H.B. 140 Enrolled

CHILD AND FAMILY SERVICES AND
RELATED JUDICIAL CODE AMENDMENTS
2004 GENERAL SESSION
STATE OF UTAH
Sponsor: LaVar Christensen

LONG TITLE
General Description:
This bill amends child welfare provisions in Child and Family Services and the Judicial
Code.
Highlighted Provisions:
This bill:
. modifies definitions;
. exempts health care decisions of a mature minor from the definition of neglect;
. requires the legislative auditor general to complete an audit of child welfare cases to
measure compliance by attorney guardians ad litem with their statutory duties;
. requires the Child Welfare Legislative Oversight Panel to study and make
recommendations on specified child abuse, neglect, and dependency issues;
. requires the juvenile court to recognize the rights of parents and children and the
limits placed on the Division of Child and Family Services;
. clarifies how a petition before a juvenile court may be dismissed at any stage of the
court proceedings;
. makes amendments regarding appointment of a guardian ad litem;
. modifies reunification services provisions;
. requires the court to advise an attorney guardian ad litem of the attorney guardian ad
litem's duties;
. requires an attorney guardian ad litem to timely communicate with the parents or
guardian of a minor;
. prohibits an attorney guardian ad litem from making public statements about a child

abuse, neglect, or dependency case; and
. makes technical corrections.
Monies Appropriated in this Bill:
None
Other Special Clauses:
This bill takes effect on July 1, 2004.
Utah Code Sections Affected:
AMENDS:
62A-4a-101, as last amended by Chapters 281 and 283, Laws of Utah 2002
62A-4a-118, as last amended by Chapters 94 and 232, Laws of Utah 2003
62A-4a-207, as last amended by Chapter 93, Laws of Utah 2003
78-3a-102, as last amended by Chapter 329, Laws of Utah 1997
78-3a-103 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah 2003
78-3a-109, as last amended by Chapter 180, Laws of Utah 2001
78-3a-112, as renumbered and amended by Chapter 365, Laws of Utah 1997
78-3a-311, as last amended by Chapter 246, Laws of Utah 2002
78-3a-912, as last amended by Chapter 168, Laws of Utah 2002
78-7-45, as last amended by Chapter 168, Laws of Utah 2002
ENACTS:
78-3a-103.5, Utah Code Annotated 1953
REPEALS:
78-3a-305.1, as enacted by Chapter 274, Laws of Utah 1998

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 62A-4a-101 is amended to read:
62A-4a-101. Definitions.
As used in this chapter:
(1) "Abuse" means:

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(a) actual or threatened nonaccidental physical or mental harm;
(b) negligent treatment;
(c) sexual exploitation; or
(d) any sexual abuse.
(2) "Adoption services" means placing children for adoption, subsidizing adoptions under
Section 62A-4a-105 , supervising adoption placements until the adoption is finalized by the court,
conducting adoption studies, preparing adoption reports upon request of the court, and providing
postadoptive placement services, upon request of a family, for the purpose of stabilizing a possible
disruptive placement.
(3) "Board" means the Board of Child and Family Services established in accordance with
Sections 62A-1-105 , 62A-1-107 , and 62A-4a-102 .
(4) "Child" has the same meaning as "minor," as defined in this section.
(5) "Consumer" means a person who receives services offered by the division in
accordance with this chapter.
(6) "Chronic physical abuse" means repeated or patterned physical abuse.
(7) "Chronic neglect" means a repeated or patterned failure or refusal by a parent,
guardian, or custodian to provide necessary care for a minor's safety, morals, or well-being.
(8) "Chronic emotional abuse" means repeated or patterned emotional abuse.
(9) "Custody," with regard to the division, means the custody of a child in the division as
of the date of disposition.
(10) "Day-care services" means care of a child for a portion of the day which is less than
24 hours, in [his] the child's own home by a responsible person, or outside of [his] the child's
home in a day-care center, family group home, or family child care home.
(11) "Dependent child" or "dependency" means a child, or the condition of a child, who is
homeless or without proper care through no fault of the child's parent, guardian, or custodian.
(12) "Director" means the director of the Division of Child and Family Services.
(13) "Division" means the Division of Child and Family Services.
(14) (a) "Domestic violence services" means temporary shelter, treatment, and related

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services to persons who are victims of abuse and their dependent children and treatment services
for domestic violence perpetrators.
(b) As used in this Subsection (14) "abuse" means the same as that term is defined in
Section 30-6-1 , and "domestic violence perpetrator" means a person who is alleged to have
committed, has been convicted of, or has pled guilty to an act of domestic violence as defined in
Subsection 77-36-1 (2).
(15) "Homemaking service" means the care of individuals in their domiciles, and help
given to individual caretaker relatives to achieve improved household and family management
through the services of a trained homemaker.
(16) "Mature minor" means a person less than 18 years of age whom the court determines
is of an age and maturity and who reasonably demonstrates the capacity to make reasonable health
care decisions on the minor's own behalf.
[(16)] (17) "Minor" means a person under 18 years of age. "Minor" may also include a
person under 21 years of age for whom the division has been specifically ordered by the juvenile
court to provide services.
[(17)] (18) "Natural parent" means a minor's biological or adoptive parent, and includes a
minor's noncustodial parent.
[(18)] (19) (a) "Neglect" means:
(i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
Relinquishment of a Newborn Child;
(ii) subjecting a child to mistreatment or abuse;
(iii) lack of proper parental care by reason of the fault or habits of the parent, guardian, or
custodian;
(iv) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
subsistence, education, or medical care, including surgery or psychiatric services when required,
or any other care necessary for [his] the health, safety, morals, or well-being of the parent's or
guardian's child; or
(v) a child at risk of being neglected or abused because another child in the same home is

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neglected or abused.
(b) The aspect of neglect relating to education, described in Subsection [(18)] (19)(a)(iv),
means that, after receiving notice that a child has been frequently absent from school without
good cause, or that the child has failed to cooperate with school authorities in a reasonable
manner, a parent or guardian fails to make a good faith effort to ensure that the child receives an
appropriate education.
(c) A parent or guardian legitimately practicing religious beliefs and who, for that reason,
does not provide specified medical treatment for a child, is not guilty of neglect.
(d) A parent or guardian may not be found guilty of neglect for the medical decisions
made by a mature minor.
[(19)] (20) "Protective custody," with regard to the division, means the shelter of a child
by the division from the time the child is removed from the child's home until the shelter hearing,
or the child's return home, whichever occurs earlier.
[(20)] (21) "Protective services" means expedited services that are provided:
(a) in response to evidence of neglect, abuse, or dependency of a minor;
(b) in an effort to substantiate evidence of neglect, abuse, or dependency;
(c) to a cohabitant who is neglecting or abusing a child, in order to help the cohabitant
develop recognition of the cohabitant's duty of care and of the causes of neglect or abuse, and to
strengthen the cohabitant's ability to provide safe and acceptable care; and
(d) in cases where the child's welfare is endangered:
(i) to bring the situation to the attention of the appropriate juvenile court and law
enforcement agency;
(ii) to cause a protective order to be issued for the protection of the minor, when
appropriate; and
(iii) to protect the child from the circumstances that endanger the child's welfare
including, when appropriate, removal from the child's home, placement in substitute care, and
petitioning the court for termination of parental rights.
[(21)] (22) "Services to unwed parents" means social, educational, and medical services

