S.B. 153

1

KINSHIP PLACEMENT FOR FOSTER
2 CHILDREN
3 2001 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Bill Wright
6 This act amends the Judicial Code and the Human Services Code to authorize the Division
7 of Child and Family Services to place a child in an emergency kinship placement rather than
8 shelter care prior to a shelter hearing. The act expands the requirement for a shelter hearing
9 to include after an emergency kinship placement, after a parent has entered a domestic
10 violence shelter at the request of the division, and after a parent has been asked by the
11 division to leave the home. The act expands the circumstances in which the division must
12 conduct a postremoval investigation.
13 This act affects sections of Utah Code Annotated 1953 as follows:
14 AMENDS:
15 62A-4a-202.3, as last amended by Chapters 274 and 321, Laws of Utah 2000
16 78-3a-301, as last amended by Chapter 274, Laws of Utah 2000
17 78-3a-306, as last amended by Chapter 274, Laws of Utah 2000
18 ENACTS:
19 62A-4a-209, Utah Code Annotated 1953
20 Be it enacted by the Legislature of the state of Utah:
21 Section 1. Section 62A-4a-202.3 is amended to read:
22 62A-4a-202.3. Investigation -- Substantiation of reports -- Child in protective
23 custody.
24 (1) When a child is taken into protective custody in accordance with Sections
25 62A-4a-202.1 and 78-3a-301 , or when the division takes any other action which would require a
26 shelter hearing under Subsection 78-3a-306 (1), the Division of Child and Family Services shall
27 immediately initiate a postremoval investigation of the circumstances of the minor and the facts

28 surrounding his being taken into protective custody.
29 (2) The division's postremoval investigation shall include, among other actions necessary
30 to meet reasonable professional standards:
31 (a) a search for and review of any records of past reports of abuse or neglect involving the
32 same child, any sibling or other child residing in that household, and the alleged perpetrator;
33 (b) with regard to a child who is five years of age or older, a personal interview with the
34 child outside of the presence of the alleged perpetrator, conducted in accordance with the
35 requirements of Subsection (7);
36 (c) an interview with the child's natural parents or other guardian, unless their whereabouts
37 are unknown;
38 (d) an interview with the person who reported the abuse, unless anonymous;
39 (e) where possible and appropriate, interviews with other third parties who have had direct
40 contact with the child, including school personnel and the child's health care provider;
41 (f) an unscheduled visit to the child's home, unless the division has reasonable cause to
42 believe that the reported abuse was committed by a person who does not:
43 (i) live in the child's home; or
44 (ii) have access to the child; and
45 (g) if appropriate and indicated in any case alleging physical injury, sexual abuse, or failure
46 to meet the child's medical needs, a medical examination. That examination shall be obtained no
47 later than 24 hours after the child was placed in protective custody.
48 (3) The division may rely on a written report of a prior interview rather than conducting
49 an additional interview, if:
50 (a) law enforcement has previously conducted a timely and thorough investigation
51 regarding the alleged abuse or neglect and has produced a written report;
52 (b) that investigation included one or more of the interviews required by Subsection (2);
53 and
54 (c) the division finds that an additional interview is not in the best interest of the child.
55 (4) (a) With regard to both pre and postremoval, the division's determination of whether
56 a report is substantiated or unsubstantiated may be based on the child's statements alone.
57 (b) Inability to identify or locate the perpetrator may not be used by the division as a basis
58 for determining that a report is unsubstantiated, or for closing the case.

