First Substitute H.B. 151

Representative Eric K. Hutchings proposes the following substitute bill:

1 PROTECTIVE CUSTODY OF ABUSED,
2 NEGLECTED, OR DEPENDENT CHILDREN
3 2004 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Eric K. Hutchings
6
7 LONG TITLE
8 General Description:
9 This bill amends the Child and Family Services and Judicial Codes.
10 Highlighted Provisions:
11 This bill:
12 . prohibits a child from being taken into protective custody for child abuse, neglect,
13 or dependency except by a peace officer;
14 . authorizes a child welfare worker from the Division of Child and Family Services to
15 accompany a peace officer taking a child into protective custody;
16 . requires a peace officer who takes a child into protective custody to immediately
17 notify the Division of Child and Family Services;
18 . prohibits a child from being taken into protective custody prior to completion of an
19 investigation by a peace officer under contract with the Division of Child and
20 Family Services, except in exigent circumstances;
21 . provides standards for investigations conducted prior to taking a child into
22 protective custody;
23 . authorizes the Division of Child and Family Services to contract with peace
24 officers;
25 . authorizes a peace officer under contract with the Division of Child and Family

26 Services to access the division's Management Information System;
27 . requires that investigations of reports that a child within the custody of the Division
28 of Child and Family Services has been abused or neglected be conducted by a peace
29 officer;
30 . references existing law regarding protective custody by a physician, hospital, or
31 similar medical facility for not to exceed 72 hours under certain conditions;
32 . makes conforming amendments; and
33 . makes technical corrections.
34 Monies Appropriated in this Bill:
35 None
36 Other Special Clauses:
37 This bill takes effect on July 1, 2004.
38 Utah Code Sections Affected:
39 AMENDS:
40 62A-4a-202.1 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah
41 2003
42 62A-4a-202.2, as last amended by Chapter 10, Laws of Utah 2001, First Special
43 Session
44 62A-4a-202.3, as last amended by Chapter 265, Laws of Utah 2002
45 62A-4a-202.8, as enacted by Chapter 326, Laws of Utah 2003
46 62A-4a-209, as last amended by Chapters 265 and 306, Laws of Utah 2002
47 62A-4a-409, as last amended by Chapter 265, Laws of Utah 2002
48 62A-4a-410, as last amended by Chapter 206, Laws of Utah 2002
49 78-3a-106, as last amended by Chapter 267, Laws of Utah 2003
50 78-3a-301 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah 2003
51 78-3a-306, as last amended by Chapters 131 and 267, Laws of Utah 2003
52
53 Be it enacted by the Legislature of the state of Utah:
54 Section 1. Section 62A-4a-202.1 (Effective 07/01/04) is amended to read:
55 62A-4a-202.1 (Effective 07/01/04). Peace officer taking a minor into protective
56 custody with or without warrant or court order -- Caseworker may accompany --

57 Consent or specified circumstances -- Shelter care or emergency kinship.
58 (1) A [state officer,] peace officer[, or child welfare worker] may not, without the
59 consent of the minor's parent or guardian, a warrant, or a court order issued under Section
60 78-3a-106 , remove a minor from the minor's home or school, or take a minor into protective
61 custody unless there exist exigent circumstances.
62 (2) A [child welfare worker within the division may take action] peace officer taking a
63 minor into protective custody under Subsection (1) may be accompanied by a [peace officer, or
64 without a peace officer when a peace officer is not reasonably available] child welfare worker
65 from the division.
66 (3) If possible, consistent with the minor's safety and welfare, and before [taking] a
67 minor is taken into protective custody by a peace officer, the [worker] division shall [also]
68 determine whether there are services reasonably available to the [worker] division which, if
69 provided to the minor's parent or to the minor, would eliminate the need to remove the minor
70 from the custody of the minor's parent or guardian. If those services are reasonably available,
71 they shall be utilized. In determining whether services are reasonably available, and in making
72 reasonable efforts to provide those services, the minor's health, safety, and welfare shall be the
73 [worker's] division's paramount concern.
74 (4) (a) A minor removed or taken into custody under this section may not be placed or
75 kept in a secure detention facility pending court proceedings unless the minor is detainable
76 based on guidelines promulgated by the Division of Juvenile Justice Services.
77 (b) A minor removed from the custody of the minor's parent or guardian but who does
78 not require physical restriction shall be given temporary care in:
79 (i) a shelter facility; or
80 (ii) an emergency kinship placement in accordance with Section 62A-4a-209 .
81 Section 2. Section 62A-4a-202.2 is amended to read:
82 62A-4a-202.2. Notice to parents upon removal of child -- Locating noncustodial
83 parent -- Written statement of procedural rights and preliminary proceedings.
84 (1) (a) Any peace officer [or caseworker] who takes a minor into protective custody
85 under exigent circumstances, pursuant to Section 62A-4a-202.1 , shall immediately notify the
86 division. The division shall immediately use reasonable efforts to locate and inform, through
87 the most efficient means available, the parents, including a noncustodial parent, the guardian,

