H.B. 295 Enrolled

TAKING MINOR INTO PROTECTIVE
CUSTODY WITHOUT WARRANT
2002 GENERAL SESSION
STATE OF UTAH
Sponsor: Thomas V. Hatch
This act amends the Human Services Code and the Judicial Code. The act provides that a
state officer, peace officer, or child welfare worker may not remove a minor from the minor's
home or school or take the minor into protective custody without a warrant or court order
unless a parent or guardian consents, or there is probable cause to believe that any one or
more of enumerated circumstances exist. The act allows a juvenile court judge to authorize
a child protective services worker to execute a warrant. The act amends and clarifies the
grounds for a court ordering that a minor be removed from the minor's home or otherwise
taken into protective custody, after the filing of a petition alleging abuse, neglect, or
dependency. The act makes technical changes. The act provides an effective date.
This act affects sections of Utah Code Annotated 1953 as follows:
AMENDS:
62A-4a-202.1, as last amended by Chapter 167, Laws of Utah 2001
62A-4a-202.3, as last amended by Chapters 208 and 250, Laws of Utah 2001
62A-4a-209, as enacted by Chapter 250, Laws of Utah 2001
62A-4a-409, as last amended by Chapter 208, Laws of Utah 2001
78-3a-106, as last amended by Chapter 153, Laws of Utah 2001
78-3a-301 [(Subsection (1)(m) Repealed 07/01/02)], as last amended by Chapters 153
and 250, Laws of Utah 2001
78-3a-306, as last amended by Chapter 250, Laws of Utah 2001
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 62A-4a-202.1 is amended to read:
62A-4a-202.1. Taking a minor into protective custody without warrant -- Peace
officer -- Division of Child and Family Services caseworker -- Consent or specified
circumstances -- Shelter care or emergency kinship.

(1) A state officer, peace officer, or child welfare worker may not, without a warrant or court
order issued under Section 78-3a-106 , remove a [child] minor from the [child's] minor's home or
school, or take [a child] a minor into protective custody [without a warrant or court order issued
under Section 78-3a-106 ] unless:
[(a) the state officer, peace officer, or child welfare worker has reasonable grounds to believe
that the exigent circumstances described in Section 78-3a-301 , which defines substantial danger to
a child's health or safety, exist; and]
(a) a parent or guardian consents; or
(b) the officer or worker has, at the time, probable cause to believe that one or more of the
following circumstances exist:
(i) there is imminent danger to the physical health or safety of the minor, and the minor's
physical health or safety may not be protected without removing the minor from the custody of the
minor's parent or guardian;
(ii) there is a substantial risk to the minor of being physically or sexually abused by a parent
or guardian, a member of the parent's or guardian's household, or another person known to the parent
or guardian;
(iii) the parent or guardian is unwilling to have physical custody of the minor;
(iv) the minor has been abandoned without any provision for the minor's support;
(v) a parent who has been incarcerated or institutionalized has not arranged or cannot arrange
for safe and appropriate care for the minor;
(vi) a relative or other adult custodian with whom the parent or guardian has left the minor
is unwilling or unable to provide care or support for the minor, the whereabouts of the parent or
guardian are unknown, and reasonable efforts to locate the parent or guardian have been
unsuccessful; or
(vii) an infant has been abandoned, as defined in Section 78-3a-313.5 .
[(b)] (2) [the removal of the child or placement of the child] A state officer, peace officer,
or child welfare worker may not remove a minor from the minor's home or school or take a minor
into protective custody [is not] under Subsection (1) if motivated [purely] solely by an intent to seize

