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H.B. 222

             1     

CHILD WELFARE PROCEEDINGS

             2     
AMENDMENTS

             3     
2003 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Greg J. Curtis

             6      This act modifies the Judicial Code. This act phases in expanded access to abuse, neglect,
             7      and dependency hearings and records of those hearings, beginning with Juvenile Court
             8      districts identified by the Judicial Council as pilot districts. This act requires the Judicial
             9      Council to report to the Legislature on the effects of this act. This act includes revisors
             10      instructions.
             11      This act affects sections of Utah Code Annotated 1953 as follows:
             12      AMENDS:
             13          78-3-21, as last amended by Chapter 221, Laws of Utah 2000
             14          78-3a-115, as last amended by Chapters 171 and 237, Laws of Utah 1998
             15          78-3a-116, as last amended by Chapter 274, Laws of Utah 1998
             16          78-3a-406, as renumbered and amended by Chapter 260, Laws of Utah 1994
             17      ENACTS:
             18          78-3a-115.1, Utah Code Annotated 1953
             19      This act enacts uncodified material.
             20      Be it enacted by the Legislature of the state of Utah:
             21          Section 1. Section 78-3-21 is amended to read:
             22           78-3-21. Judicial Council -- Creation -- Members -- Terms and election --
             23      Responsibilities -- Reports.
             24          (1) The Judicial Council, established by Article VIII, Section 12, Utah Constitution,
             25      shall be composed of:
             26          (a) the chief justice of the Supreme Court;
             27          (b) one member elected by the justices of the Supreme Court;



             28          (c) one member elected by the judges of the Court of Appeals;
             29          (d) five members elected by the judges of the district courts;
             30          (e) two members elected by the judges of the juvenile courts;
             31          (f) three members elected by the justice court judges; and
             32          (g) a member or ex officio member of the Board of Commissioners of the Utah State
             33      Bar who is an active member of the Bar in good standing elected by the Board of
             34      Commissioners.
             35          (2) (a) The chief justice of the Supreme Court shall act as presiding officer of the
             36      council and chief administrative officer for the courts. The chief justice shall vote only in the
             37      case of a tie.
             38          (b) All members of the council shall serve for three-year terms. If a council member
             39      should die, resign, retire, or otherwise fail to complete a term of office, the appropriate
             40      constituent group shall elect a member to complete the term of office. In courts having more
             41      than one member, the members shall be elected to staggered terms. The person elected to the
             42      Judicial Council by the Board of Commissioners shall be a member or ex officio member of
             43      the Board of Commissioners and an active member of the Bar in good standing at the time the
             44      person is elected. The person may complete a three-year term of office on the Judicial Council
             45      even though the person ceases to be a member or ex officio member of the Board of
             46      Commissioners. The person shall be an active member of the Bar in good standing for the
             47      entire term of the Judicial Council.
             48          (c) Elections shall be held under rules made by the Judicial Council.
             49          (3) The council is responsible for the development of uniform administrative policy for
             50      the courts throughout the state. The presiding officer of the Judicial Council is responsible for
             51      the implementation of the policies developed by the council and for the general management of
             52      the courts, with the aid of the administrator. The council has authority and responsibility to:
             53          (a) establish and assure compliance with policies for the operation of the courts,
             54      including uniform rules and forms; and
             55          (b) publish and submit to the governor, the chief justice of the Supreme Court, and the
             56      Legislature an annual report of the operations of the courts, which shall include financial and
             57      statistical data and may include suggestions and recommendations for legislation.
             58          (4) (a) The Judicial Council shall make rules establishing:



             59          (i) standards for judicial competence; and
             60          (ii) a formal program for the evaluation of judicial performance containing the
             61      elements of and meeting the requirements of this Subsection (4).
             62          (b) The Judicial Council shall ensure that the formal judicial performance evaluation
             63      program has improvement in the performance of individual judges, court commissioners, and
             64      the judiciary as its goal.
             65          (c) The Judicial Council shall ensure that the formal judicial performance evaluation
             66      program includes at least all of the following elements:
             67          (i) a requirement that judges complete a certain number of hours of approved judicial
             68      education each year;
             69          (ii) a requirement that each judge certify that he is:
             70          (A) physically and mentally competent to serve; and
             71          (B) in compliance with the Codes of Judicial Conduct and Judicial Administration; and
             72          (iii) a requirement that the judge receive a satisfactory score on questions identified by
             73      the Judicial Council as relating to judicial certification on a survey of members of the Bar
             74      developed by the Judicial Council in conjunction with the American Bar Association.
             75          (d) The Judicial Council shall ensure that the formal judicial performance evaluation
             76      program considers at least the following criteria:
             77          (i) integrity;
             78          (ii) knowledge;
             79          (iii) understanding of the law;
             80          (iv) ability to communicate;
             81          (v) punctuality;
             82          (vi) preparation;
             83          (vii) attentiveness;
             84          (viii) dignity;
             85          (ix) control over proceedings; and
             86          (x) skills as a manager.
             87          (e) (i) The Judicial Council shall provide the judicial performance evaluation
             88      information and the disciplinary data required by Subsection 20A-7-702 (2) to the Lieutenant
             89      Governor for publication in the voter information pamphlet.


