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H.B. 295

             1     

TAKING MINOR INTO PROTECTIVE

             2     
CUSTODY WITHOUT WARRANT

             3     
2002 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Thomas V. Hatch

             6      This act amends the Human Services Code and the Judicial Code. The act provides that a
             7      state officer, peace officer, or child welfare worker may not remove a minor from the minor's
             8      home or school or take the minor into protective custody without a warrant or court order
             9      unless a parent or guardian consents, or there is probable cause to believe that any one or
             10      more of enumerated circumstances exist h [ and the circumstances present a substantial,
             11      immediate threat to the health or safety of the minor ] h . The act allows a juvenile court judge
             12      to authorize a child protective services worker to execute a warrant. The act amends and
             13      clarifies the grounds for a court ordering that a minor be removed from the minor's home
             14      or otherwise taken into protective custody, after the filing of a petition alleging abuse,
             15      neglect, or dependency. The act makes technical changes. The act provides an effective date.
             16      This act affects sections of Utah Code Annotated 1953 as follows:
             17      AMENDS:
             18          62A-4a-202.1, as last amended by Chapter 167, Laws of Utah 2001
             19          62A-4a-202.3, as last amended by Chapters 208 and 250, Laws of Utah 2001
             20          62A-4a-209, as enacted by Chapter 250, Laws of Utah 2001
             21          62A-4a-409, as last amended by Chapter 208, Laws of Utah 2001
             22          78-3a-106, as last amended by Chapter 153, Laws of Utah 2001
             23          78-3a-301 [(Subsection (1)(m) Repealed 07/01/02)], as last amended by Chapters 153
             24      and 250, Laws of Utah 2001
             25          78-3a-306, as last amended by Chapter 250, Laws of Utah 2001
             26      Be it enacted by the Legislature of the state of Utah:
             27          Section 1. Section 62A-4a-202.1 is amended to read:

             28           62A-4a-202.1. Taking a minor into protective custody without warrant -- Peace
             29      officer -- Division of Child and Family Services caseworker -- Immediate threat -- Shelter
             30      care or emergency kinship.
             31          (1) A state officer, peace officer, or child welfare worker may not, without a warrant or
             32      court order issued under Section 78-3a-106 , remove a [child] minor from the [child's] minor's
             33      home or school, or take [a child] a minor into protective custody [without a warrant or court order
             34      issued under Section 78-3a-106 ] unless:
             35          [(a) the state officer, peace officer, or child welfare worker has reasonable grounds to
             36      believe that the exigent circumstances described in Section 78-3a-301 , which defines substantial
             37      danger to a child's health or safety, exist; and]
             38          (a) a parent or guardian consents; or
             39      h [ (b) h THE OFFICER OR WORKER HAS, AT THE TIME, PROBABLE CAUSE TO BELIEVE THAT: h
             39a           (i) h [there is probable cause to believe that] h one or more of the circumstances identified
             40      in Subsection 78-3a-301 (1) exist;
             41          (ii) the circumstance or circumstances referred to in Subsection (1)(b)(i) present a
             42      substantial, immediate threat to the health or safety of the minor; and
             43          (iii) there are no services reasonably available that would eliminate the need for removal. ]
             43a          (b) S THE OFFICER OR WORKER HAS, AT THE TIME, PROBABLE CAUSE TO BELIEVE THAT s
             43a-1      ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES EXIST:
             43b          (i) THERE IS IMMINENT DANGER TO THE PHYSICAL HEALTH OR SAFETY OF THE MINOR,
             43c      AND THE MINOR'S PHYSICAL HEALTH OR SAFETY MAY NOT BE PROTECTED WITHOUT REMOVING
             43d      S [HIM FROM HIS PARENT'S CUSTODY] THE MINOR FROM THE CUSTODY OF THE MINOR'S PARENT
             43d-1      OR GUARDIAN s ;
             43e          ( ii) THERE IS A SUBSTANTIAL RISK TO THE MINOR OF BEING PHYSICALLY OR SEXUALLY
             43f      ABUSED BY A PARENT S OR GUARDIAN s , A MEMBER OF THE PARENT'S S OR GUARDIAN'S s
             43f-1      HOUSEHOLD, OR S [ OTHER ] ANOTHER s PERSON KNOWN
             43g      TO THE PARENT S OR GUARDIAN s ;
             43h          (iii) THE PARENT S OR GUARDIAN s IS UNWILLING TO HAVE PHYSICAL CUSTODY OF THE S
             43h-1      [ CHILD ] MINOR s ;
             43i          (iv) THE MINOR HAS BEEN S [ LEFT ] ABANDONED s WITHOUT ANY PROVISION FOR THE
             43i-1      MINOR'S SUPPORT;
             43j           (v) A PARENT WHO HAS BEEN INCARCERATED OR INSTITUTIONALIZED HAS NOT S ARRANGED s OR
             43k      CANNOT ARRANGE FOR
             43l      SAFE AND APPROPRIATE CARE FOR THE MINOR;
             43m          (vi) A RELATIVE OR OTHER ADULT CUSTODIAN WITH WHOM THE PARENT S OR GUARDIAN s
             43m-1      HAS LEFT THE
             43n      MINOR IS UNWILLING OR UNABLE TO PROVIDE CARE OR SUPPORT FOR THE MINOR, THE
             43o      WHEREABOUTS OF THE PARENT S OR GUARDIAN s ARE UNKNOWN, AND REASONABLE EFFORTS
             43o-1      TO LOCATE THE