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or obtain evidence unrelated to the potential abuse or neglect allegation.
(3) In the absence of circumstances that demonstrate a substantial, immediate threat to the
health or safety of a minor, a state officer, peace officer, or child welfare worker may not remove a
minor from the minor's home or school or take a minor into protective custody under Subsection (1)
on the basis of:
(a) mental illness or poverty of the parent or guardian; or
(b) educational neglect.
[(2)] (4) [(a)] A child welfare worker within the division [of Child and Family Services] may
take [and maintain protective custody of a minor, without a warrant, in accordance with the
requirements of this section and Section 78-3a-301 when] action under Subsection (1) accompanied
by a peace officer, or without a peace officer[,] when a peace officer is not reasonably available.
[(b)] (5) If possible, consistent with the [child's] minor's safety and welfare, before taking a
[child] minor into protective custody, the worker shall also determine whether there are services
reasonably available to the worker which, if provided to the minor's parent or to the minor, would
eliminate the need to remove the minor from the custody of [his] the minor's parent [ in accordance
with the provisions and limitations of Section 78-3a-301 ] or guardian. If those services are
reasonably available, they shall be utilized. In determining whether services are reasonably
available, and in making reasonable efforts to provide those services, the [child's] minor's health,
safety, and welfare shall be the worker's paramount concern.
[(c) (i) Except as provided in Subsection (2)(c)(ii), if a child welfare worker determines that
there is substantial cause to believe that one or more of the factors described in Section 78-3a-301
exist and determines, pursuant to Subsection (2)(b), that services are not reasonably available to
eliminate the need for removal, the child welfare worker may proceed with removal of the child after
the worker has reviewed the reasons for removal and other available options with a family services
specialist within the division.]
[(ii) The provisions of Subsection (2)(c)(i) requiring a family services specialist's review
prior to removal of a child do not apply and are not necessary if, in the child welfare worker's
opinion, that process would create a delay that may endanger the health, safety, or welfare of the

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child.]
[(iii) From its existing staff, the division shall train and appoint family services specialists
who are available 24 hours a day, seven days a week, to perform the duties described in Subsection
(2)(c)(i).]
(6) (a) A minor removed or taken into custody under this section may not be placed or kept
in a secure detention facility pending court proceedings unless the minor is detainable based on
guidelines promulgated by the Division of Youth Corrections.
(b) A minor removed from the custody of the minor's parent or guardian but who does not
require physical restriction shall be given temporary care in:
(i) a shelter facility; or
(ii) an emergency kinship placement in accordance with Section 62A-4a-209 .
Section 2. Section 62A-4a-202.3 is amended to read:
62A-4a-202.3. Investigation -- Substantiation of reports -- Child in protective custody.
(1) When a child is taken into protective custody in accordance with [Sections] Section
62A-4a-202.1 [and], 78-3a-106 , or 78-3a-301 , or when the division takes any other action which
would require a shelter hearing under Subsection 78-3a-306 (1), the [Division of Child and Family
Services] division shall immediately initiate an investigation of the circumstances of the minor and
the facts surrounding [his] the minor's being taken into protective custody.
(2) The division's investigation shall include, among other actions necessary to meet
reasonable professional standards:
(a) a search for and review of any records of past reports of abuse or neglect involving the
same child, any sibling or other child residing in that household, and the alleged perpetrator;
(b) with regard to a child who is five years of age or older, a personal interview with the
child outside of the presence of the alleged perpetrator, conducted in accordance with the
requirements of Subsection (7);
(c) an interview with the child's natural parents or other guardian, unless their whereabouts
are unknown;
(d) an interview with the person who reported the abuse, unless anonymous;

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(e) where possible and appropriate, interviews with other third parties who have had direct
contact with the child, including school personnel and the child's health care provider;
(f) an unscheduled visit to the child's home, unless the division has reasonable cause to
believe that the reported abuse was committed by a person who does not:
(i) live in the child's home; or
(ii) have access to the child; and
(g) if appropriate and indicated in any case alleging physical injury, sexual abuse, or failure
to meet the child's medical needs, a medical examination. That examination shall be obtained no
later than 24 hours after the child was placed in protective custody.
(3) The division may rely on a written report of a prior interview rather than conducting an
additional interview, if:
(a) law enforcement has previously conducted a timely and thorough investigation regarding
the alleged abuse or neglect and has produced a written report;
(b) that investigation included one or more of the interviews required by Subsection (2); and
(c) the division finds that an additional interview is not in the best interest of the child.
(4) (a)The division's determination of whether a report is substantiated or unsubstantiated
may be based on the child's statements alone.
(b) Inability to identify or locate the perpetrator may not be used by the division as a basis
for determining that a report is unsubstantiated, or for closing the case.
(c) The division may not determine a case to be unsubstantiated or identify a case as
unsubstantiated solely because the perpetrator was an out-of-home perpetrator.
(d) Decisions regarding whether a report is substantiated, unsubstantiated, or without merit
shall be based on the facts of the case at the time the report was made.
(5) The division should maintain protective custody of the child if it finds that one or more
of the following conditions exist:
(a) the minor has no natural parent, guardian, or responsible relative who is able and willing
to provide safe and appropriate care for the minor;
(b) shelter of the minor is a matter of necessity for the protection of the minor and there are

