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Second Substitute S.B. 208

Senator Bill Wright proposes the following substitute bill:


             1     
WARRANT FOR REMOVAL OF MINOR FROM

             2     
HOME

             3     
2003 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Sponsor: Bill Wright

             6      This act modifies the Human Services Code and the Judicial Code. The act provides that
             7      a minor may not be removed from the minor's home or school or be taken into protective
             8      custody with or without a criminal warrant unless the minor's parent or guardian
             9      consents, or there is probable cause to believe any one or more of enumerated
             10      circumstances exist. The act amends and clarifies the grounds for a court ordering that a
             11      minor be removed from the minor's home or otherwise taken into protective custody,
             12      after the filing of a petition alleging abuse, neglect, or dependency. The act makes
             13      technical changes. The act amends provisions relating to the authority to issue search
             14      warrants and subpoenas.
             15      This act affects sections of Utah Code Annotated 1953 as follows:
             16      AMENDS:
             17          62A-4a-202.1, as last amended by Chapter 265, Laws of Utah 2002
             18          78-3a-106, as last amended by Chapter 265, Laws of Utah 2002
             19          78-3a-306, as last amended by Chapter 265, Laws of Utah 2002
             20      Be it enacted by the Legislature of the state of Utah:
             21          Section 1. Section 62A-4a-202.1 is amended to read:
             22           62A-4a-202.1. Taking a minor into protective custody with or without warrant or
             23      court order -- Peace officer -- Division of Child and Family Services caseworker --
             24      Consent or specified circumstances -- Shelter care or emergency kinship.
             25          (1) A state officer, peace officer, or child welfare worker may not, without [a] the



             26      consent of the minor's parent or guardian, a criminal warrant, or a court order issued under
             27      Section 78-3a-106 , remove a minor from the minor's home or school, or take a minor into
             28      protective custody unless[:] there exist exigent circumstances.
             29          [(a) a parent or guardian consents; or]
             30          [(b) the officer or worker has, at the time, probable cause to believe that one or more of
             31      the following circumstances exist:]
             32          [(i) there is imminent danger to the physical health or safety of the minor, and the
             33      minor's physical health or safety may not be protected without removing the minor from the
             34      custody of the minor's parent or guardian;]
             35          [(ii) there is a substantial risk to the minor of being physically or sexually abused by a
             36      parent or guardian, a member of the parent's or guardian's household, or another person known
             37      to the parent or guardian;]
             38          [(iii) the parent or guardian is unwilling to have physical custody of the minor;]
             39          [(iv) the minor has been abandoned without any provision for the minor's support;]
             40          [(v) a parent who has been incarcerated or institutionalized has not arranged or cannot
             41      arrange for safe and appropriate care for the minor;]
             42          [(vi) a relative or other adult custodian with whom the parent or guardian has left the
             43      minor is unwilling or unable to provide care or support for the minor, the whereabouts of the
             44      parent or guardian are unknown, and reasonable efforts to locate the parent or guardian have
             45      been unsuccessful; or]
             46          [(vii) an infant has been abandoned, as defined in Section 78-3a-313.5 .]
             47          [(2) A state officer, peace officer, or child welfare worker may not remove a minor from
             48      the minor's home or school or take a minor into protective custody under Subsection (1) if
             49      motivated solely by an intent to seize or obtain evidence unrelated to the potential abuse or
             50      neglect allegation.]
             51          [(3) In the absence of circumstances that demonstrate a substantial, immediate threat to
             52      the health or safety of a minor, a state officer, peace officer, or child welfare worker may not
             53      remove a minor from the minor's home or school or take a minor into protective custody under
             54      Subsection (1) on the basis of:]
             55          [(a) mental illness or poverty of the parent or guardian; or]
             56          [(b) educational neglect.]