             43p      PARENT S OR GUARDIAN s HAVE BEEN UNSUCCESSFUL; OR
             43q          (vii) AN INFANT HAS BEEN ABANDONED, AS DEFINED IN SECTION 78-3a-313.5. h
             44          [(b)] (2) [the removal of the child or placement of the child] A state officer, peace officer,
             45      or child welfare worker may not remove a minor from the minor's home or school or take a minor
             46      into protective custody [is not] under Subsection (1) if motivated [purely] solely by an intent to
             47      seize or obtain evidence unrelated to the potential abuse or neglect allegation.


             48          ( 3) In the absence of circumstances that demonstrate a substantial, immediate threat to the
             49      health or safety of a minor, a state officer, peace officer, or child welfare worker may not remove
             50      a minor from the minor's home or school or take a minor into protective custody under Subsection
             51      (1) on the basis of:
             52          (a) mental illness or poverty of the parent or guardian; or
             53          (b) educational S [h OR MEDICAL h] s neglect.
             54          [(2)] (4) [(a)] A child welfare worker within the division [of Child and Family Services]
             55      may take [and maintain protective custody of a minor, without a warrant, in accordance with the
             56      requirements of this section and Section 78-3a-301 when] action under Subsection (1)
             57      accompanied by a peace officer, or without a peace officer[,] when a peace officer is not
             58      reasonably available.

             59          [(b)] (5) If possible, consistent with the [child's] minor's safety and welfare, before taking
             60      a [child] minor into protective custody, the worker shall also determine whether there are services
             61      reasonably available to the worker which, if provided to the minor's parent or to the minor, would
             62      eliminate the need to remove the minor from the custody of [his] the minor's parent [ in accordance
             63      with the provisions and limitations of Section 78-3a-301 ] or guardian. If those services are
             64      reasonably available, they shall be utilized. In determining whether services are reasonably
             65      available, and in making reasonable efforts to provide those services, the [child's] minor's health,
             66      safety, and welfare shall be the worker's paramount concern.
             67          [(c) (i) Except as provided in Subsection (2)(c)(ii), if a child welfare worker determines
             68      that there is substantial cause to believe that one or more of the factors described in Section
             69      78-3a-301 exist and determines, pursuant to Subsection (2)(b), that services are not reasonably
             70      available to eliminate the need for removal, the child welfare worker may proceed with removal
             71      of the child after the worker has reviewed the reasons for removal and other available options with
             72      a family services specialist within the division.]
             73          [(ii) The provisions of Subsection (2)(c)(i) requiring a family services specialist's review
             74      prior to removal of a child do not apply and are not necessary if, in the child welfare worker's
             75      opinion, that process would create a delay that may endanger the health, safety, or welfare of the
             76      child.]
             77          [(iii) From its existing staff, the division shall train and appoint family services specialists
             78      who are available 24 hours a day, seven days a week, to perform the duties described in Subsection
             79      (2)(c)(i).]
             80          (6) (a) A minor removed or taken into custody under this section may not be placed or kept
             81      in a secure detention facility pending court proceedings unless the minor is detainable based on
             82      guidelines promulgated by the Division of Youth Corrections.
             83          (b) A minor removed from the custody of the minor's parent or guardian but who does not
             84      require physical restriction shall be given temporary care in:
             85          (i) a shelter facility; or
             86          (ii) an emergency kinship placement in accordance with Section 62A-4a-209 .
             87          Section 2. Section 62A-4a-202.3 is amended to read:
             88           62A-4a-202.3. Investigation -- Substantiation of reports -- Child in protective
             89      custody.

