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Third Substitute H.B. 226

Representative Matt Throckmorton proposes the following substitute bill:





Sponsor: Matt Throckmorton

             6      This act modifies the Judicial Code. The act requires a juvenile court to make certain
             7      findings regarding a treatment plan and reunification services The act amends the grounds
             8      for termination of parental rights. The act provides that a court may not terminate parental
             9      rights for failure of a parent to complete the requirements of a treatment plan. The act
             10      provides than in certain cases in which the court has directed the Division of Child and
             11      Family Services to provide reunification services, the court must find that the division made
             12      reasonable efforts to provide those services before the court may terminate the parent's
             13      rights. The act makes technical changes.
             14      This act affects sections of Utah Code Annotated 1953 as follows:
             15      AMENDS:
             16          62A-4a-802, as enacted by Chapter 134, Laws of Utah 2001
             17          78-3a-311, as last amended by Chapters 21 and 153, Laws of Utah 2001
             18          78-3a-407, as last amended by Chapter 134, Laws of Utah 2001
             19      ENACTS:
             20          78-3a-311.5, Utah Code Annotated 1953
             21      Be it enacted by the Legislature of the state of Utah:
             22          Section 1. Section 62A-4a-802 is amended to read:
             23           62A-4a-802. Safe relinquishment of a newborn child.
             24          (1) (a) A parent or a parent's designee may safely relinquish a newborn child at a hospital
             25      in accordance with the provisions of this part and retain complete anonymity, so long as the child

             26      has not been subject to abuse or neglect.
             27          (b) Safe relinquishment of a newborn child who has not otherwise been subject to abuse
             28      or neglect shall not, in and of itself, constitute neglect as defined in [Subsection] Section
             29      62A-4a-101 [(14)(a)(i)], and the child shall not be considered a neglected child, as defined in
             30      Section 78-3a-103 , so long as the relinquishment is carried out in substantial compliance with the
             31      provisions of this part.
             32          (2) (a) Personnel employed by a hospital shall accept a newborn child that is relinquished
             33      pursuant to the provisions of this part, and may presume that the person relinquishing is the child's
             34      parent or the parent's designee.
             35          (b) The person receiving the newborn child may request information regarding the parent
             36      and newborn child's medical histories, and identifying information regarding the nonrelinquishing
             37      parent of the child.
             38          (c) The division shall provide hospitals with medical history forms and stamped envelopes
             39      addressed to the division that a hospital may provide to a person relinquishing a child pursuant to
             40      the provisions of this part.
             41          (d) Personnel employed by a hospital shall:
             42          (i) provide any necessary medical care to the child and notify the division as soon as
             43      possible, but no later than 24 hours after receipt of the child; and
             44          (ii) prepare a birth certificate or foundling birth certificate if parentage is unknown and file
             45      with the Office of Vital Records and Statistics.
             46          (e) A hospital and personnel employed by a hospital are immune from any civil or criminal
             47      liability arising from accepting a newborn child if the personnel employed by the hospital
             48      substantially comply with the provisions of this part and medical treatment is administered
             49      according to standard medical practice.
             50          (3) The division shall assume care and custody of the child immediately upon notice from
             51      the hospital.
             52          (4) So long as the division determines there is no abuse or neglect of the newborn child,
             53      neither the newborn child nor the child's parents are subject to:
             54          (a) the provisions of Part 2 of this chapter, Child Welfare Services;
             55          (b) the investigation provisions contained in Section 62A-4a-409 ; or
             56          (c) the provisions of Title 78, Chapter 3a, Part 3, Abuse, Neglect, and Dependency