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arranged for or provided to unwed parents to help them plan for themselves and the unborn child.
[(22)] (23) "Severe neglect" means neglect that causes or threatens to cause serious harm
to a minor.
[(23)] (24) "Shelter care" means the temporary care of minors in nonsecure facilities.
[(24)] (25) "State" means a state of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern
Mariana Islands, or a territory or possession administered by the United States.
[(25)] (26) "Severe emotional abuse" means emotional abuse that causes or threatens to
cause serious harm to a minor.
[(26)] (27) "Severe physical abuse" means physical abuse that causes or threatens to
cause serious harm to a minor.
[(27)] (28) "State plan" means the written description of the programs for children, youth,
and family services administered by the division in accordance with federal law.
[(28)] (29) "Status offense" means a violation of the law that would not be a violation but
for the age of the offender.
[(29)] (30) "Substantiated" or "substantiation" means a judicial finding based on a
preponderance of the evidence that abuse or neglect occurred. Each allegation made or identified
in a given case shall be considered separately in determining whether there should be a finding of
substantiated.
[(30)] (31) "Substitute care" means:
(a) the placement of a minor in a family home, group care facility, or other placement
outside the minor's own home, either at the request of a parent or other responsible relative, or
upon court order, when it is determined that continuation of care in the child's own home would
be contrary to the child's welfare;
(b) services provided for a child awaiting placement; and
(c) the licensing and supervision of a substitute care facility.
[(31)] (32) "Supported" means a finding by the division based on the evidence available at
the completion of an investigation that there is a reasonable basis to conclude that abuse, neglect,

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or dependency occurred. Each allegation made or identified during the course of the investigation
shall be considered separately in determining whether there should be a finding of supported.
[(32)] (33) "Temporary custody," with regard to the division, means the custody of a
child in the division from the date of the shelter hearing until disposition.
[(33)] (34) "Transportation services" means travel assistance given to an individual with
escort service, if necessary, to and from community facilities and resources as part of a service
plan.
[(34)] (35) "Unsubstantiated" means a judicial finding that there is insufficient evidence to
conclude that abuse or neglect occurred.
[(35)] (36) "Unsupported" means a finding at the completion of an investigation that there
is insufficient evidence to conclude that abuse, neglect, or dependency occurred. However, a
finding of unsupported means also that the division worker did not conclude that the allegation
was without merit.
[(36)] (37) "Without merit" means a finding at the completion of an investigation by the
division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur, or that
the alleged perpetrator was not responsible for the abuse, neglect, or dependency.
Section 2. Section 62A-4a-118 is amended to read:
62A-4a-118. Annual review of child welfare referrals and cases by executive
director -- Accountability to the Legislature -- Review by legislative auditor general.
(1) The division shall use principles of quality management systems, including statistical
measures of processes of service, and the routine reporting of performance data to employees.
(2) (a) In addition to development of quantifiable outcome measures and performance
measures in accordance with Section 62A-4a-117 , the executive director, or [his] the executive
director's designee, shall annually review a randomly selected sample of child welfare referrals to
and cases handled by the division. The purpose of that review shall be to assess whether the
division is adequately protecting children and providing appropriate services to families, in
accordance with the provisions of Title 62A, Chapter 4a, Child and Family Services, and Title 78,
Chapter 3a, Part 3, Abuse, Neglect, and Dependency Proceedings, and Part 4, Termination of

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Parental Rights Act. The review shall focus directly on the outcome of cases to children and
families, and not simply on procedural compliance with specified criteria.
(b) The executive director shall report, regarding [his] the review of those cases, to the
Legislative Auditor General and the Child Welfare Legislative Oversight Panel.
(c) Information obtained as a result of the review shall be provided to caseworkers,
supervisors, and division personnel involved in the respective cases, for purposes of education,
training, and performance evaluation.
(3) The executive director's review and report to the Legislature shall include:
(a) the criteria used by the executive director, or [his] the executive director's designee, in
making the evaluation;
(b) findings regarding whether state statutes, division policy, and legislative policy were
followed in each sample case;
(c) findings regarding whether, in each sample case, referrals, removals, or cases were
appropriately handled by the division and its employees, and whether children were adequately
and appropriately protected and appropriate services provided to families, in accordance with the
provisions of Title 62A, Chapter 4a, Child and Family Services, Title 78, Chapter 3a, Part 3,
Abuse, Neglect, and Dependency Proceedings, and Part 4, Termination of Parental Rights Act,
and division policy;
(d) an assessment of the division's intake procedures and decisions, including an
assessment of the appropriateness of decisions not to accept referrals; and
(e) an assessment of the appropriateness of the division's assignment of priority.
(4) (a) In addition to the review conducted by the executive director, beginning July 1,
2004, the Legislative Auditor General shall audit a sample of child welfare referrals to and cases
handled by the division and report his findings to the Child Welfare Legislative Oversight Panel.
(b) An audit under Subsection (4)(a) shall be conducted at least once every three years,
but may be conducted more frequently pursuant to Subsection (4)(d).
(c) With regard to the sample of referrals, removals, and cases, the Legislative Auditor
General's report may include:

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(i) findings regarding whether state statutes, division policy, and legislative policy were
followed by the division and its employees;
(ii) a determination regarding whether referrals, removals, and cases were appropriately
handled by the division and its employees, and whether children were adequately and
appropriately protected and appropriate services provided for families, in accordance with the
provisions of Title 62A, Chapter 4a, Child and Family Services, Title 78, Chapter 3a, Part 3,
Abuse, Neglect, and Dependency Proceedings, and Part 4, Termination of Parental Rights Act,
and division policy;
(iii) an assessment of the division's intake procedures and decisions, including an
assessment of the appropriateness of decisions not to accept referrals;
(iv) an assessment of the appropriateness of the division's assignment of priority;
(v) a determination regarding whether the department's review process is effecting
beneficial change within the division and accomplishing the mission established by the Legislature
and the department for that review process; and
(vi) findings regarding any other issues identified by the auditor or others under
Subsection (4)(d).
(d) An audit under Subsection (4)(a) may be initiated by:
(i) the Audit Subcommittee of the Legislative Management Committee;
(ii) the Child Welfare Legislative Oversight Panel; or
(iii) the Legislative Auditor General, based on the results of the executive director's
review under Subsection (2).
(e) (i) Prior to the 2005 Annual General Session of the Legislature, the legislative auditor
general shall complete an audit of child welfare cases to measure compliance by attorney
guardians ad litem with their statutory duties.
(ii) This audit shall be considered one of the periodic audits required by Subsection (4)(b).
Section 3. Section 62A-4a-207 is amended to read:
62A-4a-207. Child Welfare Legislative Oversight Panel -- Responsibilities.
(1) (a) There is created the Child Welfare Legislative Oversight Panel composed of the