             90          (1) When a child is taken into protective custody in accordance with [Sections] Section
             91      62A-4a-202.1 [and], 78-3a-106 , or 78-3a-301 , or when the division takes any other action which
             92      would require a shelter hearing under Subsection 78-3a-306 (1), the [Division of Child and Family
             93      Services] division shall immediately initiate an investigation of the circumstances of the minor and
             94      the facts surrounding [his] the minor's being taken into protective custody.
             95          (2) The division's investigation shall include, among other actions necessary to meet
             96      reasonable professional standards:
             97          (a) a search for and review of any records of past reports of abuse or neglect involving the
             98      same child, any sibling or other child residing in that household, and the alleged perpetrator;
             99          (b) with regard to a child who is five years of age or older, a personal interview with the
             100      child outside of the presence of the alleged perpetrator, conducted in accordance with the
             101      requirements of Subsection (7);
             102          (c) an interview with the child's natural parents or other guardian, unless their whereabouts
             103      are unknown;
             104          (d) an interview with the person who reported the abuse, unless anonymous;
             105          (e) where possible and appropriate, interviews with other third parties who have had direct
             106      contact with the child, including school personnel and the child's health care provider;
             107          (f) an unscheduled visit to the child's home, unless the division has reasonable cause to
             108      believe that the reported abuse was committed by a person who does not:
             109          (i) live in the child's home; or
             110          (ii) have access to the child; and
             111          (g) if appropriate and indicated in any case alleging physical injury, sexual abuse, or failure
             112      to meet the child's medical needs, a medical examination. That examination shall be obtained no
             113      later than 24 hours after the child was placed in protective custody.
             114          (3) The division may rely on a written report of a prior interview rather than conducting
             115      an additional interview, if:
             116          (a) law enforcement has previously conducted a timely and thorough investigation
             117      regarding the alleged abuse or neglect and has produced a written report;
             118          (b) that investigation included one or more of the interviews required by Subsection (2);
             119      and
             120          (c) the division finds that an additional interview is not in the best interest of the child.

             121          (4) (a)The division's determination of whether a report is substantiated or unsubstantiated
             122      may be based on the child's statements alone.
             123          (b) Inability to identify or locate the perpetrator may not be used by the division as a basis
             124      for determining that a report is unsubstantiated, or for closing the case.
             125          (c) The division may not determine a case to be unsubstantiated or identify a case as
             126      unsubstantiated solely because the perpetrator was an out-of-home perpetrator.
             127          (d) Decisions regarding whether a report is substantiated, unsubstantiated, or without merit
             128      shall be based on the facts of the case at the time the report was made.
             129          (5) The division should maintain protective custody of the child if it finds that one or more
             130      of the following conditions exist:
             131          (a) the minor has no natural parent, guardian, or responsible relative who is able and
             132      willing to provide safe and appropriate care for the minor;
             133          (b) shelter of the minor is a matter of necessity for the protection of the minor and there
             134      are no reasonable means by which the minor can be protected in [his] the minor's home or the
             135      home of a responsible relative;
             136          (c) there is substantial evidence that the parent or guardian is likely to flee the jurisdiction
             137      of the court; or
             138          (d) the minor has left a previously court ordered placement.
             139          (6) (a) Within 24 hours after receipt of a child into protective custody, excluding weekends
             140      and holidays, the [Division of Child and Family Services] division shall convene a child protection
             141      team to review the circumstances regarding removal of the child from [his] the child's home or
             142      school, and prepare the testimony and evidence that will be required of the division at the shelter
             143      hearing, in accordance with Section 78-3a-306 .
             144          (b) Members of that team shall include:
             145          (i) the caseworker assigned to the case and the caseworker who made the decision to
             146      remove the child;
             147          (ii) a representative of the school or school district in which the child attends school;
             148          (iii) the peace officer who removed the child from the home;
             149          (iv) a representative of the appropriate Children's Justice Center, if one is established
             150      within the county where the child resides;
             151          (v) if appropriate, and known to the division, a therapist or counselor who is familiar with

             152      the child's circumstances; and
             153          (vi) any other individuals as determined to be appropriate and necessary by the team
             154      coordinator and chair.
             155          (c) At that 24-hour meeting, the division shall have available for review and consideration,
             156      the complete child protective services and foster care history of the child and the child's parents
             157      and siblings.
             158          (7) After receipt of a child into protective custody and prior to the adjudication hearing,
             159      all investigative interviews with the child that are initiated by the division shall be audio or video
             160      taped, and the child shall be allowed to have a support person of the child's choice present. That
             161      support person may not be an alleged perpetrator.
             162          (8) The division shall cooperate with law enforcement investigations regarding the alleged
             163      perpetrator.
             164          (9) The division may not close an investigation solely on the grounds that the division
             165      investigator is unable to locate the child, until all reasonable efforts have been made to locate the
             166      child and family members. Those efforts include:
             167          (a) visiting the home at times other than normal work hours;
             168          (b) contacting local schools;
             169          (c) contacting local, county, and state law enforcement agencies; and
             170          (d) checking public assistance records.
             171          Section 3. Section 62A-4a-209 is amended to read:
             172           62A-4a-209. Emergency kinship placement.
             173          (1) The division may use an emergency kinship placement under Subsection
             174      [ 78-3a-301 (4)] 62A-4a-202.1 (6) when:
             175          (a) the case worker has made the determination that:
             176          (i) the child's home is unsafe;
             177          (ii) removal is necessary under the provisions of Section [78-3a-301] 62A-4a-202.1; and
             178          (iii) the child's custodial parent or guardian will agree to not remove the child from the
             179      relative's home who serves as the kinship placement and not have any contact with the child until
             180      after the shelter hearing required by Section 78-3a-306 ;
             181          (b) a relative, with preference being given to a noncustodial parent in accordance with
             182      Section 78-3a-307 , can be identified who has the ability and is willing to provide care for the child