             57          [(4)] (2) A child welfare worker within the division may take action under Subsection
             58      (1) accompanied by a peace officer, or without a peace officer when a peace officer is not
             59      reasonably available.
             60          [(5)] (3) If possible, consistent with the minor's safety and welfare, before taking a
             61      minor into protective custody, the worker shall also determine whether there are services
             62      reasonably available to the worker which, if provided to the minor's parent or to the minor,
             63      would eliminate the need to remove the minor from the custody of the minor's parent or
             64      guardian. If those services are reasonably available, they shall be utilized. In determining
             65      whether services are reasonably available, and in making reasonable efforts to provide those
             66      services, the minor's health, safety, and welfare shall be the worker's paramount concern.
             67          [(6)] (4) (a) A minor removed or taken into custody under this section may not be
             68      placed or kept in a secure detention facility pending court proceedings unless the minor is
             69      detainable based on guidelines promulgated by the Division of Youth Corrections.
             70          (b) A minor removed from the custody of the minor's parent or guardian but who does
             71      not require physical restriction shall be given temporary care in:
             72          (i) a shelter facility; or
             73          (ii) an emergency kinship placement in accordance with Section 62A-4a-209 .
             74          Section 2. Section 78-3a-106 is amended to read:
             75           78-3a-106. Search warrants and subpoenas -- Authority to issue.
             76          (1) The court has authority to issue search warrants, subpoenas, or investigative
             77      subpoenas in criminal cases, delinquency, and abuse, neglect, and dependency proceedings for
             78      the same purposes, in the same manner and pursuant to the same procedures set forth in the
             79      code of criminal procedure for the issuance of search warrants, subpoenas, or investigative
             80      subpoenas in other trial courts in the state.
             81          [(2) (a) If it appears to the court upon an affidavit sworn to by a peace officer or any
             82      other person, and upon the examination of other witnesses, if required by the judge, that there
             83      is probable cause to believe that a child is being ill-treated by the child's parent, guardian, or
             84      custodian, or is being detained, ill-treated, or harbored against the desires of the child's parent,
             85      guardian, or custodian, in any place within the jurisdiction of the court, the court may issue a
             86      warrant authorizing a child protective services worker or peace officer to search for the child
             87      and take the child into protective custody.]


             88          (2) (a) The court may issue a warrant authorizing a child protective services worker or
             89      peace officer to search for a child and take the child into protective custody if it appears to the
             90      court upon a verified petition, recorded sworn testimony or an affidavit sworn to by a peace
             91      officer or any other person, and upon the examination of other witnesses, if required by the
             92      judge, that there is probable cause to believe that:
             93          (i) there is an immediate threat to the safety of a child; and
             94          (ii) the applicant certifies to the court in writing or by recorded sworn testimony as to
             95      the efforts, if any, that have been made to give notice to the minor's parent or guardian and the
             96      reasons supporting the claim that notice and an opportunity to be heard should not be required.
             97          (b) A warrant removing a child from his home or school, or having the effect of
             98      depriving a parent or guardian of the care, custody, and control of their minor child, may not be
             99      issued without notice to the minor's parents and opportunity to be heard unless the
             100      requirements of Subsection 78-3a-106(a)(i)and(ii) have been satisfied.
             101          [(b)] (c) Pursuant to Section 77-23-210 , a peace officer making the search may enter a
             102      house or premises by force, if necessary, in order to remove the child.
             103          [(c)] (d) The person executing the warrant shall then take the child to the place of
             104      shelter designated by the court.
             105          (3) The parent or guardian to be notified must be the minor's primary care giver, or the
             106      person who has custody of the minor, when the order is sought.
             107          Section 3. Section 78-3a-306 is amended to read:
             108           78-3a-306. Shelter hearing.
             109          (1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
             110      after any one or all of the following occur:
             111          (a) removal of the child from his home by the Division of Child and Family Services;
             112          (b) placement of the child in the protective custody of the Division of Child and Family
             113      Services;
             114          (c) emergency kinship placement under Subsection 62A-4a-202.1 [(6)] (4); or
             115          (d) as an alternative to removal of the child, a parent has entered a domestic violence
             116      shelter at the request of the Division of Child and Family Services.
             117          (2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
             118      through (1)(d), the division shall issue a notice that contains all of the following:


             119          (a) the name and address of the person to whom the notice is directed;
             120          (b) the date, time, and place of the shelter hearing;
             121          (c) the name of the minor on whose behalf a petition is being brought;
             122          (d) a concise statement regarding:
             123          (i) the reasons for removal or other action of the division under Subsection (1); and
             124          (ii) the allegations and code sections under which the proceeding has been instituted;
             125          (e) a statement that the parent or guardian to whom notice is given, and the minor, are
             126      entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
             127      indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
             128      provided; and
             129          (f) a statement that the parent or guardian is liable for the cost of support of the minor
             130      in the protective custody, temporary custody, and custody of the division, and the cost for legal
             131      counsel appointed for the parent or guardian under Subsection (2)(e), according to his financial
             132      ability.
             133          (3) That notice shall be personally served as soon as possible, but no later than one
             134      business day after removal of a child from his home, on:
             135          (a) the appropriate guardian ad litem; and
             136          (b) both parents and any guardian of the minor, unless they cannot be located.
             137          (4) The following persons shall be present at the shelter hearing:
             138          (a) the child, unless it would be detrimental for the child;
             139          (b) the child's parents or guardian, unless they cannot be located, or fail to appear in
             140      response to the notice;
             141          (c) counsel for the parents, if one has been requested;
             142          (d) the child's guardian ad litem;
             143          (e) the caseworker from the Division of Child and Family Services who has been
             144      assigned to the case; and
             145          (f) the attorney from the attorney general's office who is representing the division.
             146          (5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's
             147      parent or guardian, if present, and any other person having relevant knowledge, to provide
             148      relevant testimony. The court may also provide an opportunity for the minor to testify.
             149          (b) The court may consider all relevant evidence, in accordance with the Utah Rules of


             150      Juvenile Procedure. The court shall hear relevant evidence presented by the minor, his parent
             151      or guardian, the requesting party, or their counsel, but may in its discretion limit testimony and
             152      evidence to only that which goes to the issues of removal and the child's need for continued
             153      protection.
             154          (6) If the child is in the protective custody of the division, the division shall report to
             155      the court:
             156          (a) the reasons why the minor was removed from the parent's or guardian's custody;
             157          (b) any services provided to the child and his family in an effort to prevent removal;
             158          (c) the need, if any, for continued shelter;
             159          (d) the available services that could facilitate the return of the minor to the custody of
             160      his parent or guardian; and
             161          (e) whether the child has any relatives who may be able and willing to take temporary
             162      custody.
             163          (7) The court shall consider all relevant evidence provided by persons or entities
             164      authorized to present relevant evidence pursuant to this section.
             165          (8) If necessary to protect the child, preserve the rights of a party, or for other good
             166      cause shown, the court may grant no more than one time-limited continuance, not to exceed
             167      five judicial days.
             168          (9) If the child is in the protective custody of the division, the court shall order that the
             169      minor be released from the protective custody of the division unless it finds, by a
             170      preponderance of the evidence, that any one of the following exist:
             171          (a) there is a substantial danger to the physical health or safety of the minor and the
             172      minor's physical health or safety may not be protected without removing him from his parent's
             173      custody. If a minor has previously been adjudicated as abused, neglected, or dependent and a
             174      subsequent incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie
             175      evidence that the child cannot safely remain in the custody of his parent;
             176          (b) the minor is suffering emotional damage, as may be indicated by, but is not limited
             177      to, extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or
             178      others, and there are no reasonable means available by which the minor's emotional health may
             179      be protected without removing the minor from the custody of his parent;
             180          (c) the minor or another minor residing in the same household has been physically or


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


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


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