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following members:
(i) two members of the Senate, one from the majority party and one from the minority
party, appointed by the president of the Senate; and
(ii) three members of the House of Representatives, two from the majority party and one
from the minority party, appointed by the speaker of the House of Representatives.
(b) Members of the panel shall serve for two-year terms, or until their successors are
appointed.
(c) A vacancy exists whenever a member ceases to be a member of the Legislature, or
when a member resigns from the panel. Vacancies shall be filled by the appointing authority, and
the replacement shall fill the unexpired term.
(2) The president of the Senate shall designate one of the senators appointed to the panel
under Subsection (1) as the Senate chair of the panel. The speaker of the House of
Representatives shall designate one of the representatives appointed to the panel under Subsection
(1) as the House chair of the panel.
(3) The panel shall follow the interim committee rules established by the Legislature.
(4) The panel shall:
(a) examine and observe the process and execution of laws governing the child welfare
system by the executive branch and the judicial branch;
(b) upon request, receive testimony from the public, the juvenile court, and from all state
agencies involved with the child welfare system including, but not limited to, the division, other
offices and agencies within the department, the attorney general's office, the Office of the
Guardian Ad Litem Director, and school districts;
(c) before October 1, 2002, and before October 1 of each year thereafter receive reports
from the division, the attorney general, and the judicial branch identifying the cases not in
compliance with the time limits established in Section 78-3a-308 , regarding pretrial and
adjudication hearings, Section 78-3a-311 , regarding dispositional hearings and reunification
services, and Section 78-3a-312 , regarding permanency hearings and petitions for termination,
and the reasons for the noncompliance;

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(d) receive recommendations from, and make recommendations to the governor, the
Legislature, the attorney general, the division, the Office of the Guardian Ad Litem Director, the
juvenile court, and the public;
(e) (i) receive reports from the executive branch and the judicial branch on budgetary
issues impacting the child welfare system; and
(ii) recommend, as it considers advisable, budgetary proposals to the Health and Human
Services Joint Appropriations Subcommittee, the Executive Offices and Criminal Justice
Appropriations Subcommittee, and the Executive Appropriations Committee, which
recommendation should be made before December 1 of each year;
(f) study and recommend proposed changes to laws governing the child welfare system;
(g) study actions the state can take to preserve, unify, and strengthen the child's family
ties whenever possible in the child's best interest, including recognizing the constitutional rights
and claims of parents whenever those family ties are severed or infringed;
(h) during the 2004 interim, study and make recommendations to the Legislature on:
(i) the feasibility of requiring the juvenile court, except in exigent circumstances, to
adjudicate a petition alleging child abuse, neglect, or dependency prior to ordering a child into
protective custody;
(ii) establishing a right to a jury trial in a juvenile court proceeding:
(A) to adjudicate a petition alleging child abuse, neglect, or dependency; or
(B) to terminate a parent's rights;
(iii) the adequacy of warrant provisions in protecting children balanced against preserving
and strengthening family ties to the fullest possible extent under the law;
(iv) whether a presumption of parental fitness and competence in judicial proceedings
should be made in determining whether a parent's rights should be terminated;
(v) except in clear and verifiable exigent circumstances, how to otherwise strengthen
procedural due process safeguards, including notice and an opportunity to be heard, for the
parents of children that come under the jurisdiction of the juvenile court for possible child abuse,
neglect, or dependency;

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(vi) how to strengthen defense counsel for parents of children taken into protective
custody;
(vii) whether compliance with 42 U.S.C. Sec. 5106a, the federal Child Abuse Prevention
and Treatment and Adoption Reform requirements which include the mandatory appointment of a
guardian ad litem in child abuse, neglect, and dependency cases with the approximately $250,000
in federal child abuse prevention and treatment grant monies for which the state annually qualifies
provides a sufficient comparative benefit to the state in relation to its strong interest in preserving
and strengthening family ties to the fullest extent possible under the law; and
(viii) whether the evidentiary standard for the reunification services presumption and
proceedings to terminate a parent's rights should be changed from clear and convincing to beyond
a reasonable doubt;
[(h)] (i) perform such other duties related to the oversight of the child welfare system as
the panel considers appropriate; and
[(i)] (j) annually report its findings and recommendations to the president of the Senate,
the speaker of the House of Representatives, the Health and Human Services Interim Committee,
and the Judiciary Interim Committee.
(5) (a) The panel has authority to review and discuss individual cases.
(b) When an individual case is discussed, the panel's meeting may be closed pursuant to
Title 52, Chapter 4, Open and Public Meetings.
(c) When discussing an individual case, the panel shall make reasonable efforts to identify
and consider the concerns of all parties to the case.
(6) (a) (i) The panel has authority to make recommendations to the Legislature, the
governor, the Board of Juvenile Court Judges, the division, and any other statutorily created
entity related to the policies and procedures of the child welfare system.
(ii) The panel does not have authority to make recommendations to the court, the
division, or any other public or private entity regarding the disposition of any individual case.
(b) The panel may hold public hearings, as it considers advisable, in various locations
within the state in order to afford all interested persons an opportunity to appear and present their

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views regarding the child welfare system in this state.
(7) (a) All records of the panel regarding individual cases shall be classified private, and
may be disclosed only in accordance with federal law and the provisions of Title 63, Chapter 2,
Government Records Access and Management Act.
(b) (i) The panel shall have access to all of the division's records, including those
regarding individual cases.
(ii) In accordance with Title 63, Chapter 2, Government Records Access Management
Act, all documents and information received by the panel shall maintain the same classification
that was designated by the division.
(8) In order to accomplish its oversight functions, the panel has:
(a) all powers granted to legislative interim committees in Section 36-12-11 ; and
(b) legislative subpoena powers under Title 36, Chapter 14, Legislative Subpoena
Powers.
(9) Members of the panel shall receive salary and expenses in accordance with Section
36-2-2 .
(10) (a) The Office of Legislative Research and General Counsel shall provide staff
support to the panel.
(b) The panel is authorized to employ additional professional assistance and other staff
members as it considers necessary and appropriate.
Section 4. Section 78-3a-102 is amended to read:
78-3a-102. Establishment of juvenile court -- Organization and status of court --
Purpose.
(1) There is established for the state a juvenile court.
(2) The juvenile court is a court of record. It shall have a seal, and its judges, clerks, and
referees have the power to administer oaths and affirmations.
(3) The juvenile court is of equal status with the district courts of the state.
(4) The juvenile court is established as a forum for the resolution of all matters properly
brought before it, consistent with applicable constitutional and statutory requirements of due