             57      Proceedings.
             58          (5) Unless identifying information relating to the nonrelinquishing parent of the newborn
             59      child has been provided:
             60          (a) the division shall work with local law enforcement and the Bureau of Criminal
             61      Identification within the Department of Public Safety in an effort to ensure that the newborn child
             62      has not been identified as a missing child;
             63          (b) the division shall immediately place or contract for placement of the newborn child in
             64      a potential adoptive home and, within ten days after receipt of the child, file a petition for
             65      termination of parental rights in accordance with Title 78, Chapter 3a, Part 4, Termination of
             66      Parental Rights Act;
             67          (c) the division shall direct the Office of Vital Records and Statistics to conduct a search
             68      for a birth certificate for the child and an Initiation of Proceedings to Establish Paternity Registry
             69      for unmarried biological fathers maintained by the Office of Vital Records and Statistics within
             70      the Department of Health and provide notice to each potential father identified on the registry.
             71      Notice of termination of parental rights proceedings shall be provided in the same manner as is
             72      utilized for any other termination proceeding in which the identity of the child's parents is
             73      unknown;
             74          (d) if no person has affirmatively identified himself or herself within two weeks after
             75      notice is complete and established paternity by scientific testing within as expeditious a time frame
             76      as practicable, a hearing on the petition for termination of parental rights shall be scheduled; and
             77          (e) if a nonrelinquishing parent is not identified, relinquishment of a newborn child
             78      pursuant to the provisions of this part shall be considered grounds for termination of parental rights
             79      of both the relinquishing and nonrelinquishing parents under [Subsection] Section 78-3a-407 [(9)].
             80          (6) If at any time prior to the adoption, a court finds it is in the best interest of the child,
             81      the court shall deny the petition for termination of parental rights.
             82          (7) The division shall provide for, or contract with a licensed child-placing agency to
             83      provide for expeditious adoption of the newborn child.
             84          (8) So long as the person relinquishing a newborn child is the child's parent or designee,
             85      and there is no abuse or neglect, safe relinquishment of a newborn child in substantial compliance
             86      with the provisions of this part is an affirmative defense to any potential criminal liability for
             87      abandonment or neglect relating to that relinquishment.

             88          Section 2. Section 78-3a-311 is amended to read:
             89           78-3a-311. Dispositional hearing -- Reunification services -- Exceptions.
             90          (1) The court may make any of the dispositions described in Section 78-3a-118 , place the
             91      child in the custody or guardianship of any individual or public or private entity or agency, order
             92      protective supervision, family preservation, medical or mental health treatment, or other services.
             93          (2) (a) (i) Whenever the court orders continued removal at the dispositional hearing, and
             94      that the minor remain in the custody of the Division of Child and Family Services, it shall first
             95      establish a primary permanency goal for the minor and determine whether, in view of the primary
             96      permanency goal, reunification services are appropriate for the child and the child's family,
             97      pursuant to Subsection (3).
             98          (ii) When the court determines that reunification services are appropriate for the child and
             99      the child's family, the court shall provide for reasonable parent-time with the parent or parents
             100      from whose custody the child was removed, unless parent-time is not in the best interest of the
             101      child.
             102          (iii) In cases where obvious sexual abuse, abandonment, or serious physical abuse or
             103      neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
             104      or to, in any other way, attempt to provide reunification services, or to attempt to rehabilitate the
             105      offending parent or parents. In all cases, the child's health, safety, and welfare shall be the court's
             106      paramount concern in determining whether reasonable efforts to reunify should be made.
             107          (b) (i) In addition to the primary permanency goal, the court shall establish a concurrent
             108      permanency goal. The concurrent permanency goal shall include a representative list of the
             109      conditions under which the primary permanency goal will be abandoned in favor of the concurrent
             110      permanency goal and an explanation of the effect of abandoning or modifying the primary
             111      permanency goal.
             112          (ii) A permanency hearing shall be conducted in accordance with Subsection
             113      78-3a-312 (1)(b) within 30 days if something other than reunification is initially established as a
             114      child's primary permanency goal.
             115          (iii) The court may amend a child's primary permanency goal before the establishment of
             116      a final permanency plan under Section 78-3a-312 . The court is not limited to the terms of the
             117      concurrent permanency goal in the event that the primary permanency goal is abandoned. If, at
             118      anytime, the court determines that reunification is no longer a child's primary permanency goal,

             119      the court shall conduct a permanency hearing in accordance with Section 78-3a-312 within the
             120      earlier of 30 days of the court's determination or 12 months from the original removal of the child.
             121          (c) (i) If the court determines that reunification services are appropriate, it shall order that
             122      the division make reasonable efforts to provide services to the [minor] child and [his] the child's
             123      parent for the purpose of facilitating reunification of the family, for a specified period of time. In
             124      providing those services, the child's health, safety, and welfare shall be the division's paramount
             125      concern, and the court shall so order.
             126          (ii) The court shall determine whether the services offered or provided by the division
             127      under the treatment plan constitute "reasonable efforts" on the part of the division. The court shall
             128      also determine and define the responsibilities of the parent under the treatment plan. Those duties
             129      and responsibilities shall be identified on the record, for the purpose of assisting in any future
             130      determination regarding the provision of reasonable efforts, in accordance with state and federal
             131      law.
             132          (iii) The time period for reunification services may not exceed 12 months from the date
             133      that the child was initially removed from [his] the child's home. Nothing in this section may be
             134      construed to entitle any parent to an entire 12 months of reunification services.
             135          (iv) If reunification services have been ordered, the court may terminate those services at
             136      any time.
             137          (v) If, at any time, continuation of reasonable efforts to reunify a child is determined to be
             138      inconsistent with the final permanency plan for the child established pursuant to Subsection
             139      78-3a-312 , then measures shall be taken, in a timely manner, to place the child in accordance with
             140      the permanency plan, and to complete whatever steps are necessary to finalize the permanent
             141      placement of the child.
             142          (d) Any physical custody of the minor by the parent or a relative during the period
             143      described in Subsection (2)(c) does not interrupt the running of the period.
             144          (e) (i) If reunification services have been ordered, a permanency hearing shall be
             145      conducted by the court in accordance with Section 78-3a-312 at the expiration of the time period
             146      for reunification services. The permanency hearing shall be held no later than 12 months after the
             147      original removal of the child.
             148          (ii) If reunification services have not been ordered, a permanency hearing shall be
             149      conducted within 30 days, in accordance with Section 78-3a-312 .

