudicated an abused child as a result of severe abuse by the
475 parent, and the court finds that it would not benefit the child to pursue reunification services with
476 the offending parent;
477 (vii) the parent's rights have been terminated with regard to any other child;
478 (viii) the child has been removed from his home on at least two previous occasions and
479 reunification services were offered or provided to the family at those times; or
480 (ix) the parent has abandoned the child for a period of six months or longer; or
481 (x) any other circumstance that the court determines should preclude reunification efforts
482 or services.
483 (4) (a) Failure of the parent to respond to previous services or comply with any previous
484 treatment plan, the fact that the child was abused while the parent was under the influence of drugs
485 or alcohol, a past history of violent behavior, whether a parent continues to live with an individual
486 who abused the child, any patterns of the parent's behavior that have exposed the child to repeated
487 abuse, or testimony by a competent professional that the parent's behavior is unlikely to be
488 successful, shall be considered in determining whether reunification services are appropriate.
489 (b) The court shall also consider whether the parent has expressed an interest in
490 reunification with the child, in determining whether reunification services are appropriate.
491 (5) If reunification services are not ordered pursuant to Subsection (3)(a), and the
492 whereabouts of a parent become known within six months of the out-of-home placement of the

493 minor, the court may order the division to provide reunification services. The time limits
494 described in Subsection (2), however, are not tolled by the parent's absence.
495 (6) If a parent is incarcerated or institutionalized, the court shall order reasonable services
496 unless it determines that those services would be detrimental to the minor. In determining
497 detriment, the court shall consider the age of the child, the degree of parent-child bonding, the
498 length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of
499 detriment to the child if services are not offered and, for minors ten years of age or older, the
500 minor's attitude toward the implementation of family reunification services, and any other
501 appropriate factors. Reunification services for an incarcerated parent are subject to the 12-month
502 limitation imposed in Subsection (2). Reunification services for an institutionalized parent are
503 subject to the 12-month limitation imposed in Subsection (2), unless the court determines that
504 continued reunification services would be in the child's best interest.
505 (7) If, pursuant to Subsection (3)(b)(ii), (iii), (iv),(v), (vi), (vii), (viii), (ix), or (x), the court
506 does not order reunification services, a permanency hearing shall be conducted within 30 days, in
507 accordance with Section 78-3a-312 .
507a h SECTION 6. COORDINATION CLAUSE.
507b IF THIS BILL AND S.B. 165, NONCUSTODIAL VISITATION, BOTH PASS, IT IS THE INTENT OF
507c THE LEGISLATURE THAT THE AMENDMENTS IN S.B. 165 WHICH CHANGE THE TERM "VISITATION"
507d TO "PARENT TIME" SUPERSEDE THE AMENDMENTS IN SUBSECTIONS 78-3a-307(2) AND (6) AND
507e SUBSECTION 78-3a-311(2) OF THIS BILL WHICH USE THE CURRENT STATUTORY TERM
507f "VISITATION". h




Legislative Review Note
as of 1-11-01 8:32 AM

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

Office of Legislative Research and General Counsel