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process.
(5) The purpose of the court under this chapter is to:
(a) promote public safety and individual accountability by the imposition of appropriate
sanctions on persons who have committed acts in violation of law;
(b) order appropriate measures to promote guidance and control, preferably in the minor's
own home, as an aid in the prevention of future unlawful conduct and the development of
responsible citizenship;
(c) where appropriate, order rehabilitation, reeducation, and treatment for persons who
have committed acts bringing them within the court's jurisdiction;
(d) adjudicate matters that relate to minors who are beyond parental or adult control and
to establish appropriate authority over these minors by means of placement and control orders;
(e) adjudicate matters that relate to abused, neglected, and dependent minors and to
provide care and protection for these minors by placement, protection, and custody orders;
(f) remove a minor from parental custody only where the minor's safety or welfare, or the
public safety, may not otherwise be adequately safeguarded; and
(g) consistent with the ends of justice, [strive to] act in the best interests of the [minor's]
minor in all cases and [attempt to] preserve and strengthen family ties [where possible].
Section 5. Section 78-3a-103 (Effective 07/01/04) is amended to read:
78-3a-103 (Effective 07/01/04). Definitions.
(1) As used in this chapter:
(a) "Abused child" includes a minor less than 18 years of age who:
(i) has suffered or been threatened with nonaccidental physical or mental harm, negligent
treatment, or sexual exploitation; or
(ii) has been the victim of any sexual abuse.
(b) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
alleged in the petition have been proved.
(c) "Adult" means a person 18 years of age or over, except that persons 18 years or over
under the continuing jurisdiction of the juvenile court pursuant to Section 78-3a-121 shall be

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referred to as minors.
(d) "Board" means the Board of Juvenile Court Judges.
(e) "Child placement agency" means:
(i) a private agency licensed to receive minors for placement or adoption under this code;
or
(ii) a private agency receiving minors for placement or adoption in another state, which
agency is licensed or approved where such license or approval is required by law.
(f) "Commit" means to transfer legal custody.
(g) "Court" means the juvenile court.
(h) "Dependent child" includes a minor who is homeless or without proper care through
no fault of [his] the child's parent, guardian, or custodian.
(i) "Deprivation of custody" means transfer of legal custody by the court from a parent or
the parents or a previous legal custodian to another person, agency, or institution.
(j) "Detention" means home detention and secure detention as defined in Section
62A-7-101 for the temporary care of minors who require secure custody in physically restricting
facilities:
(i) pending court disposition or transfer to another jurisdiction; or
(ii) while under the continuing jurisdiction of the court.
(k) "Division" means the Division of Child and Family Services.
(l) "Formal referral" means a written report from a peace officer or other person
informing the court that a minor is or appears to be within the court's jurisdiction and that a
petition may be filed.
(m) "Group rehabilitation therapy" means psychological and social counseling of one or
more persons in the group, depending upon the recommendation of the therapist.
(n) "Guardianship of the person" includes the authority to consent to marriage, to
enlistment in the armed forces, to major medical, surgical, or psychiatric treatment, and to legal
custody, if legal custody is not vested in another person, agency, or institution.
(o) "Habitual truant" is a school-age minor who has received more than two truancy

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citations within one school year from the school in which the minor is or should be enrolled and
eight absences without a legitimate or valid excuse or who, in defiance of efforts on the part of
school authorities as required under Section 53A-11-103 , refuses to regularly attend school or
any scheduled period of the school day.
(p) "Legal custody" means a relationship embodying the following rights and duties:
(i) the right to physical custody of the minor;
(ii) the right and duty to protect, train, and discipline the minor;
(iii) the duty to provide the minor with food, clothing, shelter, education, and ordinary
medical care;
(iv) the right to determine where and with whom the minor shall live; and
(v) the right, in an emergency, to authorize surgery or other extraordinary care.
(q) "Mature minor" means a person less than 18 years of age whom the court determines
is of an age and maturity and who reasonably demonstrates the capacity to make reasonable health
care decisions on the minor's own behalf.
[(q)] (r) "Minor" means a person under the age of 18 years. It includes the term "child"
as used in other parts of this chapter.
[(r)] (s) "Natural parent" means a minor's biological or adoptive parent, and includes the
minor's noncustodial parent.
[(s)] (t) (i) "Neglected child" means a minor:
(A) whose parent, guardian, or custodian has abandoned the minor, except as provided in
Title 62A, Chapter 4a, Part 8, Safe Relinquishment of a Newborn Child;
(B) whose parent, guardian, or custodian has subjected the minor to mistreatment or
abuse;
(C) who lacks proper parental care by reason of the fault or habits of the parent, guardian,
or custodian;
(D) whose parent, guardian, or custodian fails or refuses to provide proper or necessary
subsistence, education, or medical care, including surgery or psychiatric services when required,
or any other care necessary for health, safety, morals, or well-being; or

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(E) who is at risk of being a neglected or abused child as defined in this chapter because
another minor in the same home is a neglected or abused child as defined in this chapter.
(ii) The aspect of neglect related to education, described in Subsection (1)[(s)](t)(i)(D),
means that, after receiving notice that a minor has been frequently absent from school without
good cause, or that the minor has failed to cooperate with school authorities in a reasonable
manner, a parent or guardian fails to make a good faith effort to ensure that the minor receives an
appropriate education.
(iii) A parent or guardian legitimately practicing religious beliefs and who, for that reason,
does not provide specified medical treatment for a minor, is not guilty of neglect.
(iv) A parent or guardian may not be found guilty of neglect for the medical decisions
made by a mature minor.
[(t)] (u) "Nonjudicial adjustment" means closure of the case by the assigned probation
officer without judicial determination upon the consent in writing of the minor, the parent, legal
guardian or custodian, and the assigned probation officer.
[(u)] (v) "Probation" means a legal status created by court order following an
adjudication on the ground of a violation of law or under Section 78-3a-104 , whereby the minor is
permitted to remain in [his] the minor's home under prescribed conditions and under supervision
by the probation department or other agency designated by the court, subject to return to the
court for violation of any of the conditions prescribed.
[(v)] (w) "Protective supervision" means a legal status created by court order following
an adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted
to remain in [his] the minor's home, and supervision and assistance to correct the abuse, neglect,
or dependency is provided by the probation department or other agency designated by the court.
[(w)] (x) (i) "Residual parental rights and duties" means those rights and duties remaining
with the parent after legal custody or guardianship, or both, have been vested in another person or
agency, including the responsibility for support, the right to consent to adoption, the right to
determine the child's religious affiliation, and the right to reasonable parent-time unless restricted
by the court.

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(ii) If no guardian has been appointed, "residual parental rights and duties" also include
the right to consent to marriage, to enlistment, and to major medical, surgical, or psychiatric
treatment.
[(x)] (y) "Secure facility" means any facility operated by or under contract with the
Division of Juvenile Justice Services, that provides 24-hour supervision and confinement for youth
offenders committed to the division for custody and rehabilitation.
[(y)] (z) "Shelter" means the temporary care of minors in physically unrestricted facilities
pending court disposition or transfer to another jurisdiction.
[(z)] (aa) "State supervision" means a disposition which provides a more intensive level of
intervention than standard probation but is less intensive or restrictive than a community
placement with the Division of Juvenile Justice Services.
[(aa)] (bb) "Substantiated" has the same meaning as defined in Section 62A-4a-101 .
[(bb)] (cc) "Supported" has the same meaning as defined in Section 62A-4a-101 .
[(cc)] (dd) "Termination of parental rights" means the permanent elimination of all
parental rights and duties, including residual parental rights and duties, by court order.
[(dd)] (ee) "Therapist" means a person employed by a state division or agency for the
purpose of conducting psychological treatment and counseling of a minor in its custody, or any
other person licensed or approved by the state for the purpose of conducting psychological
treatment and counseling.
[(ee)] (ff) "Unsubstantiated" has the same meaning as defined in Section 62A-4a-101 .
[(ff)] (gg) "Without merit" has the same meaning as defined in Section 62A-4a-101 .
(2) As used in Part 3, Abuse, Neglect, and Dependency Proceedings, with regard to the
Division of Child and Family Services:
(a) "Custody" means the custody of a minor in the Division of Child and Family Services
as of the date of disposition.
(b) "Protective custody" means the shelter of a minor by the Division of Child and Family
Services from the time the minor is removed from home until the shelter hearing, or the minor's
return home, whichever occurs earlier.