             150          (f) With regard to a child who is 36 months of age or younger at the time the child is
             151      initially removed from the home, the court shall:
             152          (i) hold a permanency hearing eight months after the date of the initial removal, pursuant
             153      to Section 78-3a-312 ; and
             154          (ii) order the discontinuance of those services after eight months from the initial removal
             155      of the child from the home if the parent or parents have not made substantial efforts to comply with
             156      the treatment plan.
             157          (g) With regard to a child in the custody of the division whose parent or parents have been
             158      ordered to receive reunification services but who have abandoned that child for a period of six
             159      months since the date that reunification services were ordered, the court shall terminate
             160      reunification services, and the division shall petition the court for termination of parental rights.
             161          (3) (a) Because of the state's interest in and responsibility to protect and provide
             162      permanency for children who are abused, neglected, or dependent, the Legislature finds that a
             163      parent's interest in receiving reunification services is limited. The court may determine that efforts
             164      to reunify a child with [his] the child's family are not reasonable or appropriate, based on the
             165      individual circumstances, and that reunification services should not be provided. In determining
             166      "reasonable efforts" to be made with respect to a child, and in making "reasonable efforts," the
             167      child's health, safety, and welfare shall be the paramount concern.
             168          (b) There is a presumption that reunification services should not be provided to a parent
             169      if the court finds, by clear and convincing evidence, that any of the following circumstances exist:
             170          (i) the whereabouts of the parents are unknown, based upon a verified affidavit indicating
             171      that a reasonably diligent search has failed to locate the parent;
             172          (ii) the parent is suffering from a mental illness of such magnitude that it renders him
             173      incapable of utilizing reunification services; that finding shall be based on competent evidence
             174      from mental health professionals establishing that, even with the provision of services, the parent
             175      is unlikely to be capable of adequately caring for the child within 12 months;
             176          (iii) the minor has been previously adjudicated as an abused child due to physical or sexual
             177      abuse, that following the adjudication the child was removed from the custody of his parent, was
             178      subsequently returned to the custody of that parent, and the minor is being removed due to
             179      additional physical or sexual abuse;
             180          (iv) the parent has caused the death of another child through abuse or neglect or has

             181      committed, aided, abetted, attempted, conspired, or solicited to commit murder or manslaughter
             182      of a child or child abuse homicide;
             183          (v) the minor has suffered severe abuse by the parent or by any person known by the
             184      parent, if the parent knew or reasonably should have known that the person was abusing the minor;
             185          (vi) the minor has been adjudicated an abused child as a result of severe abuse by the
             186      parent, and the court finds that it would not benefit the child to pursue reunification services with
             187      the offending parent;
             188          (vii) the parent's rights have been terminated with regard to any other child;
             189          (viii) the child has been removed from his home on at least two previous occasions and
             190      reunification services were offered or provided to the family at those times; or
             191          (ix) the parent has abandoned the child for a period of six months or longer; or
             192          (x) any other circumstance that the court determines should preclude reunification efforts
             193      or services.
             194          (4) (a) Failure of the parent to respond to previous services or comply with any previous
             195      treatment plan, the fact that the child was abused while the parent was under the influence of drugs
             196      or alcohol, a past history of violent behavior, whether a parent continues to live with an individual
             197      who abused the child, any patterns of the parent's behavior that have exposed the child to repeated
             198      abuse, or testimony by a competent professional that the parent's behavior is unlikely to be
             199      successful, shall be considered in determining whether reunification services are appropriate.
             200          (b) The court shall also consider whether the parent has expressed an interest in
             201      reunification with the child, in determining whether reunification services are appropriate.
             202          (5) If reunification services are not ordered pursuant to Subsection (3)(a), and the
             203      whereabouts of a parent become known within six months of the out-of-home placement of the
             204      minor, the court may order the division to provide reunification services. The time limits
             205      described in Subsection (2), however, are not tolled by the parent's absence.
             206          (6) If a parent is incarcerated or institutionalized, the court shall order reasonable services
             207      unless it determines that those services would be detrimental to the minor. In determining
             208      detriment, the court shall consider the age of the child, the degree of parent-child bonding, the
             209      length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of
             210      detriment to the child if services are not offered and, for minors ten years of age or older, the
             211      minor's attitude toward the implementation of family reunification services, and any other