88 or responsible relative:
89 (i) that the minor has been taken into protective custody;
90 (ii) the reasons for removal and placement in protective custody;
91 (iii) that a written statement is available that explains the parent's procedural rights and
92 the preliminary stages of the investigation and shelter hearing; and
93 (iv) of a telephone number where the parent may access further information.
94 (b) For purposes of locating and informing the noncustodial parent as required in
95 Subsection (1)(a), the division shall search for the noncustodial parent through the national
96 parent locator database if the division is unable to locate the noncustodial parent through other
97 reasonable efforts.
98 (2) The attorney general's office shall adopt, print, and distribute a form for the written
99 statement described in Subsection (1) (a)(iii). The statement shall be made available to the
100 division and for distribution in schools, health care facilities, local police and sheriff's offices,
101 the division, and any other appropriate office within the Department of Human Services. The
102 notice shall be in simple language and include at least the following information:
103 (a) the conditions under which a minor may be released, hearings that may be required,
104 and the means by which the parent may access further specific information about a minor's case
105 and conditions of protective and temporary custody; and
106 (b) the rights of a minor and of the parent or guardian to legal counsel and to appeal.
107 (3) If a good faith attempt was made by the [peace officer or caseworker] division to
108 notify the parent or guardian in accordance with the requirements of Subsection (1), failure to
109 notify shall be considered to be due to circumstances beyond the control of the [peace officer or
110 caseworker] division and may not be construed to permit a new defense to any juvenile or
111 judicial proceeding or to interfere with any rights, procedures, or investigations provided for by
112 this chapter or Title 78, Chapter 3a, Juvenile [Courts] Court Act of 1996.
113 Section 3. Section 62A-4a-202.3 is amended to read:
114 62A-4a-202.3. Investigation prior to custody -- Substantiation of reports -- Child
115 in protective custody.
116 (1) As used in this section "peace officer" means an individual with practical criminal
117 investigatory experience and training acting as an independent investigator of criminal
118 investigations.

119 [(1) When] (2) Except as provided in Subsection (6), a child [is] may not be taken into
120 protective custody in accordance with [Section] Sections 62A-4a-202.1 , 78-3a-106 , or
121 78-3a-301 , [or when the division takes any other action which would require a shelter hearing
122 under Subsection 78-3a-306 (1), the division shall immediately initiate] until a peace officer
123 under contract with the division, in accordance with this section, completes an investigation of
124 the allegations and circumstances [of the minor and the facts surrounding] that could result in
125 the minor's being taken into protective custody.
126 [(2)] (3) (a) The [division's] investigation by the peace officer shall include, among
127 other actions necessary to meet reasonable professional standards:
128 [(a)] (i) a search for and review of any records of past reports of abuse or neglect
129 involving the same child, any sibling or other child residing in that household, and the alleged
130 perpetrator;
131 [(b)] (ii) with regard to a child who is five years of age or older, a personal interview
132 with the child outside of the presence of the alleged perpetrator, conducted in accordance with
133 the requirements of Subsection [(7)] (11);
134 [(c)] (iii) an interview with the child's natural parents or other guardian, unless their
135 whereabouts are unknown;
136 [(d)] (iv) an interview with the person who reported the abuse, unless anonymous;
137 [(e)] (v) where possible and appropriate, interviews with other third parties who have
138 had direct contact with the child, including school personnel and the child's health care
139 provider;
140 [(f)] (vi) an unscheduled visit to the child's home, unless the [division] peace officer
141 has reasonable cause to believe that the reported abuse was committed by a person who does
142 not:
143 [(i)] (A) live in the child's home; or
144 [(ii)] (B) have access to the child; and
145 [(g)] (vii) if appropriate and indicated in any case alleging physical injury, sexual
146 abuse, or failure to meet the child's medical needs, a medical examination by an appropriate
147 medical practitioner. That examination shall be obtained no later than 24 hours after the child
148 was placed in protective custody.
149 (b) For purposes of Subsection (3)(a)(vii), if the child is taken into protective custody