59 (c) The division may not determine a case to be unsubstantiated or identify a case as
60 unsubstantiated solely because the perpetrator was an out-of-home perpetrator.
61 (d) Decisions regarding whether a report is substantiated, unsubstantiated, or without merit
62 shall be based on the facts of the case at the time the report was made.
63 (5) The division should maintain protective custody of the child if it finds that one or more
64 of the following conditions exist:
65 (a) the minor has no natural parent, guardian, or responsible relative who is able and
66 willing to provide safe and appropriate care for the minor;
67 (b) shelter of the minor is a matter of necessity for the protection of the minor and there
68 are no reasonable means by which the minor can be protected in his home or the home of a
69 responsible relative;
70 (c) there is substantial evidence that the parent or guardian is likely to flee the jurisdiction
71 of the court; or
72 (d) the minor has left a previously court ordered placement.
73 (6) (a) Within 24 hours after receipt of a child into protective custody, excluding weekends
74 and holidays, the Division of Child and Family Services shall convene a child protection team to
75 review the circumstances regarding removal of the child from his home, and prepare the testimony
76 and evidence that will be required of the division at the shelter hearing, in accordance with Section
77 78-3a-306 .
78 (b) Members of that team shall include:
79 (i) the caseworker assigned to the case and the caseworker who made the decision to
80 remove the child;
81 (ii) a representative of the school or school district in which the child attends school;
82 (iii) the peace officer who removed the child from the home;
83 (iv) a representative of the appropriate Children's Justice Center, if one is established
84 within the county where the child resides;
85 (v) if appropriate, and known to the division, a therapist or counselor who is familiar with
86 the child's circumstances; and
87 (vi) any other individuals as determined to be appropriate and necessary by the team
88 coordinator and chair.
89 (c) At that 24-hour meeting, the division shall have available for review and consideration,

90 the complete child protective services and foster care history of the child and the child's parents
91 and siblings.
92 (7) After receipt of a child into protective custody and prior to the adjudication hearing,
93 all investigative interviews with the child that are initiated by the division shall be audio or video
94 taped, and the child shall be allowed to have a support person of the child's choice present. That
95 support person may not be an alleged perpetrator.
96 (8) The division shall cooperate with law enforcement investigations regarding the alleged
97 perpetrator.
98 (9) The division may not close an investigation solely on the grounds that the division
99 investigator is unable to locate the child, until all reasonable efforts have been made to locate the
100 child and family members. Those efforts include:
101 (a) visiting the home at times other than normal work hours;
102 (b) contacting local schools;
103 (c) contacting local, county, and state law enforcement agencies; and
104 (d) checking public assistance records.
105 Section 2. Section 62A-4a-209 is enacted to read:
106 62A-4a-209. Emergency kinship placement.
107 (1) The division may use an emergency kinship placement under Subsection 78-3a-301 (4)
108 when:
109 (a) the case worker has made the determination that:
110 (i) the child's home is unsafe;
111 (ii) removal is necessary under the provisions of Section 78-3a-301; and
112 (iii) the child's custodial parent or guardian will agree to not remove the child from the
113 relative's home who serves as the kinship placement and not have any contact with the child until
114 after the shelter hearing required by Section 78-3a-306 ;
115 (b) a relative can be identified who has the ability and is willing to provide care for the
116 child who would otherwise be placed in shelter care, including:
117 (i) taking the child to medical, mental health, dental, and educational appointments at the
118 request of the division; and
119 (ii) the relative has the ability to make the child available to division services and the
120 guardian ad litem; and