             183      who would otherwise be placed in shelter care, including:
             184          (i) taking the child to medical, mental health, dental, and educational appointments at the
             185      request of the division; and
             186          (ii) the relative has the ability to make the child available to division services and the
             187      guardian ad litem; and
             188          (c) the relative agrees to care for the child on an emergency basis under the following
             189      conditions:
             190          (i) the relative meets the criteria for an emergency kinship placement under Subsection (2);
             191          (ii) the relative agrees to not allow the custodial parent or guardian to have any contact
             192      with the child until after the shelter hearing unless authorized by the division in writing;
             193          (iii) the relative agrees to contact law enforcement and the division if the custodial parent
             194      or guardian attempts to make unauthorized contact with the child;
             195          (iv) the relative agrees to allow the division and the child's guardian ad litem to have
             196      access to the child;
             197          (v) the relative has been informed and understands that the division may continue to search
             198      for other possible kinship placements for long-term care, if needed;
             199          (vi) the relative is willing to assist the custodial parent or guardian in reunification efforts
             200      at the request of the division, and to follow all court orders; and
             201          (vii) the child is comfortable with the relative.
             202          (2) Before the division places a child in an emergency kinship placement, the division
             203      must:
             204          (a) request the name of a reference and when possible, contact the reference and determine
             205      the answer to the following questions:
             206          (i) would the person identified as a reference place a child in the home of the emergency
             207      kinship placement; and
             208          (ii) are there any other relatives to consider as a possible emergency or long-term
             209      placement for the child;
             210          (b) have the custodial parent or guardian sign an emergency kinship placement agreement
             211      form during the investigation;
             212          (c) complete a criminal background check described in Sections 62A-4a-202.4 and
             213      78-3a-307.1 on all persons living in the relative's household;

             214          (d) complete a home inspection of the relative's home; and
             215          (e) have the emergency kinship placement approved by a family service specialist.
             216          (3) As soon as possible after the emergency placement and prior to the shelter hearing
             217      required by Section 78-3a-306 , the division shall convene a family unity meeting.
             218          (4) After an emergency kinship placement, the division caseworker must:
             219          (a) respond to the emergency kinship placement's calls within one hour if the custodial
             220      parents or guardians attempt to make unauthorized contact with the child or attempt to remove the
             221      child;
             222          (b) complete all removal paperwork, including the notice provided to the custodial parents
             223      and guardians under Section 78-3a-306 ;
             224          (c) contact the attorney general to schedule a shelter hearing;
             225          (d) complete the kinship procedures required in Section 78-3a-307 , including, within five
             226      days after placement, the criminal history record check described in Subsection (5); and
             227          (e) continue to search for other relatives as a possible long-term placement, if needed.
             228          (5) (a) In order to determine the suitability of the kinship placement and to conduct a
             229      background screening and investigation of individuals living in the household in which a child is
             230      placed, each individual living in the household in which the child is placed shall be fingerprinted.
             231      If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the
             232      division to the Federal Bureau of Investigation for a national criminal history record check.
             233          (b) The cost of those investigations shall be borne by whomever received placement of
             234      the child, except that the division may pay all or part of the cost of those investigations if the
             235      person with whom the child is placed is unable to pay.
             236          Section 4. Section 62A-4a-409 is amended to read:
             237           62A-4a-409. Investigation by division -- Temporary protective custody -- Preremoval
             238      interviews of children.
             239          (1) The division shall make a thorough pre-removal investigation upon receiving either
             240      an oral or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug
             241      dependency, when there is reasonable cause to suspect a situation of abuse, neglect, fetal alcohol
             242      syndrome, or fetal drug dependency. The primary purpose of that investigation shall be protection
             243      of the child.
             244          (2) The preremoval investigation shall include the same investigative requirements

