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S.B. 208 Enrolled
This act modifies the Human Services Code and the Judicial Code. The act provides that
a minor may not be removed from the minor's home or school or be taken into protective
custody with or without a warrant unless the minor's parent or guardian consents, or
there is probable cause to believe any one or more of enumerated circumstances exist.
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 amends provisions relating to the authority to issue search warrants and subpoenas.
This act affects sections of Utah Code Annotated 1953 as follows:
62A-4a-202.1, as last amended by Chapter 265, Laws of Utah 2002
78-3a-106, as last amended by Chapter 265, Laws of Utah 2002
78-3a-306, as last amended by Chapter 265, Laws of Utah 2002
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 with or without warrant or
court order -- 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 [
consent of the minor's parent or guardian, a warrant, or a court order issued under Section
78-3a-106 , remove a minor from the minor's home or school, or take a minor into protective
accompanied by a peace officer, or without a peace officer when a peace officer is not reasonably
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 the minor's parent 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 minor's
health, safety, and welfare shall be the worker's paramount concern.
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 78-3a-106 is amended to read:
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) The court may issue a warrant authorizing a child protective services worker or
peace officer to search for a child and take the child into protective custody if it appears to the
court upon a verified petition, recorded sworn testimony or 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:
(i) there is an immediate threat to the safety of a child; and
(ii) the applicant certifies to the court in writing or by recorded sworn testimony as to the
efforts, if any, that have been made to give notice to the minor's parent or guardian and the
reasons supporting the claim that notice and an opportunity to be heard should not be required.
(b) A warrant removing a child from his home or school, or having the effect of
depriving a parent or guardian of the care, custody, and control of their minor child, may not be
issued without notice to the minor's parents and opportunity to be heard unless the requirements
of Subsections (2)(a)(i) and (ii) have been satisfied.
house or premises by force, if necessary, in order to remove the child.
designated by the court.
(3) The parent or guardian to be notified must be the minor's primary caregiver, or the
person who has custody of the minor, when the order is sought.
Section 3. 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
(c) emergency kinship placement under Subsection 62A-4a-202.1 [
(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
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
(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
(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
(6) If the child is in the protective custody of the division, the division shall report to the
(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
(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
(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 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
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
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)[
(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.
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