150 prior to completion of the investigation, the examination shall be obtained no later than 24
151 hours after the child was taken into protective custody.
152 [(3)] (4) The [division] peace officer may rely on a written report of [a prior] an
153 interview required under Subsection (3) rather than conducting an additional interview, if:
154 (a) the division, a peace officer, or a law enforcement [has] agency previously
155 conducted the interview as part of a timely and thorough investigation regarding the alleged
156 abuse or neglect and [has] produced a written report; and
157 [(b) that investigation included one or more of the interviews required by Subsection
158 (2); and]
159 [(c) the division finds that an additional interview is not in the best interest of the
160 child.]
161 (b) the law enforcement officer determines that repeating the interview is not necessary
162 due to the quality of the interview and written report.
163 (5) (a) The division shall contract with, but may not otherwise employ, law
164 enforcement officers to meet the requirements of this section.
165 (b) A peace officer under contract with the division:
166 (i) may access the division's Management Information System under Section
167 62A-4a-116 ; and
168 (ii) is subject to the contract provider limited access to information in the Management
169 Information System under Subsection 62A-4a-116 (6), except that the peace officer may access
170 any information necessary to complete the investigation required by this section.
171 (6) (a) Under exigent circumstances, a child may be taken into protective custody prior
172 to completion of the investigation required in Subsection (2).
173 (b) If a child is taken into protective custody prior to the completion of the
174 investigation, the peace officer shall complete the investigation as soon thereafter as possible.
175 [(4)] (7) (a) The division's determination of whether a report of alleged abuse, neglect,
176 or dependency is substantiated or unsubstantiated may be based on the child's statements alone.
177 (b) Inability to identify or locate the perpetrator may not be used by the division as a
178 basis for determining that a report is unsubstantiated, or for closing the case.
179 (c) The division may not determine a case to be unsubstantiated or identify a case as
180 unsubstantiated solely because the perpetrator was an out-of-home perpetrator.

181 (d) Decisions regarding whether a report is substantiated, unsubstantiated, or without
182 merit shall be based on the facts of the case at the time the report was made.
183 [(5)] (8) The division should maintain protective custody of [the] a child taken into
184 protective custody in accordance with this section and Sections 62A-4a-202.1 , 78-3a-106 , or
185 78-3a-301 if it finds that one or more of the following conditions exist:
186 (a) the minor has no natural parent, guardian, or responsible relative who is able and
187 willing to provide safe and appropriate care for the minor;
188 (b) shelter of the minor is a matter of necessity for the protection of the minor and there
189 are no reasonable means by which the minor can be protected in the minor's home or the home
190 of a responsible relative;
191 (c) there is substantial evidence that the parent or guardian is likely to flee the
192 jurisdiction of the court; or
193 (d) the minor has left a previously court ordered placement.
194 [(6)] (9) (a) Within 24 hours after receipt of a child into protective custody, excluding
195 weekends and holidays, the division shall convene a child protection team to review the
196 circumstances regarding removal of the child from the child's home or school, and prepare the
197 testimony and evidence that will be required of the division at the shelter hearing, in
198 accordance with Section 78-3a-306 .
199 (b) Members of that team shall include:
200 (i) the caseworker assigned to the case and the caseworker who made the decision to
201 remove the child;
202 (ii) a representative of the school or school district in which the child attends school;
203 (iii) the peace officer who removed the child from the home;
204 (iv) a representative of the appropriate Children's Justice Center, if one is established
205 within the county where the child resides;
206 (v) if appropriate, and known to the division, a therapist or counselor who is familiar
207 with the child's circumstances; and
208 (vi) any other individuals as determined to be appropriate and necessary by the team
209 coordinator and chair.
210 (c) At that 24-hour meeting, the division shall have available for review and
211 consideration, the complete child protective services and foster care history of the child and the