             245      described in Section 62A-4a-202.3 .
             246          (3) The division shall make a written report of its investigation. The written report shall
             247      include a determination regarding whether the alleged abuse or neglect was substantiated,
             248      unsubstantiated, or without merit.
             249          (4) (a) The division shall use an interdisciplinary approach whenever possible in dealing
             250      with reports made under this part.
             251          (b) For this purpose, the division shall convene appropriate interdisciplinary "child
             252      protection teams" to assist it in its protective, diagnostic, assessment, treatment, and coordination
             253      services.
             254          (c) A representative of the division shall serve as the team's coordinator and chair.
             255      Members of the team shall serve at the coordinator's invitation, and whenever possible, the team
             256      shall include representatives of health, mental health, education, law enforcement agencies, and
             257      other appropriate agencies or individuals.
             258          (5) In any case where the division supervises, governs, or directs the affairs of any
             259      individual, institution, or facility that has been alleged to be involved in acts or omissions of child
             260      abuse or neglect, the investigation of the reported child abuse or neglect shall be conducted by an
             261      agency other than the division.
             262          (6) If a report of neglect is based upon or includes an allegation of educational neglect the
             263      division shall immediately consult with school authorities to verify the child's status in accordance
             264      with Sections 53A-11-101 through 53A-11-103 .
             265          (7) When the division has completed its initial investigation under this part, it shall give
             266      notice of that completion to the person who made the initial report.
             267          (8) Division workers or other child protection team members have authority to enter upon
             268      public or private premises, using appropriate legal processes, to investigate reports of alleged child
             269      abuse or neglect.
             270          (9) With regard to any interview of a child prior to removal of that child from [his] the
             271      child's home:
             272          (a) except as provided in Subsection (9)(b) or (c), the division shall notify a parent of the
             273      child prior to the interview;
             274          (b) if a child's parent or stepparent, or a parent's paramour has been identified as the
             275      alleged perpetrator, the division need not notify a parent of the child prior to an initial interview

             276      with the child;
             277          (c) if the perpetrator is unknown, or if the perpetrator's relationship to the child's family
             278      is unknown, the division may conduct a minimal interview, not to exceed 15 minutes, with the
             279      child prior to notification of the child's parent;
             280          (d) in all cases described in Subsection (9)(b) or (c), a parent of the child shall be notified
             281      as soon as practicable after the child has been interviewed, but in no case later than 24 hours after
             282      the interview has taken place;
             283          (e) a child's parents shall be notified of the time and place of all subsequent interviews
             284      with the child; and
             285          (f) the child shall be allowed to have a support person of the child's choice present. That
             286      support person:
             287          (i) may include, but is not limited to, a school teacher or administrator, guidance
             288      counselor, or child care provider; and
             289          (ii) may not be a person who is alleged to be, or potentially may be, the perpetrator.
             290          (10) In accordance with the procedures and requirements of Sections 62A-4a-202.1
             291      through 62A-4a-202.3 [and 78-3a-301 ], a division worker or child protection team member may
             292      take a child into protective custody[,] and deliver the child to a law enforcement officer, or place
             293      the child in an emergency shelter facility approved by the juvenile court, at the earliest opportunity
             294      subsequent to the child's removal from [its] the child's original environment. Control and
             295      jurisdiction over the child is determined by the provisions of Title 78, Chapter 3a, Juvenile Court
             296      Act of 1996, and as otherwise provided by law.
             297          (11) With regard to cases in which law enforcement has or is conducting an investigation
             298      of alleged abuse or neglect of a child:
             299          (a) the division shall coordinate with law enforcement to ensure that there is an adequate
             300      safety plan to protect the child from further abuse or neglect; and
             301          (b) the division is not required to duplicate an aspect of the investigation that, in the
             302      division's determination, has been satisfactorily completed by law enforcement.
             303          Section 5. Section 78-3a-106 is amended to read:
             304           78-3a-106. Search warrants and subpoenas -- Authority to issue.
             305          (1) The court has authority to issue search warrants, subpoenas, or investigative subpoenas
             306      in criminal cases, delinquency, and abuse, neglect, and dependency proceedings for the same