             212      appropriate factors. Reunification services for an incarcerated parent are subject to the 12-month
             213      limitation imposed in Subsection (2). Reunification services for an institutionalized parent are
             214      subject to the 12-month limitation imposed in Subsection (2), unless the court determines that
             215      continued reunification services would be in the child's best interest.
             216          (7) If, pursuant to Subsection (3)(b)(ii), (iii), (iv),(v), (vi), (vii), (viii), (ix), or (x), the court
             217      does not order reunification services, a permanency hearing shall be conducted within 30 days, in
             218      accordance with Section 78-3a-312 .
             219          Section 3. Section 78-3a-311.5 is enacted to read:
             220          78-3a-311.5. Six-month review hearing -- Court determination regarding reasonable
             221      efforts by the Division of Child and Family Services and parental compliance with treatment
             222      plan requirements
             223          If reunification efforts have been ordered by the court, a hearing shall be held no more than
             224      six months after initial removal of a child from the child's home, in order for the court to determine
             225      whether:
             226          (1) the division has provided and is providing "reasonable efforts" to reunify a family, in
             227      accordance with the treatment plan established under Section 62A-4a-205 ; and
             228          (2) the parent has fulfilled or is fulfilling identified duties and responsibilities in order to
             229      comply with the requirements of the treatment plan.
             230          Section 4. Section 78-3a-407 is amended to read:
             231           78-3a-407. Grounds for termination of parental rights.
             232          (1) The court may terminate all parental rights with respect to [one or both parents] a
             233      parent if it finds any one of the following:
             234          [(1)] (a) that the parent [or parents have] has abandoned the child;
             235          [(2)] (b) that the parent [or parents have] has neglected or abused the child;
             236          [(3)] (c) that the parent [or parents are] is unfit or incompetent;
             237          [(4)] (d) that the child is being cared for in an out-of-home placement under the
             238      supervision of the court or the division[, that the division or other responsible agency has made
             239      a diligent effort to provide appropriate services] and the parent has substantially neglected, wilfully
             240      refused, or has been unable or unwilling to remedy the circumstances that cause the child to be in
             241      an out-of-home placement, and there is a substantial likelihood that the parent will not be capable
             242      of exercising proper and effective parental care in the near future;

             243          [(5)] (e) failure of parental adjustment, as defined in this chapter;
             244          [(6)] (f) that only token efforts have been made by the parent [or parents]:
             245          [(a)] (i) to support or communicate with the child;
             246          [(b)] (ii) to prevent neglect of the child;
             247          [(c)] (iii) to eliminate the risk of serious physical, mental, or emotional abuse of the child;
             248      or
             249          [(d)] (iv) to avoid being an unfit parent;
             250          [(7)] (g) the parent [or parents have] has voluntarily relinquished [their] the parent's
             251      parental rights to the child, and the court finds that termination is in the child's best interest;
             252          [(8)] (h) the parent [or parents], after a period of trial during which the child was returned
             253      to live in [his] the child's own home, substantially and continuously or repeatedly refused or failed
             254      to give the child proper parental care and protection; or
             255          [(9)] (i) the terms and conditions of safe relinquishment of a newborn child have been
             256      complied with, pursuant to Title 62A, Chapter 4a, Part 8, Safe Relinquishment of a Newborn
             257      Child.
             258          (2) The court may not terminate the parental rights of a parent because the parent has failed
             259      to complete the requirements of a treatment plan.
             260          (3) (a) In any case in which the court has directed the division to provide reunification
             261      services to a parent, the court must find that the division made reasonable efforts to provide those
             262      services before the court may terminate the parent's rights under Subsection (1)(b), (c), (d), (e), (f),
             263      or (h).
             264          (b) The court is not required to make the finding under Subsection (3)(a) before
             265      terminating a parent's rights under Subsection (1)(b) based upon abuse or neglect found by the
             266      court to have occurred subsequent to adjudication.

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