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(c) "Temporary custody" means the custody of a minor in the Division of Child and
Family Services from the date of the shelter hearing until disposition.
Section 6. Section 78-3a-103.5 is enacted to read:
78-3a-103.5. Parents' and children's rights -- Division limits.
In all child abuse, neglect, and dependency proceedings under this chapter, the court shall
recognize, as provided in Section 62A-4a-201 , the rights of parents and children and the limits
placed on the division.
Section 7. Section 78-3a-109 is amended to read:
78-3a-109. Title of petition and other court documents -- Form and contents of
petition -- Order for temporary custody -- Physical or psychological examination of minor,
parent, or guardian -- Dismissal of petition.
(1) The petition and all subsequent court documents in the proceeding shall be entitled:
"State of Utah, in the interest of...................., a person under 18 years of age (or a person
under 21 years of age)."
(2) The petition shall be verified and statements in the petition may be made upon
information and belief.
(3) The petition shall be written in simple and brief language and include the facts which
bring the minor within the jurisdiction of the court, as provided in Section 78-3a-104 .
(4) The petition shall further state:
(a) the name, age, and residence of the minor;
(b) the names and residences of the minor's parents;
(c) the name and residence of the guardian, if there is one;
(d) the name and address of the nearest known relative, if no parent or guardian is known;
and
(e) the name and residence of the person having physical custody of the minor. If any of
the facts required are not known by the petitioner, the petition shall so state.
(5) At any time after a petition is filed, the court may make an order providing for
temporary custody of the minor.

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(6) The court may order that a minor concerning whom a petition has been filed shall be
examined by a physician, surgeon, psychiatrist, or psychologist and may place the minor in a
hospital or other facility for examination. After notice and a hearing set for the specific purpose,
the court may order a similar examination of a parent or guardian whose ability to care for a
minor is at issue, if the court finds from the evidence presented at the hearing that the parent's or
guardian's physical, mental, or emotional condition may be a factor in causing the neglect,
dependency, or delinquency of the minor.
(7) Pursuant to Rule 506(d)(3), Utah Rules of Evidence, examinations conducted
pursuant to Subsection (6) are not privileged communications, but are exempt from the general
rule of privilege.
(8) The court may, upon its own motion or a motion from any party to the proceeding,
dismiss a petition at any stage of the proceedings.
(9) If the petition is filed under Section 78-3a-305 or 78-3a-405 or if the matter is
referred to the court under Subsection 78-3a-105 (3)(b):
(a) the court may require the parties to participate in mediation in accordance with Title
78, Chapter 31b, Alternative Dispute Resolution; and
(b) the division [of Child and Family Services] or a party to the petition may request and
the court may order the parties to participate in a family unity conference under the authority of
the division [of Child and Family Services] in accordance with Subsection (10).
(10) (a) A family unity conference may be ordered by the court for any of the following
purposes:
(i) discussing and reviewing the case history;
(ii) designing a service plan for the child and family, including concurrent planning;
(iii) discussing a visitation schedule and rules for visitation;
(iv) identifying possible kinship placements under the requirements of Subsection
78-3a-307 (5), and designing services to support the kinship placement;
(v) conflict resolution between the family and division [of Child and Family Services]
staff;

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(vi) discussing child custody issues; or
(vii) crisis clinical intervention to reduce trauma to the child and family.
(b) The family unity conference may be attended by individuals chosen by the family and
the division [of Child and Family Services], and may include extended family members, friends,
clergy, service providers, and others who may support the family in keeping the child safe.
(c) A family unity conference may not be held in the following circumstances:
(i) when there is a criminal charge pending in the case;
(ii) to resolve petition disputes; and
(iii) when a family unity conference may pose a threat to the safety of a child or other
family member.
(d) With regard to a family unity conference ordered by a court under Subsection (9)(b):
(i) the requirements of Subsection 78-31b-7 (3)(b) apply except all parties to the
proceeding:
(A) shall be given no less than five days notice of any recommendation made to the court
from the family unity conference; and
(B) shall be given an opportunity to be heard by the court; and
(ii) the confidentiality requirements of Section 78-31b-8 apply, except that admissions by
a party to the allegations on the petition are admissible at any proceeding.
Section 8. Section 78-3a-112 is amended to read:
78-3a-112. Appearances -- Parents to appear with minor -- Failure to appear --
Contempt -- Warrant of arrest, when authorized -- Parent's employer to grant time off --
Appointment of guardian ad litem.
(1) Any person required to appear who, without reasonable cause, fails to appear may be
proceeded against for contempt of court, and the court may cause a bench warrant to issue to
produce the person in court.
(2) In all cases when a minor is required to appear in court, the parents, guardian, or
other person with legal custody of the minor shall appear with the minor unless excused by the
judge.

- 21 -

(a) An employee may request permission to leave the workplace for the purpose of
attending court if the employee has been notified by the juvenile court that his minor is required to
appear before the court.
(b) An employer must grant permission to leave the workplace with or without pay if the
employee has requested permission at least seven days in advance or within 24 hours of the
employee receiving notice of the hearing.
(3) If a parent or other person who signed a written promise to appear and bring the
minor to court under Section 78-3a-113 or 78-3a-114 , fails to appear and bring the minor to court
on the date set in the promise, or, if the date was to be set, after notification by the court, a
warrant may be issued for the apprehension of that person or the minor, or both.
(4) Willful failure to perform the promise is a misdemeanor if, at the time of the execution
of the promise, the promisor is given a copy of the promise which clearly states that failure to
appear and have the minor appear as promised is a misdemeanor. The juvenile court shall have
jurisdiction to proceed against the promisor in adult proceedings pursuant to Part 8, Adult
Offenses.
(5) (a) The court shall endeavor, through use of the warrant of arrest if necessary, as
provided in Subsection (6), or by other means, to ensure the presence at all hearings of one or
both parents or of the guardian of the minor.
(b) If neither a parent nor guardian is present at the court proceedings, the court may
appoint a guardian ad litem to protect the interest of the minor. [A guardian ad litem may also be
appointed whenever necessary for the welfare of the minor, whether or not a parent or guardian is
present.]
(6) A warrant may be issued for the parent, the guardian, the custodian, or the minor if:
(a) a summons is issued but cannot be served;
(b) it is made to appear to the court that the person to be served will not obey the
summons;
(c) serving the summons will be ineffectual; or
(d) the welfare of the minor requires that [he] the minor be brought immediately into the