             307      purposes, in the same manner and pursuant to the same procedures set forth in the code of criminal
             308      procedure for the issuance of search warrants, subpoenas, or investigative subpoenas in other trial
             309      courts in the state.
             310          (2) (a) If it appears to the court upon an affidavit sworn to by a peace officer or any other
             311      person, and upon the examination of other witnesses, if required by the judge, that there is probable
             312      cause to believe that a child is being ill-treated by [his] the child's parent, guardian, or custodian,
             313      or is being detained, ill-treated, or harbored against the desires of [his] the child's parent, guardian,
             314      or custodian, in any place within the jurisdiction of the court, the court may issue a warrant
             315      authorizing a child protective services worker or peace officer to search for the child and take the
             316      child into protective custody.
             317          (b) Pursuant to Section 77-23-210 , [the] a peace officer making the search may enter a
             318      house or premises by force, if necessary, in order to remove the child.
             319          (c) The [officer] person executing the warrant shall then take the child to the place of
             320      shelter designated by the court.
             321          Section 6. Section 78-3a-301 [(Subsection (1)(m) Repealed 07/01/02)] is amended to
             322      read:
             323           78-3a-301 [(Subsection (1)(m) is repealed 07/01/02)]. Court-ordered removal of a
             324      minor from the child's home or school following petition filing -- Grounds for removal.
             325          (1) [The Division of Child and Family Services may not remove a child from the custody
             326      of his natural parent unless the division complies with the provisions of Title 62A, Chapter 4a,
             327      Child and Family Services, including Subsections 62A-4a-103 (2)(b) and 62A-4a-201 (3), and
             328      unless there is substantial cause to believe] After a petition has been filed under Subsection
             329      78-3a-305 (1), if the minor who is the subject of the petition is not in the protective custody of the
             330      division, a court may order that the minor be removed from the minor's home or otherwise taken
             331      into protective custody if the court finds, by a preponderance of the evidence, that any one or more
             332      of the following circumstances exist:
             333          (a) there is a S [ substantial ] IMMINENT s danger to the physical health or safety of the minor
             333a      and the minor's
             334      physical health or safety may not be protected without removing [him] the minor from [his
             335      parent's] the custody of the minor's parent or guardian. If a minor has previously been adjudicated
             336      as abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency has
             337      occurred involving the same alleged abuser or under similar circumstance as the previous abuse,

             338      that fact constitutes prima facie evidence that the [child] minor cannot safely remain in the custody
             339      of [his] the minor's parent;
             340          (b) a parent or guardian engages in or threatens the [child] minor with unreasonable
             341      conduct that causes the minor to suffer emotional damage and there are no reasonable means
             342      available by which the minor's emotional health may be protected without removing the minor
             343      from the custody of [his] the minor's parent or guardian;
             344          (c) (i) the minor or another minor residing in the same household has been physically or
             345      sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
             346      a parent or guardian, a member of the parent's or guardian's household, or other person known to
             347      the parent or guardian.
             348          (ii) For purposes of this Subsection (1)(c), another minor residing in the same household
             349      may not be removed from the home unless that minor is [deemed] considered to be at substantial
             350      risk of being physically or sexually abused as described in Subsection (1)(c)(i) or (iii).
             351          (iii) If a parent or guardian has received actual notice that physical or sexual abuse by a
             352      person known to the parent has occurred, and there is evidence that the parent or guardian failed
             353      to protect the [child] minor by allowing the [child] minor to be in the physical presence of the
             354      alleged abuser, that fact constitutes prima facie evidence that the [child] minor is at substantial risk
             355      of being physically or sexually abused;
             356          (d) the parent or guardian is unwilling to have physical custody of the [child] minor;
             357          (e) the minor has been abandoned or left without any provision for [his] the minor's
             358      support;
             359          (f) a parent or guardian who has been incarcerated or institutionalized has not arranged or
             360      cannot arrange for safe and appropriate care for the minor;
             361          (g) a relative or other adult custodian with whom the minor has been left by the parent or
             362      guardian is unwilling or unable to provide care or support for the minor, the whereabouts of the
             363      parent or guardian are unknown, and reasonable efforts to locate [him] the parent or guardian have
             364      been unsuccessful;
             365          (h) the minor is in immediate need of [urgent] medical care;
             366          (i) (i) a parent's or guardian's actions, omissions, or habitual action create an environment
             367      that poses a threat to the [child's] minor's health or safety; or
             368          (ii) a parent's or guardian's action in leaving a [child] minor unattended would reasonably