212 child's parents and siblings.
213 [(7)] (10) After receipt of a child into protective custody and prior to the adjudication
214 hearing, all investigative interviews with the child that are initiated by the division shall be
215 audio or video taped, and the child shall be allowed to have a support person of the child's
216 choice present. That support person may not be an alleged perpetrator.
217 [(8)] (11) The division shall cooperate with law enforcement investigations regarding
218 the alleged perpetrator.
219 [(9)] (12) The division may not close [an investigation] a case solely on the grounds
220 that the division [investigator], or a peace officer conducting an investigation under this
221 section, is unable to locate the child, until all reasonable efforts have been made to locate the
222 child and family members[. Those efforts include], including:
223 (a) visiting the home at times other than normal work hours;
224 (b) contacting local schools;
225 (c) contacting local, county, and state law enforcement agencies; and
226 (d) checking public assistance records.
227 Section 4. Section 62A-4a-202.8 is amended to read:
228 62A-4a-202.8. Meeting within 24 hours.
229 (1) If the division files a petition under Subsection 78-3a-305 (1) or (2) but [does not
230 take] the child is not taken into protective custody, the division shall convene a child protection
231 team meeting within 24 hours of the filing, excluding weekends and holidays, to review the
232 circumstances regarding the filing of the petition and to develop a safety plan to protect the
233 child from further abuse or neglect.
234 (2) The team shall include as many persons under Subsection 62A-4a-202.3 [(6)] (9)(b)
235 as appropriate.
236 (3) At its meeting the team shall review the complete child protective services and
237 foster care history of the child and the child's parents and siblings.
238 Section 5. Section 62A-4a-209 is amended to read:
239 62A-4a-209. Emergency kinship placement.
240 (1) The division may use an emergency kinship placement under Subsection
241 62A-4a-202.1 [(6)] (5) when:
242 (a) the caseworker has made the determination that:

243 (i) the child's home is unsafe;
244 (ii) removal is necessary under the provisions of Section 62A-4a-202.1 ; and
245 (iii) the child's custodial parent or guardian will agree to not remove the child from the
246 relative's home who serves as the kinship placement and not have any contact with the child
247 until after the shelter hearing required by Section 78-3a-306 ;
248 (b) a relative, with preference being given to a noncustodial parent in accordance with
249 Section 78-3a-307 , can be identified who has the ability and is willing to provide care for the
250 child who would otherwise be placed in shelter care, including:
251 (i) taking the child to medical, mental health, dental, and educational appointments at
252 the request of the division; and
253 (ii) the relative has the ability to make the child available to division services and the
254 guardian ad litem; and
255 (c) the relative agrees to care for the child on an emergency basis under the following
256 conditions:
257 (i) the relative meets the criteria for an emergency kinship placement under Subsection
258 (2);
259 (ii) the relative agrees to not allow the custodial parent or guardian to have any contact
260 with the child until after the shelter hearing unless authorized by the division in writing;
261 (iii) the relative agrees to contact law enforcement and the division if the custodial
262 parent or guardian attempts to make unauthorized contact with the child;
263 (iv) the relative agrees to allow the division and the child's guardian ad litem to have
264 access to the child;
265 (v) the relative has been informed and understands that the division may continue to
266 search for other possible kinship placements for long-term care, if needed;
267 (vi) the relative is willing to assist the custodial parent or guardian in reunification
268 efforts at the request of the division, and to follow all court orders; and
269 (vii) the child is comfortable with the relative.
270 (2) Before the division places a child in an emergency kinship placement, the division
271 must:
272 (a) request the name of a reference and, when possible, contact the reference [and] to
273 determine [the answer to the following questions] whether:

274 (i) [would] the person identified as a reference would place a child in the home of the
275 emergency kinship placement; and
276 (ii) [are] there are any other relatives to consider as a possible emergency or long-term
277 placement for the child;
278 (b) have the custodial parent or guardian sign an emergency kinship placement
279 agreement form during the investigation;
280 (c) complete a criminal background check described in Sections 62A-4a-202.4 and
281 78-3a-307.1 on all persons living in the relative's household;
282 (d) complete a home inspection of the relative's home; and
283 (e) have the emergency kinship placement approved by a family service specialist.
284 (3) As soon as possible after the emergency placement and prior to the shelter hearing
285 required by Section 78-3a-306 , the division shall convene a family unity meeting.
286 (4) After an emergency kinship placement, the division caseworker must:
287 (a) respond to the emergency kinship placement's calls within one hour if the custodial
288 parents or guardians attempt to make unauthorized contact with the child or attempt to remove
289 the child;
290 (b) complete all removal paperwork, including the notice provided to the custodial
291 parents and guardians under Section 78-3a-306 ;
292 (c) contact the attorney general to schedule a shelter hearing;
293 (d) complete the kinship procedures required in Section 78-3a-307 , including, within
294 five days after placement, the criminal history record check described in Subsection (5); and
295 (e) continue to search for other relatives as a possible long-term placement, if needed.
296 (5) (a) In order to determine the suitability of the kinship placement and to conduct a
297 background screening and investigation of individuals living in the household in which a child
298 is placed, each individual living in the household in which the child is placed who has not lived
299 in the state substantially year round for the most recent five consecutive years ending on the
300 date the investigation is commenced shall be fingerprinted. If no disqualifying record is
301 identified at the state level, the fingerprints shall be forwarded by the division to the Federal
302 Bureau of Investigation for a national criminal history record check.
303 (b) The cost of those investigations shall be borne by whomever received placement of
304 the child, except that the division may pay all or part of the cost of those investigations if the