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no reasonable means by which the minor can be protected in [his] the minor's home or the home of
a responsible relative;
(c) there is substantial evidence that the parent or guardian is likely to flee the jurisdiction
of the court; or
(d) the minor has left a previously court ordered placement.
(6) (a) Within 24 hours after receipt of a child into protective custody, excluding weekends
and holidays, the [Division of Child and Family Services] division shall convene a child protection
team to review the circumstances regarding removal of the child from [his] the child's home or
school, and prepare the testimony and evidence that will be required of the division at the shelter
hearing, in accordance with Section 78-3a-306 .
(b) Members of that team shall include:
(i) the caseworker assigned to the case and the caseworker who made the decision to remove
the child;
(ii) a representative of the school or school district in which the child attends school;
(iii) the peace officer who removed the child from the home;
(iv) a representative of the appropriate Children's Justice Center, if one is established within
the county where the child resides;
(v) if appropriate, and known to the division, a therapist or counselor who is familiar with
the child's circumstances; and
(vi) any other individuals as determined to be appropriate and necessary by the team
coordinator and chair.
(c) At that 24-hour meeting, the division shall have available for review and consideration,
the complete child protective services and foster care history of the child and the child's parents and
siblings.
(7) After receipt of a child into protective custody and prior to the adjudication hearing, all
investigative interviews with the child that are initiated by the division shall be audio or video taped,
and the child shall be allowed to have a support person of the child's choice present. That support
person may not be an alleged perpetrator.

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(8) The division shall cooperate with law enforcement investigations regarding the alleged
perpetrator.
(9) The division may not close an investigation solely on the grounds that the division
investigator is unable to locate the child, until all reasonable efforts have been made to locate the
child and family members. Those efforts include:
(a) visiting the home at times other than normal work hours;
(b) contacting local schools;
(c) contacting local, county, and state law enforcement agencies; and
(d) checking public assistance records.
Section 3. Section 62A-4a-209 is amended to read:
62A-4a-209. Emergency kinship placement.
(1) The division may use an emergency kinship placement under Subsection [ 78-3a-301 (4)]
62A-4a-202.1 (6) when:
(a) the case worker has made the determination that:
(i) the child's home is unsafe;
(ii) removal is necessary under the provisions of Section [78-3a-301] 62A-4a-202.1; and
(iii) the child's custodial parent or guardian will agree to not remove the child from the
relative's home who serves as the kinship placement and not have any contact with the child until
after the shelter hearing required by Section 78-3a-306 ;
(b) a relative, with preference being given to a noncustodial parent in accordance with
Section 78-3a-307 , can be identified who has the ability and is willing to provide care for the child
who would otherwise be placed in shelter care, including:
(i) taking the child to medical, mental health, dental, and educational appointments at the
request of the division; and
(ii) the relative has the ability to make the child available to division services and the
guardian ad litem; and
(c) the relative agrees to care for the child on an emergency basis under the following
conditions:

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

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(a) respond to the emergency kinship placement's calls within one hour if the custodial
parents or guardians attempt to make unauthorized contact with the child or attempt to remove the
child;
(b) complete all removal paperwork, including the notice provided to the custodial parents
and guardians under Section 78-3a-306 ;
(c) contact the attorney general to schedule a shelter hearing;
(d) complete the kinship procedures required in Section 78-3a-307 , including, within five
days after placement, the criminal history record check described in Subsection (5); and
(e) continue to search for other relatives as a possible long-term placement, if needed.
(5) (a) In order to determine the suitability of the kinship placement and to conduct a
background screening and investigation of individuals living in the household in which a child is
placed, each individual living in the household in which the child is placed shall be fingerprinted.
If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the
division to the Federal Bureau of Investigation for a national criminal history record check.
(b) The cost of those investigations shall be borne by whomever received placement of the
child, except that the division may pay all or part of the cost of those investigations if the person with
whom the child is placed is unable to pay.
Section 4. Section 62A-4a-409 is amended to read:
62A-4a-409. Investigation by division -- Temporary protective custody -- Preremoval
interviews of children.
(1) The division shall make a thorough pre-removal investigation upon receiving either an
oral or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug dependency,
when there is reasonable cause to suspect a situation of abuse, neglect, fetal alcohol syndrome, or
fetal drug dependency. The primary purpose of that investigation shall be protection of the child.
(2) The preremoval investigation shall include the same investigative requirements described
in Section 62A-4a-202.3 .
(3) The division shall make a written report of its investigation. The written report shall
include a determination regarding whether the alleged abuse or neglect was substantiated,