             369      pose a threat to the [child's] minor's health or safety;
             370          (j) (i) the minor or another minor residing in the same household has been neglected; and
             371          (ii) for purposes of Subsection (j)(i), another minor residing in the same household may
             372      not be removed unless that minor is deemed to be at substantial risk of being neglected;
             373          (k) an infant has been abandoned, as defined in Section 78-3a-313.5 ;
             374          (l) the parent or guardian, or an adult residing in the same household as the parent or
             375      guardian, has been charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab
             376      Act, and any clandestine laboratory operation, as defined in Section 58-37d-3 , was located in the
             377      residence or on the property where the [child] minor resided; or
             378          (m) the [child's] minor's welfare is otherwise endangered[, as documented by the
             379      caseworker. This Subsection (1)(m) is repealed on July 1, 2002 unless further authorized by the
             380      Legislature].
             381          (2) [The Division of Child and Family Services] A court may not remove a minor from
             382      the parent's or guardian's custody [of his parent solely] on the basis of educational S [h OR MEDICA L h ] s
             382a      neglect, in the
             383      absence of one of the factors described in Subsection (1).
             384          (3) [The Division of Child and Family Services] A court may not remove a minor from
             385      the parent's or guardian's custody [of his parent solely] on the basis of mental illness or poverty of
             386      the parent or guardian, in the absence of one of the factors described in Subsection (1).
             387          [(4) The Division of Child and Family Services shall comply with the provisions of
             388      Section 62A-4a-202.1 in effecting removal of a child pursuant to this section.]
             389          [(5) (a)] (4) A minor removed from the custody of [his natural] the minor's parent or
             390      guardian under this section may not be placed or kept in a secure detention facility pending further
             391      court proceedings unless the minor is detainable based on guidelines promulgated by the Division
             392      of Youth Corrections.
             393          [(b) A minor removed from the custody of his natural parent but who does not require
             394      physical restriction shall be given temporary care in:]
             395          [(i) a shelter facility; or]
             396          [(ii) an emergency kinship placement in accordance with Section 62A-4a-209 .]
             397          (5) This section does not preclude removal of a minor from the minor's home without a
             398      warrant or court order under Section 62A-4a-202.1 .
             399          Section 7. Section 78-3a-306 is amended to read:

             400           78-3a-306. Shelter hearing.
             401          (1) A shelter hearing shall be held within 72 hours excluding weekends and holidays after
             402      any one or all of the following occur:
             403          (a) removal of the child from his home by the Division of Child and Family Services;
             404          (b) placement of the child in the protective custody of the Division of Child and Family
             405      Services;
             406          (c) emergency kinship placement under Subsection [ 78-3a-301 (4)(b)(ii)] 62A-4a-202.1 (6);
             407      or
             408          (d) as an alternative to removal of the child, a parent has entered a domestic violence
             409      shelter at the request of the Division of Child and Family Services.
             410          (2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
             411      through (1)(d), the division shall issue a notice that contains all of the following:
             412          (a) the name and address of the person to whom the notice is directed;
             413          (b) the date, time, and place of the shelter hearing;
             414          (c) the name of the minor on whose behalf a petition is being brought;
             415          (d) a concise statement regarding:
             416          (i) the reasons for removal or other action of the division under Subsection (1); and
             417          (ii) the allegations and code sections under which the proceeding has been instituted;
             418          (e) a statement that the parent or guardian to whom notice is given, and the minor, are
             419      entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
             420      indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
             421      provided; and
             422          (f) a statement that the parent or guardian is liable for the cost of support of the minor in
             423      the protective custody, temporary custody, and custody of the division, and the cost for legal
             424      counsel appointed for the parent or guardian under Subsection (2)(e), according to his financial
             425      ability.
             426          (3) That notice shall be personally served as soon as possible, but no later than one
             427      business day after removal of a child from his home, on:
             428          (a) the appropriate guardian ad litem; and
             429          (b) both parents and any guardian of the minor, unless they cannot be located.
             430          (4) The following persons shall be present at the shelter hearing:

             431          (a) the child, unless it would be detrimental for the child;
             432          (b) the child's parents or guardian, unless they cannot be located, or fail to appear in
             433      response to the notice;
             434          (c) counsel for the parents, if one has been requested;
             435          (d) the child's guardian ad litem;
             436          (e) the caseworker from the Division of Child and Family Services who has been assigned
             437      to the case; and
             438          (f) the attorney from the attorney general's office who is representing the division.
             439          (5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's parent
             440      or guardian, if present, and any other person having relevant knowledge, to provide relevant
             441      testimony. The court may also provide an opportunity for the minor to testify.
             442          (b) The court may consider all relevant evidence, in accordance with the Utah Rules of
             443      Juvenile Procedure. The court shall hear relevant evidence presented by the minor, his parent or
             444      guardian, the requesting party, or their counsel, but may in its discretion limit testimony and
             445      evidence to only that which goes to the issues of removal and the child's need for continued
             446      protection.
             447          (6) If the child is in the protective custody of the division, the division shall report to the
             448      court:
             449          (a) the reasons why the minor was removed from the parent's or guardian's custody;
             450          (b) any services provided to the child and his family in an effort to prevent removal;
             451          (c) the need, if any, for continued shelter;
             452          (d) the available services that could facilitate the return of the minor to the custody of his
             453      parent or guardian; and
             454          (e) whether the child has any relatives who may be able and willing to take temporary
             455      custody.
             456          (7) The court shall consider all relevant evidence provided by persons or entities
             457      authorized to present relevant evidence pursuant to this section.
             458          (8) If necessary to protect the child, preserve the rights of a party, or for other good cause
             459      shown, the court may grant no more than one time-limited continuance, not to exceed five judicial
             460      days.
             461          (9) If the child is in the protective custody of the division, the court shall order that the