305 person with whom the child is placed is unable to pay.
306 Section 6. Section 62A-4a-409 is amended to read:
307 62A-4a-409. Investigation by division -- Temporary protective custody --
308 Preremoval interviews of children.
309 (1) The division shall make a thorough [pre-removal] investigation upon receiving
310 either an oral or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug
311 dependency, when there is reasonable cause to suspect a situation of abuse, neglect, fetal
312 alcohol syndrome, or fetal drug dependency. The primary purpose of [that] the investigation
313 shall be protection of the child.
314 (2) The [preremoval] investigation required under Subsection (1):
315 (a) shall [include] meet the [same investigative] investigation requirements [described
316 in Section] of Subsection 62A-4a-202.3 [.](3); and
317 (b) may be satisfied by completion of the investigation required by Section
318 62A-4a-202.3 .
319 (3) The division shall make a written report of its investigation. The written report
320 shall include a determination regarding whether the alleged abuse or neglect was substantiated,
321 unsubstantiated, or without merit.
322 (4) (a) The division shall use an interdisciplinary approach whenever possible in
323 dealing with reports made under this part.
324 (b) For this purpose, the division shall convene appropriate interdisciplinary "child
325 protection teams" to assist it in its protective, diagnostic, assessment, treatment, and
326 coordination services.
327 (c) A representative of the division shall serve as the team's coordinator and chair.
328 Members of the team shall serve at the coordinator's invitation, and whenever possible, the
329 team shall include representatives of health, mental health, education, law enforcement
330 agencies, and other appropriate agencies or individuals.
331 (5) In any case where the division supervises, governs, or directs the affairs of any
332 individual, institution, or facility that has been alleged to be involved in acts or omissions of
333 child abuse or neglect, the investigation of the reported child abuse or neglect shall be
334 conducted by an agency other than the division.
335 (6) If a report of neglect is based upon or includes an allegation of educational neglect

336 the division shall immediately consult with school authorities to verify the child's status in
337 accordance with Sections 53A-11-101 through 53A-11-103 .
338 (7) When the division has completed its initial investigation under this part, it shall
339 give notice of that completion to the person who made the initial report.
340 (8) Division workers [or], other child protection team members, and peace officers
341 have authority to enter upon public or private premises, using appropriate legal processes, to
342 investigate reports of alleged child abuse or neglect; however, except as provided in Section
343 62A-4a-407 , a child may be taken into protective custody only by a peace officer, in
344 accordance with this chapter and Title 78, Chapter 3a, Juvenile Court Act of 1996.
345 (9) With regard to any interview of a child prior to removal of that child from the
346 child's home:
347 (a) except as provided in Subsection (9)(b) or (c), the division shall notify a parent of
348 the child prior to the interview;
349 (b) if a child's parent or stepparent, or a parent's paramour has been identified as the
350 alleged perpetrator, the division need not notify a parent of the child prior to an initial interview
351 with the child;
352 (c) if the perpetrator is unknown, or if the perpetrator's relationship to the child's family
353 is unknown, the division may conduct a minimal interview, not to exceed 15 minutes, with the
354 child prior to notification of the child's parent;
355 (d) in all cases described in Subsection (9)(b) or (c), a parent of the child shall be
356 notified as soon as practicable after the child has been interviewed, but in no case later than 24
357 hours after the interview has taken place;
358 (e) a child's parents shall be notified of the time and place of all subsequent interviews
359 with the child; and
360 (f) the child shall be allowed to have a support person of the child's choice present.
361 That support person:
362 (i) may include[, but is not limited to,] a school teacher or administrator, guidance
363 counselor, or child care provider; and
364 (ii) may not be a person who is alleged to be, or potentially may be, the perpetrator.
365 (10) In accordance with the procedures and requirements of Sections 62A-4a-202.1
366 through 62A-4a-202.3 , a [division worker or child protection team member] peace officer may