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custody of the court.
Section 9. Section 78-3a-311 is amended to read:
78-3a-311. Dispositional hearing -- Reunification services -- Exceptions.
(1) The court may make any of the dispositions described in Section 78-3a-118 , place the
child in the custody or guardianship of any individual or public or private entity or agency, order
protective supervision, family preservation, medical or mental health treatment, or other services.
(2) (a) (i) Whenever the court orders continued removal at the dispositional hearing, and
that the minor remain in the custody of the division [of Child and Family Services], it shall first
establish a primary permanency goal for the minor and determine whether, in view of the primary
permanency goal, reunification services are appropriate for the child and the child's family,
pursuant to Subsection (3).
(ii) When the court determines that reunification services are appropriate for the child and
the child's family, the court shall provide for reasonable parent-time with the parent or parents
from whose custody the child was removed, unless parent-time is not in the best interest of the
child.
(iii) In cases where obvious sexual abuse, 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 provide reunification services, or to attempt to rehabilitate the
offending parent or parents. In all cases, the child's health, safety, and welfare shall be the court's
paramount concern in determining whether reasonable efforts to reunify should be made.
(b) (i) In addition to the primary permanency goal, the court shall establish a concurrent
permanency goal. The concurrent permanency goal shall include a representative list of the
conditions under which the primary permanency goal will be abandoned in favor of the concurrent
permanency goal and an explanation of the effect of abandoning or modifying the primary
permanency goal.
(ii) A permanency hearing shall be conducted in accordance with Subsection
78-3a-312 (1)(b) within 30 days if something other than reunification is initially established as a
child's primary permanency goal.

- 23 -

(iii) (A) The court may amend a child's primary permanency goal before the establishment
of a final permanency plan under Section 78-3a-312 . The court is not limited to the terms of the
concurrent permanency goal in the event that the primary permanency goal is abandoned.
(B) If, at anytime, the court determines that reunification is no longer a child's primary
permanency goal, the court shall conduct a permanency hearing in accordance with Section
78-3a-312 within the earlier of 30 days of the court's determination or 12 months from the
original removal of the child.
(c) (i) If the court determines that reunification services are appropriate, it shall order that
the division make reasonable efforts to provide services to the child and the child's parent for the
purpose of facilitating reunification of the family, for a specified period of time. In providing those
services, the child's health, safety, and welfare shall be the division's paramount concern, and the
court shall so order.
(ii) The court shall determine whether the services offered or provided by the division
under the treatment plan constitute "reasonable efforts" on the part of the division. The court
shall also determine and define the responsibilities of the parent under the treatment plan. Those
duties and responsibilities shall be identified on the record, for the purpose of assisting in any
future determination regarding the provision of reasonable efforts, in accordance with state and
federal law.
(iii) (A) The time period for reunification services may not exceed 12 months from the
date that the child was initially removed from the child's home.
(B) Nothing in this section may be construed to entitle any parent to an entire 12 months
of reunification services.
(iv) If reunification services have been ordered, the court may terminate those services at
any time.
(v) If, at any time, continuation of reasonable efforts to reunify a child is determined to be
inconsistent with the final permanency plan for the child established pursuant to Subsection
78-3a-312 , then measures shall be taken, in a timely manner, to place the child in accordance with
the permanency plan, and to complete whatever steps are necessary to finalize the permanent

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placement of the child.
(d) Any physical custody of the minor by the parent or a relative during the period
described in Subsection (2)(c) does not interrupt the running of the period.
(e) (i) If reunification services have been ordered, a permanency hearing shall be
conducted by the court in accordance with Section 78-3a-312 at the expiration of the time period
for reunification services. The permanency hearing shall be held no later than 12 months after the
original removal of the child.
(ii) If reunification services have not been ordered, a permanency hearing shall be
conducted within 30 days, in accordance with Section 78-3a-312 .
(f) With regard to a child who is 36 months of age or younger at the time the child is
initially removed from the home, the court shall:
(i) hold a permanency hearing eight months after the date of the initial removal, pursuant
to Section 78-3a-312 ; and
(ii) order the discontinuance of those services after eight months from the initial removal
of the child from the home if the parent or parents have not made substantial efforts to comply
with the treatment plan.
(g) With regard to a child in the custody of the division whose parent or parents have
been ordered to receive reunification services but who have abandoned that child for a period of
six months since the date that reunification services were ordered, the court shall terminate
reunification services, and the division shall petition the court for termination of parental rights.
[(3) (a) Because of the state's interest in and responsibility to protect and provide
permanency for children who are abused, neglected, or dependent, the Legislature finds that a
parent's interest in receiving reunification services is limited. The court may determine that efforts
to reunify a child with the child's family are not reasonable or appropriate, based on the individual
circumstances, and that reunification services should not be provided. In determining "reasonable
efforts" to be made with respect to a child, and in making "reasonable efforts," the child's health,
safety, and welfare shall be the paramount concern.]
[(b)] (3) (a) There is a presumption that reunification services should not be provided to a

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parent if the court finds, by clear and convincing evidence, that any of the following circumstances
exist:
(i) the whereabouts of the parents are unknown, based upon a verified affidavit indicating
that a reasonably diligent search has failed to locate the parent;
(ii) the parent is suffering from a mental illness of such magnitude that it renders [him] the
parent incapable of utilizing reunification services; [that finding shall be based on competent
evidence from mental health professionals establishing that, even with the provision of services,
the parent is unlikely to be capable of adequately caring for the child within 12 months;]
(iii) (A) the minor has been previously adjudicated as an abused child due to physical or
sexual abuse[, that];
(B) following the adjudication the child was removed from the custody of [his] the child's
parent[,] and was subsequently returned to the custody of that parent[,]; and
(C) the minor is being removed due to additional physical or sexual abuse;
(iv) the parent has caused the death of another child through abuse or neglect or has
committed, aided, abetted, attempted, conspired, or solicited to commit murder or manslaughter
of a child or child abuse homicide;
(v) the minor has suffered severe abuse by the parent or by any person known by the
parent, if the parent knew or reasonably should have known that the person was abusing the
minor;
(vi) (A) the minor has been adjudicated an abused child as a result of severe abuse by the
parent[,]; and
(B) the court finds that it would not benefit the child to pursue reunification services with
the offending parent;
(vii) the parent's rights have been terminated with regard to any other child;
(viii) (A) the child has been removed from [his] the child's home on at least two previous
occasions; and
(B) reunification services were offered or provided to the family at those times; [or]
(ix) the parent has abandoned the child for a period of six months or longer; or