             462      minor be released from the protective custody of the division unless it finds, by a preponderance
             463      of the evidence, that any one of the following exist:
             464          (a) there is a substantial danger to the physical health or safety of the minor and the minor's
             465      physical health or safety may not be protected without removing him from his parent's custody.
             466      If a minor has previously been adjudicated as abused, neglected, or dependent and a subsequent
             467      incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
             468      child cannot safely remain in the custody of his parent;
             469          (b) the minor is suffering emotional damage, as may be indicated by, but is not limited to,
             470      extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
             471      and there are no reasonable means available by which the minor's emotional health may be
             472      protected without removing the minor from the custody of his parent;
             473          (c) the minor or another minor residing in the same household has been physically or
             474      sexually abused, or is [deemed] considered to be at substantial risk of being physically or sexually
             475      abused, by a parent, a member of the parent's household, or other person known to the parent. If
             476      a parent has received actual notice that physical or sexual abuse by a person known to the parent
             477      has occurred, and there is evidence that the parent has allowed the child to be in the physical
             478      presence of the alleged abuser, that fact constitutes prima facie evidence that the child is at
             479      substantial risk of being physically or sexually abused;
             480          (d) the parent is unwilling to have physical custody of the child;
             481          (e) the minor has been left without any provision for his support;
             482          (f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
             483      safe and appropriate care for the minor;
             484          (g) a relative or other adult custodian with whom the minor has been left by the parent is
             485      unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
             486      unknown, and reasonable efforts to locate him have been unsuccessful;
             487          (h) the minor is in immediate need of medical care;
             488          (i) the physical environment or the fact that the child is left unattended poses a threat to
             489      the child's health or safety;
             490          (j) the minor or another minor residing in the same household has been neglected;
             491          (k) the parent, or an adult residing in the same household as the parent, has been charged
             492      or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine

             493      laboratory operation, as defined in Section 58-37d-3 , was located in the residence or on the
             494      property where the child resided; or
             495          (l) the child's welfare is otherwise endangered.
             496          (10) (a) The court shall also make a determination on the record as to whether reasonable
             497      efforts were made to prevent or eliminate the need for removal of the minor from his home and
             498      whether there are available services that would prevent the need for continued removal. If the
             499      court finds that the minor can be safely returned to the custody of his parent or guardian through
             500      the provision of those services, it shall place the minor with his parent or guardian and order that
             501      those services be provided by the division.
             502          (b) In making that determination, and in ordering and providing services, the child's health,
             503      safety, and welfare shall be the paramount concern, in accordance with federal law.
             504          (11) Where the division's first contact with the family occurred during an emergency
             505      situation in which the child could not safely remain at home, the court shall make a finding that
             506      any lack of preplacement preventive efforts was appropriate.
             507          (12) In cases where actual sexual abuse or abandonment, or serious physical abuse or
             508      neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
             509      or to, in any other way, attempt to maintain a child in his home, return a child to his home, provide
             510      reunification services, or attempt to rehabilitate the offending parent or parents.
             511          (13) The court may not order continued removal of a minor solely on the basis of
             512      educational neglect as described in Subsection 78-3a-103 (1)(r)(ii).
             513          (14) (a) Whenever a court orders continued removal of a minor under this section, it shall
             514      state the facts on which that decision is based.
             515          (b) If no continued removal is ordered and the minor is returned home, the court shall state
             516      the facts on which that decision is based.
             517          (15) If the court finds that continued removal and temporary custody are necessary for the
             518      protection of a child because harm may result to the child if he were returned home, it shall order
             519      continued removal regardless of any error in the initial removal of the child, or the failure of a
             520      party to comply with notice provisions, or any other procedural requirement of this chapter or Title
             521      62A, Chapter 4a, Child and Family Services.
             522          Section 8. Effective date.
             523          This act takes effect on July 1, 2002.
             523a           S [h SECTION 9.Appropriation.
             523b          (1) SUBJECT TO FUTURE BUDGET CONSTRAINTS, THERE IS APPROPRIATED, AS AN
             523c      ONGOING APPROPRIATION, $150,000 FOR FISCAL YEAR 2002-2003 FROM THE GENERAL FUND TO
             523d      THE ATTORNEY GENERAL'S OFFICE FOR THE IMPLEMENTATION OF THIS ACT.
             523e          (2) THE MONEY APPROPRIATED IN SUBSECTION (1) IS NONLAPSING. h ] s





Legislative Review Note
    as of 1-31-02 1:47 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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