             90          (ii) Not later than August 1 of the year before the expiration of the term of office of a
             91      municipal court judge, the Judicial Council shall provide the judicial performance evaluation
             92      information required by Subsection 20A-7-702 (2) to the appointing authority of a municipal
             93      justice court judge.
             94          (5) The council shall establish standards for the operation of the courts of the state
             95      including, but not limited to, facilities, court security, support services, and staff levels for
             96      judicial and support personnel.
             97          (6) The council shall by rule establish the time and manner for destroying court
             98      records, including computer records, and shall establish retention periods for these records.
             99          (7) (a) Consistent with the requirements of judicial office and security policies, the
             100      council shall establish procedures to govern the assignment of state vehicles to public officers
             101      of the judicial branch.
             102          (b) The vehicles shall be marked in a manner consistent with Section 41-1a-407 and
             103      may be assigned for unlimited use, within the state only.
             104          (8) (a) The council shall advise judicial officers and employees concerning ethical
             105      issues and shall establish procedures for issuing informal and formal advisory opinions on
             106      these issues.
             107          (b) Compliance with an informal opinion is evidence of good faith compliance with the
             108      Code of Judicial Conduct.
             109          (c) A formal opinion constitutes a binding interpretation of the Code of Judicial
             110      Conduct.
             111          (9) (a) The council shall establish written procedures authorizing the presiding officer
             112      of the council to appoint judges of courts of record by special or general assignment to serve
             113      temporarily in another level of court in a specific court or generally within that level. The
             114      appointment shall be for a specific period and shall be reported to the council.
             115          (b) These procedures shall be developed in accordance with Subsection 78-3-24 (10)
             116      regarding temporary appointment of judges.
             117          (10) The Judicial Council may by rule designate municipalities in addition to those
             118      designated by statute as a location of a trial court of record. There shall be at least one court
             119      clerk's office open during regular court hours in each county. Any trial court of record may
             120      hold court in any municipality designated as a location of a court of record. Designations by


             121      the Judicial Council may not be made between July 1, 1997, and July 1, 1998.
             122          (11) The Judicial Council shall by rule determine whether the administration of a court
             123      shall be the obligation of the administrative office of the courts or whether the administrative
             124      office of the courts should contract with local government for court support services.
             125          (12) The Judicial Council may by rule direct that a district court location be
             126      administered from another court location within the county.
             127          (13) The Judicial Council shall establish and supervise the Office of Guardian Ad
             128      Litem Director, in accordance with the provisions of Sections 78-3a-911 and 78-3a-912 , and
             129      assure compliance of the guardian ad litem program with state and federal law, regulation, and
             130      policy, and court rules.
             131          (14) The Judicial Council shall establish and maintain, in cooperation with the Office of
             132      Recovery Services within the Department of Human Services, the part of the state case registry
             133      that contains records of each support order established or modified in the state on or after
             134      October 1, 1998, as is necessary to comply with the Social Security Act, 42 U.S.C. Sec. 654a.
             135          (15) (a) On or before November 1, 2003, the Judicial Council, by rule, shall select one
             136      or more districts as pilot districts for purposes of Sections 78-3a-115 , 78-3a-115.1 , and
             137      78-3a-116 .
             138          (b) Prior to the 2005 Annual General Session, the Judicial Council shall report to the
             139      Child Welfare Legislative Oversight Panel and the Judiciary Interim Committee on the effects
             140      of this act and recommend whether the provisions of this act should be continued, modified, or
             141      repealed.
             142          Section 2. Section 78-3a-115 is amended to read:
             143           78-3a-115. Hearings -- Public excluded, exceptions -- Victims admitted -- Minor's
             144      cases heard separately from adult cases -- Minor or parents or custodian heard
             145      separately -- Continuance of hearing -- Consolidation of proceedings involving more than
             146      one minor.
             147          (1) Hearings in minor's cases shall be held before the court without a jury and may be
             148      conducted in an informal manner.
             149          (a) In abuse, neglect, and dependency cases in all districts other than pilot districts
             150      selected by the Judicial Council under Subsection 78-3-21 (15)(a), the court shall exclude all
             151      persons from hearings held prior to July 1, 2005 who do not have a direct interest in the