121 (c) the relative agrees to care for the child on an emergency basis under the following
122 conditions:
123 (i) the relative meets the criteria for an emergency kinship placement under Subsection (2);
124 (ii) the relative agrees to not allow the custodial parent or guardian to have any contact
125 with the child until after the shelter hearing unless authorized by the division in writing;
126 (iii) the relative agrees to contact law enforcement and the division if the custodial parent
127 or guardian attempts to make unauthorized contact with the child;
128 (iv) the relative agrees to allow the division and the child's guardian ad litem to have
129 access to the child;
130 (v) the relative has been informed and understands that the division may continue to search
131 for other possible kinship placements for long-term care, if needed;
132 (vi) the relative is willing to assist the custodial parent or guardian in reunification efforts
133 at the request of the division, and to follow all court orders; and
134 (vii) the child is comfortable with the relative.
135 (2) Before the division places a child in an emergency kinship placement, the division
136 must:
137 (a) request the name of a reference and when possible, contact the reference and determine
138 the answer to the following questions:
139 (i) would the person identified as a reference place a child in the home of the emergency
140 kinship placement; and
141 (ii) are there any other relatives to consider as a possible emergency or long-term
142 placement for the child;
143 (b) have the custodial parent or guardian sign an emergency kinship placement agreement
144 form during the investigation;
145 (c) complete a criminal background check described in Sections 62A-4a-202.4 and
146 78-3a-307.1 on all persons living in the relative's household;
147 (d) complete a home inspection of the relative's home; and
148 (e) have the emergency kinship placement approved by a family service specialist.
149 (3) As soon as possible after the emergency placement and prior to the shelter hearing
150 required by Section 78-3a-306 , the division shall convene a family unity meeting.
151 (4) After an emergency kinship placement, the division caseworker must:

152 (a) respond to the emergency kinship placement's calls within one hour if the custodial
153 parents or guardians attempt to make unauthorized contact with the child or attempt to remove the
154 child;
155 (b) complete all removal paperwork, including the notice provided to the custodial parents
156 and guardians under Section 78-3a-306 ;
157 (c) contact the attorney general to schedule a shelter hearing;
158 (d) complete the kinship procedures required in Section 78-3a-307 ; and
159 (e) continue to search for other relatives as a possible long-term placement, if needed.
160 Section 3. Section 78-3a-301 is amended to read:
161 78-3a-301. Removing a child from his home -- Grounds for removal.
162 (1) The Division of Child and Family Services may not remove a child from the custody
163 of his natural parent unless there is substantial cause to believe that any one of the following exist:
164 (a) there is a substantial danger to the physical health or safety of the minor and the minor's
165 physical health or safety may not be protected without removing him from his parent's custody.
166 If a minor has previously been adjudicated as abused, neglected, or dependent, and a subsequent
167 incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
168 child cannot safely remain in the custody of his parent;
169 (b) the minor is suffering emotional damage, as may be indicated by, but not limited to,
170 extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
171 and there are no reasonable means available by which the minor's emotional health may be
172 protected without removing the minor from the custody of his parent;
173 (c) the minor or another minor residing in the same household has been physically or
174 sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
175 a parent, a member of the parent's household, or other person known to the parent. If a parent has
176 received actual notice that physical or sexual abuse by a person known to the parent has occurred,
177 and there is evidence that the parent has allowed the child to be in the physical presence of the
178 alleged abuser, that fact constitutes prima facie evidence that the child is at substantial risk of
179 being physically or sexually abused;
180 (d) the parent is unwilling to have physical custody of the child;
181 (e) the minor has been left without any provision for his support;
182 (f) a parent who has been incarcerated or institutionalized has not or cannot arrange for

183 safe and appropriate care for the minor;
184 (g) a relative or other adult custodian with whom the minor has been left by the parent is
185 unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
186 unknown, and reasonable efforts to locate him have been unsuccessful;
187 (h) the minor is in immediate need of medical care;
188 (i) the physical environment or the fact that the child is left unattended poses a threat to
189 the child's health or safety;
190 (j) the minor or another minor residing in the same household has been neglected;
191 (k) an infant has been abandoned, as defined in Section 78-3a-313.5 ;
192 (l) the parent, or an adult residing in the same household as the parent, has been charged
193 or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
194 laboratory operation, as defined in Section 58-37d-3 , was located in the residence or on the
195 property where the child resided; or
196 (m) the child's welfare is otherwise endangered, as documented by the caseworker.
197 (2) The Division of Child and Family Services may not remove a minor from the custody
198 of his natural parent solely on the basis of educational neglect.
199 (3) The Division of Child and Family Services shall comply with the provisions of Section
200 62A-4a-202.1 in effecting removal of a child pursuant to this section.
201 (4) (a) A minor removed from the custody of his natural parent under this section may not
202 be placed or kept in a secure detention facility pending court proceedings unless the minor is
203 detainable based on guidelines promulgated by the Division of Youth Corrections.
204 (b) A minor removed from the custody of his natural parent but who does not require
205 physical restriction shall be given temporary care in:
206 (i) a shelter facility[.]; or
207 (ii) an emergency kinship placement in accordance with Section 62A-4a-209 .
208 Section 4. Section 78-3a-306 is amended to read:
209 78-3a-306. Shelter hearing.
210 (1) [With regard to a child who has been removed by the Division of Child and Family
211 Services, or who is in the protective custody of the division, a] A shelter hearing shall be held
212 within 72 hours [after removal of the child from his home,] excluding weekends and holidays[.]
213 after:

214 (a) removal of the child from his home by the Division of Child and Family Services;
215 (b) placement of the child in the protective custody of the Division of Child and Family
216 Services;
217 (c) emergency kinship placement under Subsection 78-3a-301 (4)(b)(ii);
218 (d) a parent or guardian has been requested by the Division of Child and Family Services
219 to leave the child's home; or
220 (e) a parent has entered a domestic violence shelter at the request of the Division of Child
221 and Family Services.
222 (2) Upon [removal of a child from his home and receipt of that child into protective
223 custody] the occurrence of any of the circumstances described in Subsections (1)(a) through (1)(e),
224 the division shall issue a notice that contains all of the following:
225 (a) the name and address of the person to whom the notice is directed;
226 (b) the date, time, and place of the shelter hearing;
227 (c) the name of the minor on whose behalf a petition is being brought;
228 (d) a concise statement regarding:
229 (i) the reasons for removal[,] or other action of the division under Subsection (1); and [of]
230 (ii) the allegations and code sections under which the proceeding has been instituted;
231 (e) a statement that the parent or guardian to whom notice is given, and the minor, are
232 entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
233 indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
234 provided; and
235 (f) a statement that the parent or guardian is liable for the cost of support of the minor in
236 the protective custody, temporary custody, and custody of the division, and the cost for legal
237 counsel appointed for the parent or guardian under Subsection (2)(e), according to his financial
238 ability.
239 (3) That notice shall be personally served as soon as possible, but no later than one
240 business day after removal of a child from his home, on:
241 (a) the appropriate guardian ad litem; and
242 (b) both parents and any guardian of the minor, unless they cannot be located.
243 (4) The following persons shall be present at the shelter hearing:
244 (a) the child, unless it would be detrimental for the child;

245 (b) the child's parents or guardian, unless they cannot be located, or fail to appear in
246 response to the notice;
247 (c) counsel for the parents, if one has been requested;
248 (d) the child's guardian ad litem;
249 (e) the caseworker from the Division of Child and Family Services who has been assigned
250 to the case; and
251 (f) the attorney from the attorney general's office who is representing the division.
252 (5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's parent
253 or guardian, if present, and any other person having relevant knowledge, to provide relevant
254 testimony. The court may also provide an opportunity for the minor to testify.
255 (b) The court may consider all relevant evidence, in accordance with the Utah Rules of
256 Juvenile Procedure. The court shall hear relevant evidence presented by the minor, his parent or
257 guardian, the requesting party, or their counsel, but may in its discretion limit testimony and
258 evidence to only that which goes to the issues of removal and the child's need for continued
259 protection.
260 (6) If the child is in the protective custody of the division, the division shall report to the
261 court:
262 (a) the reasons why the minor was removed from the parent's or guardian's custody;
263 (b) any services provided to the child and his family in an effort to prevent removal;
264 (c) the need, if any, for continued shelter;
265 (d) the available services that could facilitate the return of the minor to the custody of his
266 parent or guardian; and
267 (e) whether the child has any relatives who may be able and willing to take temporary
268 custody.
269 (7) The court shall consider all relevant evidence provided by persons or entities
270 authorized to present relevant evidence pursuant to this section.
271 (8) If necessary to protect the child, preserve the rights of a party, or for other good cause
272 shown, the court may grant no more than one time-limited continuance, not to exceed five judicial
273 days.
274 (9) [The] If the child is in the protective custody of the division, the court shall order that
275 the minor be released from the protective custody of the division unless it finds, by a