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unsubstantiated, or without merit.
(4) (a) The division shall use an interdisciplinary approach whenever possible in dealing with
reports made under this part.
(b) For this purpose, the division shall convene appropriate interdisciplinary "child
protection teams" to assist it in its protective, diagnostic, assessment, treatment, and coordination
services.
(c) A representative of the division shall serve as the team's coordinator and chair. Members
of the team shall serve at the coordinator's invitation, and whenever possible, the team shall include
representatives of health, mental health, education, law enforcement agencies, and other appropriate
agencies or individuals.
(5) In any case where the division supervises, governs, or directs the affairs of any
individual, institution, or facility that has been alleged to be involved in acts or omissions of child
abuse or neglect, the investigation of the reported child abuse or neglect shall be conducted by an
agency other than the division.
(6) If a report of neglect is based upon or includes an allegation of educational neglect the
division shall immediately consult with school authorities to verify the child's status in accordance
with Sections 53A-11-101 through 53A-11-103 .
(7) When the division has completed its initial investigation under this part, it shall give
notice of that completion to the person who made the initial report.
(8) Division workers or other child protection team members have authority to enter upon
public or private premises, using appropriate legal processes, to investigate reports of alleged child
abuse or neglect.
(9) With regard to any interview of a child prior to removal of that child from [his] the
child's home:
(a) except as provided in Subsection (9)(b) or (c), the division shall notify a parent of the
child prior to the interview;
(b) if a child's parent or stepparent, or a parent's paramour has been identified as the alleged
perpetrator, the division need not notify a parent of the child prior to an initial interview with the

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child;
(c) if the perpetrator is unknown, or if the perpetrator's relationship to the child's family is
unknown, the division may conduct a minimal interview, not to exceed 15 minutes, with the child
prior to notification of the child's parent;
(d) in all cases described in Subsection (9)(b) or (c), a parent of the child shall be notified
as soon as practicable after the child has been interviewed, but in no case later than 24 hours after
the interview has taken place;
(e) a child's parents shall be notified of the time and place of all subsequent interviews with
the child; and
(f) the child shall be allowed to have a support person of the child's choice present. That
support person:
(i) may include, but is not limited to, a school teacher or administrator, guidance counselor,
or child care provider; and
(ii) may not be a person who is alleged to be, or potentially may be, the perpetrator.
(10) In accordance with the procedures and requirements of Sections 62A-4a-202.1 through
62A-4a-202.3 [and 78-3a-301 ], a division worker or child protection team member may take a child
into protective custody[,] and deliver the child to a law enforcement officer, or place the child in an
emergency shelter facility approved by the juvenile court, at the earliest opportunity subsequent to
the child's removal from [its] the child's original environment. Control and jurisdiction over the child
is determined by the provisions of Title 78, Chapter 3a, Juvenile Court Act of 1996, and as otherwise
provided by law.
(11) With regard to cases in which law enforcement has or is conducting an investigation
of alleged abuse or neglect of a child:
(a) the division shall coordinate with law enforcement to ensure that there is an adequate
safety plan to protect the child from further abuse or neglect; and
(b) the division is not required to duplicate an aspect of the investigation that, in the
division's determination, has been satisfactorily completed by law enforcement.
Section 5. Section 78-3a-106 is amended to read:

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78-3a-106. Search warrants and subpoenas -- Authority to issue.
(1) The court has authority to issue search warrants, subpoenas, or investigative subpoenas
in criminal cases, delinquency, and abuse, neglect, and dependency proceedings for the same
purposes, in the same manner and pursuant to the same procedures set forth in the code of criminal
procedure for the issuance of search warrants, subpoenas, or investigative subpoenas in other trial
courts in the state.
(2) (a) If it appears to the court upon an affidavit sworn to by a peace officer or any other
person, and upon the examination of other witnesses, if required by the judge, that there is probable
cause to believe that a child is being ill-treated by [his] the child's parent, guardian, or custodian, or
is being detained, ill-treated, or harbored against the desires of [his] the child's parent, guardian, or
custodian, in any place within the jurisdiction of the court, the court may issue a warrant authorizing
a child protective services worker or peace officer to search for the child and take the child into
protective custody.
(b) Pursuant to Section 77-23-210 , [the] a peace officer making the search may enter a house
or premises by force, if necessary, in order to remove the child.
(c) The [officer] person executing the warrant shall then take the child to the place of shelter
designated by the court.
Section 6. Section 78-3a-301 [(Subsection (1)(m) Repealed 07/01/02)] is amended to read:
78-3a-301 [(Subsection (1)(m) is repealed 07/01/02)]. Court-ordered removal of a
minor from the child's home or school following petition filing -- Grounds for removal.
(1) [The Division of Child and Family Services may not remove a child from the custody
of his natural parent unless the division complies with the provisions of Title 62A, Chapter 4a, Child
and Family Services, including Subsections 62A-4a-103 (2)(b) and 62A-4a-201 (3), and unless there
is substantial cause to believe] After a petition has been filed under Subsection 78-3a-305 (1), if the
minor who is the subject of the petition is not in the protective custody of the division, a court may
order that the minor be removed from the minor's home or otherwise taken into protective custody
if the court finds, by a preponderance of the evidence, that any one or more of the following
circumstances exist:

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(a) there is [a substantial] an imminent danger to the physical health or safety of the minor
and the minor's physical health or safety may not be protected without removing [him] the minor
from [his parent's] the custody of the minor's parent or guardian. If a minor has previously been
adjudicated as abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or
dependency has occurred involving the same alleged abuser or under similar circumstance as the
previous abuse, that fact constitutes prima facie evidence that the [child] minor cannot safely remain
in the custody of [his] the minor's parent;
(b) a parent or guardian engages in or threatens the [child] minor with unreasonable conduct
that causes the minor to suffer emotional damage and there are no reasonable means available by
which the minor's emotional health may be protected without removing the minor from the custody
of [his] the minor's parent or guardian;
(c) (i) the minor or another minor residing in the same household has been physically or
sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by a
parent or guardian, a member of the parent's or guardian's household, or other person known to the
parent or guardian.
(ii) For purposes of this Subsection (1)(c), another minor residing in the same household may
not be removed from the home unless that minor is [deemed] considered to be at substantial risk of
being physically or sexually abused as described in Subsection (1)(c)(i) or (iii).
(iii) If a parent or guardian has received actual notice that physical or sexual abuse by a
person known to the parent has occurred, and there is evidence that the parent or guardian failed to
protect the [child] minor by allowing the [child] minor to be in the physical presence of the alleged
abuser, that fact constitutes prima facie evidence that the [child] minor is at substantial risk of being
physically or sexually abused;
(d) the parent or guardian is unwilling to have physical custody of the [child] minor;
(e) the minor has been abandoned or left without any provision for [his] the minor's support;
(f) a parent or guardian who has been incarcerated or institutionalized has not arranged or
cannot arrange for safe and appropriate care for the minor;
(g) a relative or other adult custodian with whom the minor has been left by the parent or