             152      proceedings.
             153          (b) In delinquency cases the court shall admit all persons who have a direct interest in
             154      the case and may admit persons requested by the parent or legal guardian to be present. The
             155      court shall exclude all other persons except as provided in Subsection (1)(c).
             156          (c) In delinquency cases in which the minor charged is 14 years of age or older, the
             157      court shall admit any person unless the hearing is closed by the court upon findings on the
             158      record for good cause if:
             159          (i) the minor has been charged with an offense which would be a felony if committed
             160      by an adult; or
             161          (ii) the minor is charged with an offense that would be a class A or B misdemeanor if
             162      committed by an adult, and the minor has been previously charged with an offense which
             163      would be a misdemeanor or felony if committed by an adult.
             164          (d) The victim of any act charged in a petition or information involving an offense
             165      committed by a minor which if committed by an adult would be a felony or a class A or class B
             166      misdemeanor shall, upon request, be afforded all rights afforded victims in Title 77, Chapter
             167      36, Cohabitant Abuse Procedures Act, Title 77, Chapter 37, Victims' Rights, and Title 77,
             168      Chapter 38, Rights of Crime Victims Act. The notice provisions in Section 77-38-3 do not
             169      apply to important juvenile justice hearings as defined in Section 77-38-2 .
             170          (e) A victim, upon request to appropriate juvenile court personnel, shall have the right
             171      to inspect and duplicate juvenile court legal records that have not been expunged concerning:
             172          (i) the scheduling of any court hearings on the petition;
             173          (ii) any findings made by the court; and
             174          (iii) any sentence or decree imposed by the court.
             175          (2) Minor's cases shall be heard separately from adult cases. The minor or his parents
             176      or custodian may be heard separately when considered necessary by the court. The hearing
             177      may be continued from time to time to a date specified by court order.
             178          (3) When more than one minor is involved in a home situation which may be found to
             179      constitute neglect or dependency, or when more than one minor is alleged to be involved in the
             180      same law violation, the proceedings may be consolidated, except that separate hearings may be
             181      held with respect to disposition.
             182          Section 3. Section 78-3a-115.1 is enacted to read:


             183          78-3a-115.1. Access to abuse, neglect, and dependency hearings.
             184          (1) This section applies:
             185          (a) beginning November 1, 2003, to districts selected by the Judicial Council as pilot
             186      districts under Subsection 78-3-21 (15)(a); and
             187          (b) beginning July 1, 2005, to all other districts.
             188          (2) (a) In abuse, neglect, and dependency cases the court shall admit any person to a
             189      hearing, including a hearing under Subsection 78-3a-320 (3), unless the court makes a finding
             190      upon the record that the person's presence at the hearing would:
             191          (i) be detrimental to the best interest of a child who is a party to the proceeding;
             192          (ii) impair the fact-finding process; or
             193          (iii) be otherwise contrary to the interests of justice.
             194          (b) The court may exclude a person from a hearing under Subsection (2)(a) on its own
             195      motion or by motion of a party to the proceeding.
             196          Section 4. Section 78-3a-116 is amended to read:
             197           78-3a-116. Hearings -- Record -- County attorney or district attorney
             198      responsibilities -- Attorney general responsibilities -- Admissibility of evidence.
             199          (1) (a) A verbatim record of the proceedings shall be taken by an official court reporter
             200      or by means of a mechanical recording device in all cases that might result in deprivation of
             201      custody as defined in this chapter. In all other cases a verbatim record shall also be made
             202      unless dispensed with by the court.
             203          (b) (i) Notwithstanding any other provision, including Title 63, Chapter 2, Government
             204      Records Access and Management Act, a record of a proceeding made under Subsection(1)(a)
             205      shall be released by the court to any person upon a finding on the record for good cause.
             206          (ii) Following a petition for a record of a proceeding made under Subsection (1)(a), the
             207      court shall:
             208          (A) provide notice to all subjects of the record that a request for release of the record
             209      has been made; and
             210          (B) allow sufficient time for the subjects of the record to respond before making a
             211      finding on the petition.
             212          (iii) A record of a proceeding may not be released under this Subsection (1)(b) if the
             213      court's jurisdiction over the subjects of the proceeding ended more than 12 months prior to the