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(x) any other circumstance that the court determines should preclude reunification efforts
or services.
(b) For purposes of Subsection (3)(a)(ii), the court's finding that a parent is suffering from
a mental illness of such magnitude that it renders the parent incapable of utilizing reunification
services shall be based on competent evidence from mental health professionals establishing that,
even with the provision of services, the parent is unlikely to be capable of adequately caring for
the child within 12 months.
(4) (a) The following shall be considered in determining whether reunification services are
appropriate:
[(4) (a) Failure] (i) failure of the parent to respond to previous services or comply with
any previous treatment plan[,];
(ii) the fact that the child was abused while the parent was under the influence of drugs or
alcohol[,];
(iii) a past history of violent behavior[,];
(iv) whether a parent continues to live with an individual who abused the child[,];
(v) any patterns of the parent's behavior that have exposed the child to repeated abuse[,
or]; and
(vi) testimony by a competent professional that the parent's behavior is unlikely to be
successful[, shall be considered in determining whether reunification services are appropriate].
(b) The court shall also consider whether the parent has expressed an interest in
reunification with the child, in determining whether reunification services are appropriate.
(5) If reunification services are not ordered pursuant to Subsection (3)(a), and the
whereabouts of a parent become known within six months of the out-of-home placement of the
minor, the court may order the division to provide reunification services. The time limits
described in Subsection (2), however, are not tolled by the parent's absence.
(6) (a) If a parent is incarcerated or institutionalized, the court shall order reasonable
services unless it determines that those services would be detrimental to the minor. In
determining detriment, the court shall consider the age of the child, the degree of parent-child

- 27 -

bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness,
the degree of detriment to the child if services are not offered and, for minors ten years of age or
older, the minor's attitude toward the implementation of family reunification services, and any
other appropriate factors.
(b) Reunification services for an incarcerated parent are subject to the 12-month
limitation imposed in Subsection (2).
(c) Reunification services for an institutionalized parent are subject to the 12-month
limitation imposed in Subsection (2), unless the court determines that continued reunification
services would be in the child's best interest.
(7) If, pursuant to Subsection [(3)(b)(ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), or (x)] (3)(a),
the court does not order reunification services, a permanency hearing shall be conducted within 30
days, in accordance with Section 78-3a-312 .
Section 10. Section 78-3a-912 is amended to read:
78-3a-912. Appointment of attorney guardian ad litem -- Duties and
responsibilities -- Training -- Trained staff and court-appointed special advocate volunteers
-- Costs -- Immunity.
(1) The court may appoint an attorney guardian ad litem to represent the best interest of a
minor involved in any case before the court and shall consider only the best interest of a minor in
determining whether to appoint a guardian ad litem.
(2) [An] (a) The court shall appoint an attorney guardian ad litem [shall] to represent the
best interest of each minor who [may become] is the subject of a petition alleging abuse, neglect,
or dependency, from the date the minor is removed from the minor's home by the division [of
Child and Family Services], or the date the petition is filed, whichever occurs earlier.
(b) The appointment of an attorney guardian ad litem under Subsection (2)(a) shall be
made in a hearing where the parents of the minor:
(i) have been given notice to be present; and
(ii) have the opportunity to express their preferences and any concerns they may have
relating to the appointment of an attorney guardian ad litem.

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(3) [The] If the court appoints an attorney guardian ad litem employed by or under
contract with the Office of the Guardian Ad Litem, the Office of the Guardian Ad Litem Director,
through [an] the attorney guardian ad litem, shall:
(a) represent the best interest of the minor in all proceedings;
(b) be trained in applicable statutory, regulatory, and case law, and in accordance with the
United States Department of Justice National Court Appointed Special Advocate Association
guidelines, prior to representing any minor before the court;
(c) conduct or supervise an independent investigation in order to obtain first-hand, a clear
understanding of the situation and needs of the child;
(d) personally meet with the minor, personally interview the minor if the minor is old
enough to communicate, determine the minor's goals and concerns regarding placement, and
personally assess or supervise an assessment of the appropriateness and safety of the minor's
environment in each placement;
(e) file written motions, responses, or objections at all stages of a proceeding when
necessary to protect the best interest of a minor;
(f) personally or through a trained volunteer, paralegal, or other trained staff, attend all
administrative and foster care citizen review board hearings pertaining to the minor's case;
(g) participate in all appeals unless excused by order of the court;
(h) be familiar with local experts who can provide consultation and testimony regarding
the reasonableness and appropriateness of efforts made by the division [of Child and Family
Services] to maintain a minor in the minor's home or to reunify a minor with the minor's parent;
(i) to the extent possible, and unless it would be detrimental to the minor, personally or
through a trained volunteer, paralegal, or other trained staff, keep the minor advised of the status
of the minor's case, all court and administrative proceedings, discussions, and proposals made by
other parties, court action, and psychiatric, medical, or other treatment or diagnostic services that
are to be provided to the minor;
(j) review proposed orders for, and as requested by the court, prepare proposed orders
with clear and specific directions regarding services, treatment, and evaluation, assessment, and

- 29 -

protection of the minor and the minor's family; [and]
(k) personally or through a trained volunteer, paralegal, or other trained staff, monitor
implementation of a minor's treatment plan and any dispositional orders:
(i) to determine whether services ordered by the court:
(A) are actually provided[,]; and
(B) are provided in a timely manner[,]; and
(ii) attempt to assess whether they are accomplishing their intended goal[.]; and
(l) unless otherwise directed by the court, communicate with the parents or guardian of
the minor and give consideration to their concerns and goals for the minor.
(4) If the court appoints an attorney guardian ad litem who is not employed by or under
contract with the Office of the Guardian Ad Litem, the attorney guardian ad litem shall comply
with the requirements of Subsection (3).
(5) An attorney guardian ad litem appointed under Subsection (2) may not be the attorney
responsible for presenting the evidence alleging child abuse, neglect, or dependency.
(6) Upon appointment of an attorney guardian ad litem under Subsection (2), the court
shall advise the attorney guardian ad litem of his duty:
(a) to represent the best interest of the minor in all proceedings; and
(b) to fulfill the duties set forth in Subsection (3).
[(4)] (7) (a) An attorney guardian ad litem may use trained volunteers, in accordance with
Title 67, Chapter 20, Volunteer Government Workers Act, trained paralegals, and other trained
staff to assist in investigation and preparation of information regarding the cases of individual
minors before the court. An attorney guardian ad litem may not, however, delegate the attorney's
responsibilities described in Subsection (3).
(b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained in
and follow, at a minimum, the guidelines established by the United States Department of Justice
Court Appointed Special Advocate Association.
(c) The court may use volunteers trained in accordance with the requirements of
Subsection [(4)] (7)(b) to assist in investigation and preparation of information regarding the