276 preponderance of the evidence, that any one of the following exist:
277 (a) there is a substantial danger to the physical health or safety of the minor and the minor's
278 physical health or safety may not be protected without removing him from his parent's custody.
279 If a minor has previously been adjudicated as abused, neglected, or dependent and a subsequent
280 incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
281 child cannot safely remain in the custody of his parent;
282 (b) the minor is suffering emotional damage, as may be indicated by, but is not limited to,
283 extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
284 and there are no reasonable means available by which the minor's emotional health may be
285 protected without removing the minor from the custody of his parent;
286 (c) the minor or another minor residing in the same household has been physically or
287 sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
288 a parent, a member of the parent's household, or other person known to the parent. If a parent has
289 received actual notice that physical or sexual abuse by a person known to the parent has occurred,
290 and there is evidence that the parent has allowed the child to be in the physical presence of the
291 alleged abuser, that fact constitutes prima facie evidence that the child is at substantial risk of
292 being physically or sexually abused;
293 (d) the parent is unwilling to have physical custody of the child;
294 (e) the minor has been left without any provision for his support;
295 (f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
296 safe and appropriate care for the minor;
297 (g) a relative or other adult custodian with whom the minor has been left by the parent is
298 unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
299 unknown, and reasonable efforts to locate him have been unsuccessful;
300 (h) the minor is in immediate need of medical care;
301 (i) the physical environment or the fact that the child is left unattended poses a threat to
302 the child's health or safety;
303 (j) the minor or another minor residing in the same household has been neglected;
304 (k) the parent, or an adult residing in the same household as the parent, has been charged
305 or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
306 laboratory operation, as defined in Section 58-37d-3 , was located in the residence or on the

307 property where the child resided; or
308 (l) the child's welfare is otherwise endangered.
309 (10) (a) The court shall also make a determination on the record as to whether reasonable
310 efforts were made to prevent or eliminate the need for removal of the minor from his home and
311 whether there are available services that would prevent the need for continued removal. If the
312 court finds that the minor can be safely returned to the custody of his parent or guardian through
313 the provision of those services, it shall place the minor with his parent or guardian and order that
314 those services be provided by the division.
315 (b) In making that determination, and in ordering and providing services, the child's health,
316 safety, and welfare shall be the paramount concern, in accordance with federal law.
317 (11) Where the division's first contact with the family occurred during an emergency
318 situation in which the child could not safely remain at home, the court shall make a finding that
319 any lack of preplacement preventive efforts was appropriate.
320 (12) In cases where actual sexual abuse or abandonment, or serious physical abuse or
321 neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
322 or to, in any other way, attempt to maintain a child in his home, return a child to his home, provide
323 reunification services, or attempt to rehabilitate the offending parent or parents.
324 (13) The court may not order continued removal of a minor solely on the basis of
325 educational neglect as described in Subsection 78-3a-103 (1)(r)(ii).
326 (14) (a) Whenever a court orders continued removal of a minor under this section, it shall
327 state the facts on which that decision is based.
328 (b) If no continued removal is ordered and the minor is returned home, the court shall state
329 the facts on which that decision is based.
330 (15) If the court finds that continued removal and temporary custody are necessary for the
331 protection of a child because harm may result to the child if he were returned home, it shall order
332 continued removal regardless of any error in the initial removal of the child, or the failure of a
333 party to comply with notice provisions, or any other procedural requirement of this chapter or Title
334 62A, Chapter 4a, Child and Family Services.

Legislative Review Note
as of 1-19-01 3:43 PM

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

Office of Legislative Research and General Counsel