             214      request.
             215          (iv) For purposes of this Subsection (1)(b):
             216          (A) "record of a proceeding" does not include documentary materials of any type
             217      submitted to the court as part of the proceeding, including items submitted under Subsection
             218      (4)(a); and
             219          (B) "subjects of the record" includes the child's guardian ad litem, the child's legal
             220      guardian, the Division of Child and Family Services, and any other party to the proceeding.
             221          (v) This Subsection (1)(b) applies:
             222          (A) to records of proceedings made on or after November 1, 2003 in districts selected
             223      by the Judicial Council as pilot districts under Subsection 78-3-21 (15)(a); and
             224          (B) to records of proceedings made on or after July 1, 2005 in all other districts.
             225          (2) (a) Except as provided in Subsection (2)(b), the county attorney or, if within a
             226      prosecution district, the district attorney shall represent the state in any proceeding in a minor's
             227      case.
             228          (b) The attorney general shall enforce all provisions of Title 62A, Chapter 4a, Child
             229      and Family Services, and Title 78, Chapter 3a, Juvenile Courts, relating to:
             230          (i) protection or custody of an abused, neglected, or dependent child; and
             231          (ii) petitions for termination of parental rights.
             232          (c) The attorney general shall represent the Division of Child and Family Services in
             233      actions involving minors who have not been adjudicated as abused or neglected, but who are
             234      otherwise committed to the custody of that division by the juvenile court, and who are
             235      classified in the division's management information system as having been placed in custody
             236      primarily on the basis of delinquent behavior or a status offense. Nothing in this Subsection
             237      (2)(c) may be construed to affect the responsibility of the county attorney or district attorney to
             238      represent the state in those matters, in accordance with the provisions of Subsection (2)(a).
             239          (3) The board may adopt special rules of procedure to govern proceedings involving
             240      violations of traffic laws or ordinances, fish and game laws, and boating laws. However,
             241      proceedings involving offenses under Section 78-3a-506 are governed by that section regarding
             242      suspension of driving privileges.
             243          (4) (a) For the purposes of determining proper disposition of the minor in dispositional
             244      hearings and establishing the fact of abuse, neglect, or dependency in adjudication hearings and


             245      in hearings upon petitions for termination of parental rights, written reports and other material
             246      relating to the minor's mental, physical, and social history and condition may be received in
             247      evidence and may be considered by the court along with other evidence. The court may require
             248      that the person who wrote the report or prepared the material appear as a witness if the person
             249      is reasonably available.
             250          (b) For the purpose of determining proper disposition of a minor alleged to be or
             251      adjudicated as abused, neglected, or dependent, dispositional reports prepared by Foster Care
             252      Citizen Review Boards pursuant to Section 78-3g-103 may be received in evidence and may be
             253      considered by the court along with other evidence. The court may require any person who
             254      participated in preparing the dispositional report to appear as a witness, if the person is
             255      reasonably available.
             256          (5) For the purpose of establishing the fact of abuse, neglect, or dependency, the court
             257      may, in its discretion, consider evidence of statements made by a minor under eight years of
             258      age to a person in a trust relationship.
             259          Section 5. Section 78-3a-406 is amended to read:
             260           78-3a-406. Notice -- Nature of proceedings.
             261          (1) After a petition for termination of parental rights has been filed, notice of that fact
             262      and of the time and place of the hearing shall be provided, in accordance with the Utah Rules
             263      of Civil Procedure, to the parents, the guardian, the person or agency having legal custody of
             264      the child, and to any person acting in loco parentis to the child.
             265          (2) A hearing shall be held specifically on the question of termination of parental rights
             266      no sooner than ten days after service of summons is complete. A verbatim record of the
             267      proceedings shall be taken and the parties shall be advised of their right to counsel. The
             268      summons shall contain a statement to the effect that the rights of the parent or parents are
             269      proposed to be permanently terminated in the proceedings. That statement may be contained in
             270      the summons originally issued in the proceeding or in a separate summons subsequently issued.
             271          (3) The proceedings are civil in nature and are governed by the Utah Rules of Civil
             272      Procedure. The court shall in all cases require the petitioner to establish the facts by clear and
             273      convincing evidence, and shall give full and careful consideration to all of the evidence
             274      presented with regard to the constitutional rights and claims of the parent and, if a parent is
             275      found, by reason of his conduct or condition, to be unfit or incompetent based upon any of the


             276      grounds for termination described in this part, the court shall then consider the welfare and best
             277      interest of the child of paramount importance in determining whether termination of parental
             278      rights shall be ordered.
             279          [(4) Any hearing held pursuant to this part shall be held in closed court without
             280      admittance of any person who is not necessary to the action or proceeding, unless the court
             281      determines that holding the hearing in open court will not be detrimental to the child.]
             282          Section 6. Revisors instructions.
             283          It is the intent of the Legislature that, in preparing the Utah Code database for
             284      publication, the Office of Legislative Research and General Counsel shall change the reference
             285      in Subsection 78-3-21 (15)(b) from "this act" to the act's designated chapter number in Laws of
             286      Utah, 2003.




Legislative Review Note
    as of 1-24-03 11:39 AM


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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