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cases of individual minors within the jurisdiction.
(d) When possible and appropriate, the court may use a volunteer who is a peer of the
minor appearing before the court, in order to provide assistance to that minor, under the
supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or other
trained staff.
[(5)] (8) The attorney guardian ad litem shall continue to represent the best interest of the
minor until released from duties by the court.
[(6)] (9) (a) The juvenile court is responsible for all costs resulting from the appointment
of an attorney guardian ad litem and the costs of volunteer, paralegal, and other staff appointment
and training, and shall use funds appropriated by the Legislature for the guardian ad litem
program to cover those costs.
(b) (i) When the court appoints an attorney guardian ad litem under this section, the court
may assess all or part of the attorney's fees, court costs, and paralegal, staff, and volunteer
expenses against the minor's parents, parent, or legal guardian in a proportion that the court
determines to be just and appropriate.
(ii) The court may not assess those fees or costs against a legal guardian, when that
guardian is the state, or against a parent who is found to be impecunious. If a person claims to be
impecunious, the court shall require of that person an affidavit of impecuniosity as provided in
Section 78-7-36 and the court shall follow the procedures and make the determinations as
provided in Section 78-7-36 .
[(7)] (10) An attorney guardian ad litem appointed under this section, when serving in the
scope of [his] the attorney guardian ad litem's duties as guardian ad litem is considered an
employee of the state for purposes of indemnification under Title 63, Chapter 30, Utah
Governmental Immunity Act.
[(8)] (11) (a) An attorney guardian ad litem shall represent the best interest of a minor.
(b) If the minor's wishes differ from the attorney's determination of the minor's best
interest, the attorney guardian ad litem shall communicate the minor's wishes to the court in
addition to presenting the attorney's determination of the minor's best interest. A difference

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between the minor's wishes and the attorney's determination of best interest may not be
considered a conflict of interest for the attorney.
[(b)] (c) The court may appoint one attorney guardian ad litem to represent the best
interests of more than one minor child of a marriage.
[(9)] (12) An attorney guardian ad litem shall be provided access to all division [of Child
and Family Services] records regarding the minor at issue and the minor's family.
[(10)] (13) An attorney guardian ad litem shall maintain current and accurate records
regarding the number of times the attorney has had contact with each minor and the actions the
attorney has taken in representation of the minor's best interest.
[(11)] (14) (a) Except as provided in Subsection [(11)] (14)(b), all records of an attorney
guardian ad litem are confidential and may not be released or made public upon subpoena, search
warrant, discovery proceedings, by authorization or order of a court, or otherwise. This
Subsection (14)(a) supersedes Title 63, Chapter 2, Government Records Access and Management
Act.
(b) All records of an attorney guardian ad litem are subject to legislative subpoena, under
Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the Legislature.
(c) Records released in accordance with Subsection [(11)] (14)(b) shall be maintained as
confidential by the Legislature. The Office of the Legislative Auditor General may, however,
include summary data and nonidentifying information in its audits and reports to the Legislature.
(d) Because of the unique role of an attorney guardian ad litem described in Subsection
[(8)] (11), and the state's role and responsibility to provide a guardian ad litem program and, as
parens patriae, to protect minors, Subsection [(11)] (14)(b) constitutes an exception to Rules of
Professional Conduct, Rule 1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client
privilege does not bar access to the records of an attorney guardian ad litem by the Legislature,
through legislative subpoena. This is the only exception to the Rules of Professional Conduct for
an attorney guardian ad litem.
(15) An attorney guardian ad litem may not make public statements, or grant interviews
that will be disclosed publicly outside of the juvenile court, about a child abuse, neglect, or

- 32 -

dependency case, even if the statement or interview does not involve the disclosure of a record
that is private, controlled, or protected under Title 63, Chapter 2, Government Records Access
and Management Act.
Section 11. Section 78-7-45 is amended to read:
78-7-45. Private attorney guardian ad litem -- Appointment -- Costs and fees --
Duties -- Conflicts of interest -- Pro bono obligation -- Indemnification -- Minimum
qualifications.
(1) (a) The court may appoint a private attorney as guardian ad litem to represent the best
interests of the minor in any district court action in which the custody of or visitation with a minor
is at issue. The attorney guardian ad litem shall be certified by the Director of the Office of the
Guardian Ad Litem as having met the minimum qualifications for appointment, but shall not be
employed by or under contract with the Office of the Guardian Ad Litem.
(b) If an attorney guardian ad litem has been appointed for the minor in any prior or
concurrent action and that attorney guardian ad litem is available, the court shall appoint that
attorney guardian ad litem, unless good cause is shown why another attorney guardian ad litem
should be appointed.
(c) If, after appointment of the attorney guardian ad litem, an allegation of abuse, neglect,
or dependency of the minor is made the court shall:
(i) determine whether it is in the best interests of the minor to continue the appointment;
or
(ii) order the withdrawal of the private attorney guardian ad litem and [appoint], in the
manner set forth in Subsection 78-3a-912 (2), appoint either:
(A) the Office of the Guardian Ad Litem[.]; or
(B) another private attorney guardian ad litem.
(2) (a) The court shall assess all or part of the attorney guardian ad litem fees, courts
costs, and paralegal, staff, and volunteer expenses against the parties in a proportion the court
determines to be just.
(b) If the court finds a party to be impecunious, under the provisions of Section 78-7-36 ,

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the court may direct the impecunious party's share of the assessment to be covered by the attorney
guardian ad litem pro bono obligation established in Subsection (6)(b).
(3) The attorney guardian ad litem appointed under the provisions of this section shall:
(a) represent the best interests of the minor from the date of the appointment until
released by the court;
(b) conduct or supervise an independent investigation in order to obtain a clear
understanding of the situation and needs of the minor;
(c) interview witnesses and review relevant records pertaining to the minor and the
minor's family, including medical, psychological, and school records;
(d) if the minor is old enough to communicate and unless it would be detrimental to the
minor:
(i) meet with and interview the minor;
(ii) determine the minor's goals and concerns regarding custody or visitation; and
(iii) counsel the minor regarding the nature, purpose, status, and implications of the case,
of hearings, of recommendations, and proposals by parties and of court orders;
(e) conduct discovery, file pleadings and other papers, prepare and review orders, and
otherwise comply with the Utah Rules of Civil Procedure as necessary to protect the best interest
of the minor;
(f) unless excused by the court, prepare for and attend all mediation hearings and all court
conferences and hearings, and present witnesses and exhibits as necessary to protect the best
interests of the minor;
(g) identify community resources to protect the best interests of the minor and advocate
for those resources; and
(h) participate in all appeals unless excused by the court.
(4) (a) The attorney guardian ad litem shall represent the best interests of a minor. If the
minor's wishes differ from the attorney's determination of the minor's best interests, the attorney
guardian ad litem shall communicate to the court the minor's wishes and the attorney's
determination of the minor's best interests. A difference between the minor's wishes and the

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attorney's determination of best interests is not sufficient to create a conflict of interest.
(b) The court may appoint one attorney guardian ad litem to represent the best interests
of more than one minor child of a marriage.
(5) An attorney guardian ad litem appointed under this section is immune from any civil
liability that might result by reason of acts performed within the scope of duties of the attorney
guardian ad litem.
(6) (a) Upon the advice of the Director of the Office of the Guardian Ad Litem, the
Judicial Council shall by rule establish the minimum qualifications and requirements for
appointment by the court as an attorney guardian ad litem.
(b) An attorney guardian ad litem may be required to appear pro bono in one case for
every five cases in which the attorney is appointed with compensation.
(7) This section shall be effective in the Second, Third, and Fourth Judicial Districts on
July 1, 2001, and in the remaining judicial districts of the state on July 1, 2002.
Section 12. Repealer.
This bill repeals:
Section 78-3a-305.1, Presumption of responsibility.
Section 13. Effective date.
This bill takes effect on July 1, 2004.

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