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guardian is unwilling or unable to provide care or support for the minor, the whereabouts of the
parent or guardian are unknown, and reasonable efforts to locate [him] the parent or guardian have
been unsuccessful;
(h) the minor is in immediate need of [urgent] medical care;
(i) (i) a parent's or guardian's actions, omissions, or habitual action create an environment
that poses a threat to the [child's] minor's health or safety; or
(ii) a parent's or guardian's action in leaving a [child] minor unattended would reasonably
pose a threat to the [child's] minor's health or safety;
(j) (i) the minor or another minor residing in the same household has been neglected; and
(ii) for purposes of Subsection (j)(i), another minor residing in the same household may not
be removed unless that minor is deemed to be at substantial risk of being neglected;
(k) an infant has been abandoned, as defined in Section 78-3a-313.5 ;
(l) the parent or guardian, or an adult residing in the same household as the parent or
guardian, has been charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act,
and any clandestine laboratory operation, as defined in Section 58-37d-3 , was located in the
residence or on the property where the [child] minor resided; or
(m) the [child's] minor's welfare is otherwise endangered[, as documented by the caseworker.
This Subsection (1)(m) is repealed on July 1, 2002 unless further authorized by the Legislature].
(2) [The Division of Child and Family Services] A court may not remove a minor from the
parent's or guardian's custody [of his parent solely] on the basis of educational neglect, in the absence
of one of the factors described in Subsection (1).
(3) [The Division of Child and Family Services] A court may not remove a minor from the
parent's or guardian's custody [of his parent solely] on the basis of mental illness or poverty of the
parent or guardian, in the absence of one of the factors described in Subsection (1).
[(4) The Division of Child and Family Services shall comply with the provisions of Section
62A-4a-202.1 in effecting removal of a child pursuant to this section.]
[(5) (a)] (4) A minor removed from the custody of [his natural] the minor's parent or
guardian under this section may not be placed or kept in a secure detention facility pending further

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court proceedings unless the minor is detainable based on guidelines promulgated by the Division
of Youth Corrections.
[(b) A minor removed from the custody of his natural parent but who does not require
physical restriction shall be given temporary care in:]
[(i) a shelter facility; or]
[(ii) an emergency kinship placement in accordance with Section 62A-4a-209 .]
(5) This section does not preclude removal of a minor from the minor's home without a
warrant or court order under Section 62A-4a-202.1 .
Section 7. Section 78-3a-306 is amended to read:
78-3a-306. Shelter hearing.
(1) A shelter hearing shall be held within 72 hours excluding weekends and holidays after
any one or all of the following occur:
(a) removal of the child from his home by the Division of Child and Family Services;
(b) placement of the child in the protective custody of the Division of Child and Family
Services;
(c) emergency kinship placement under Subsection [ 78-3a-301 (4)(b)(ii)] 62A-4a-202.1 (6);
or
(d) as an alternative to removal of the child, a parent has entered a domestic violence shelter
at the request of the Division of Child and Family Services.
(2) Upon the occurrence of any of the circumstances described in Subsections (1)(a) through
(1)(d), the division shall issue a notice that contains all of the following:
(a) the name and address of the person to whom the notice is directed;
(b) the date, time, and place of the shelter hearing;
(c) the name of the minor on whose behalf a petition is being brought;
(d) a concise statement regarding:
(i) the reasons for removal or other action of the division under Subsection (1); and
(ii) the allegations and code sections under which the proceeding has been instituted;
(e) a statement that the parent or guardian to whom notice is given, and the minor, are

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entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
provided; and
(f) a statement that the parent or guardian is liable for the cost of support of the minor in the
protective custody, temporary custody, and custody of the division, and the cost for legal counsel
appointed for the parent or guardian under Subsection (2)(e), according to his financial ability.
(3) That notice shall be personally served as soon as possible, but no later than one business
day after removal of a child from his home, on:
(a) the appropriate guardian ad litem; and
(b) both parents and any guardian of the minor, unless they cannot be located.
(4) The following persons shall be present at the shelter hearing:
(a) the child, unless it would be detrimental for the child;
(b) the child's parents or guardian, unless they cannot be located, or fail to appear in response
to the notice;
(c) counsel for the parents, if one has been requested;
(d) the child's guardian ad litem;
(e) the caseworker from the Division of Child and Family Services who has been assigned
to the case; and
(f) the attorney from the attorney general's office who is representing the division.
(5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's parent
or guardian, if present, and any other person having relevant knowledge, to provide relevant
testimony. The court may also provide an opportunity for the minor to testify.
(b) The court may consider all relevant evidence, in accordance with the Utah Rules of
Juvenile Procedure. The court shall hear relevant evidence presented by the minor, his parent or
guardian, the requesting party, or their counsel, but may in its discretion limit testimony and evidence
to only that which goes to the issues of removal and the child's need for continued protection.
(6) If the child is in the protective custody of the division, the division shall report to the
court:

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(a) the reasons why the minor was removed from the parent's or guardian's custody;
(b) any services provided to the child and his family in an effort to prevent removal;
(c) the need, if any, for continued shelter;
(d) the available services that could facilitate the return of the minor to the custody of his
parent or guardian; and
(e) whether the child has any relatives who may be able and willing to take temporary
custody.
(7) The court shall consider all relevant evidence provided by persons or entities authorized
to present relevant evidence pursuant to this section.
(8) If necessary to protect the child, preserve the rights of a party, or for other good cause
shown, the court may grant no more than one time-limited continuance, not to exceed five judicial
days.
(9) If the child is in the protective custody of the division, the court shall order that the minor
be released from the protective custody of the division unless it finds, by a preponderance of the
evidence, that any one of the following exist:
(a) there is a substantial danger to the physical health or safety of the minor and the minor's
physical health or safety may not be protected without removing him from his parent's custody. If
a minor has previously been adjudicated as abused, neglected, or dependent and a subsequent
incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
child cannot safely remain in the custody of his parent;
(b) the minor is suffering emotional damage, as may be indicated by, but is not limited to,
extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others, and
there are no reasonable means available by which the minor's emotional health may be protected
without removing the minor from the custody of his parent;
(c) the minor or another minor residing in the same household has been physically or
sexually abused, or is [deemed] considered to be at substantial risk of being physically or sexually
abused, by a parent, a member of the parent's household, or other person known to the parent. If a
parent has received actual notice that physical or sexual abuse by a person known to the parent has

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occurred, and there is evidence that the parent has allowed the child to be in the physical presence
of the alleged abuser, that fact constitutes prima facie evidence that the child is at substantial risk of
being physically or sexually abused;
(d) the parent is unwilling to have physical custody of the child;
(e) the minor has been left without any provision for his support;
(f) a parent who has been incarcerated or institutionalized has not or cannot arrange for safe
and appropriate care for the minor;
(g) a relative or other adult custodian with whom the minor has been left by the parent is
unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
unknown, and reasonable efforts to locate him have been unsuccessful;
(h) the minor is in immediate need of medical care;
(i) the physical environment or the fact that the child is left unattended poses a threat to the
child's health or safety;
(j) the minor or another minor residing in the same household has been neglected;
(k) the parent, or an adult residing in the same household as the parent, has been charged or
arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine laboratory
operation, as defined in Section 58-37d-3 , was located in the residence or on the property where the
child resided; or
(l) the child's welfare is otherwise endangered.
(10) (a) The court shall also make a determination on the record as to whether reasonable
efforts were made to prevent or eliminate the need for removal of the minor from his home and
whether there are available services that would prevent the need for continued removal. If the court
finds that the minor can be safely returned to the custody of his parent or guardian through the
provision of those services, it shall place the minor with his parent or guardian and order that those
services be provided by the division.
(b) In making that determination, and in ordering and providing services, the child's health,
safety, and welfare shall be the paramount concern, in accordance with federal law.
(11) Where the division's first contact with the family occurred during an emergency

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situation in which the child could not safely remain at home, the court shall make a finding that any
lack of preplacement preventive efforts was appropriate.
(12) In cases where actual sexual abuse or abandonment, or serious physical abuse or neglect
are involved, neither the division nor the court has any duty to make "reasonable efforts" or to, in
any other way, attempt to maintain a child in his home, return a child to his home, provide
reunification services, or attempt to rehabilitate the offending parent or parents.
(13) The court may not order continued removal of a minor solely on the basis of educational
neglect as described in Subsection 78-3a-103 (1)(r)(ii).
(14) (a) Whenever a court orders continued removal of a minor under this section, it shall
state the facts on which that decision is based.
(b) If no continued removal is ordered and the minor is returned home, the court shall state
the facts on which that decision is based.
(15) If the court finds that continued removal and temporary custody are necessary for the
protection of a child because harm may result to the child if he were returned home, it shall order
continued removal regardless of any error in the initial removal of the child, or the failure of a party
to comply with notice provisions, or any other procedural requirement of this chapter or Title 62A,
Chapter 4a, Child and Family Services.
Section 8. Effective date.
This act takes effect on July 1, 2002.

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