367 take a child into protective custody and [deliver the child to a law enforcement officer, or]
368 place the child in an emergency shelter facility approved by the juvenile court, at the earliest
369 opportunity subsequent to the child's removal from the child's original environment. Control
370 and jurisdiction over the child is determined by the provisions of Title 78, Chapter 3a, Juvenile
371 Court Act of 1996, and as otherwise provided by law.
372 (11) With regard to cases in which a law enforcement agency has or is conducting an
373 investigation of alleged abuse or neglect of a child:
374 (a) the division shall coordinate with the law enforcement agency to ensure that there is
375 an adequate safety plan to protect the child from further abuse or neglect; and
376 (b) the division is not required to duplicate an aspect of the investigation that, in the
377 division's determination, has been satisfactorily completed by the law enforcement agency.
378 Section 7. Section 62A-4a-410 is amended to read:
379 62A-4a-410. Immunity from liability.
380 (1) Any person, official, or institution participating in good faith in making a report,
381 taking photographs or X-rays, assisting an [investigator from the division] investigation by a
382 peace officer or the division of possible child abuse, neglect, or dependency, serving as a
383 member of a child protection team, or taking a child into protective custody pursuant to this
384 part, is immune from any liability, civil or criminal, that otherwise might result by reason of
385 those actions.
386 (2) This section does not provide immunity with respect to acts or omissions of a
387 governmental employee except as provided in Title 63, Chapter 30, Utah Governmental
388 Immunity Act.
389 Section 8. Section 78-3a-106 is amended to read:
390 78-3a-106. Search warrants and subpoenas -- Authority to issue.
391 (1) The court has authority to issue search warrants, subpoenas, or investigative
392 subpoenas in criminal cases, delinquency, and abuse, neglect, and dependency proceedings for
393 the same purposes, in the same manner and pursuant to the same procedures set forth in the
394 code of criminal procedure for the issuance of search warrants, subpoenas, or investigative
395 subpoenas in other trial courts in the state.
396 (2) (a) The court may issue a warrant authorizing a [child protective services worker
397 or] peace officer to search for a child and take the child into protective custody if it appears to

398 the court upon a verified petition, recorded sworn testimony or an affidavit sworn to by a peace
399 officer or any other person, and upon the examination of other witnesses, if required by the
400 judge, that there is probable cause to believe that:
401 (i) there is an immediate threat to the safety of a child; and
402 (ii) the applicant certifies to the court in writing or by recorded sworn testimony as to
403 the efforts, if any, that have been made to give notice to the minor's parent or guardian and the
404 reasons supporting the claim that notice and an opportunity to be heard should not be required.
405 (b) A warrant removing a child from [his] the child's home or school, or having the
406 effect of depriving a parent or guardian of the care, custody, and control of [their] the parent's
407 or guardian's minor child, may not be issued without notice to the minor's parents or guardian
408 and opportunity to be heard unless the requirements of Subsections (2)(a)(i) and (ii) have been
409 satisfied.
410 (c) Pursuant to Section 77-23-210 , a peace officer making the search may enter a house
411 or premises by force, if necessary, in order to remove the child.
412 (d) The person executing the warrant shall then take the child to the place of shelter
413 designated by the court.
414 (3) The parent or guardian to be notified must be the minor's primary caregiver, or the
415 person who has custody of the minor, when the order is sought.
416 Section 9. Section 78-3a-301 (Effective 07/01/04) is amended to read:
417 78-3a-301 (Effective 07/01/04). Court-ordered protective custody of a minor
418 following petition filing -- Grounds.
419 (1) (a) After a petition has been filed under Subsection 78-3a-305 (1), if the minor who
420 is the subject of the petition is not in the protective custody of the division, a court may order
421 that the minor be removed from the minor's home by a peace officer, or otherwise taken into
422 protective custody by a peace officer, if the court finds, by a preponderance of the evidence,
423 that any one or more of the following circumstances exist:
424 [(a)] (i) there is an imminent danger to the physical health or safety of the minor and
425 the minor's physical health or safety may not be protected without removing the minor from the
426 custody of the minor's parent or guardian[. If a minor has previously been adjudicated as
427 abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
428 has occurred involving the same alleged abuser or under similar circumstance as the previous

429 abuse, that fact constitutes prima facie evidence that the minor cannot safely remain in the
430 custody of the minor's parent];
431 [(b)] (ii) a parent or guardian engages in or threatens the minor with unreasonable
432 conduct that causes the minor to suffer emotional damage and there are no reasonable means
433 available by which the minor's emotional health may be protected without removing the minor
434 from the custody of the minor's parent or guardian;
435 [(c) (i)] (iii) the minor or another minor residing in the same household has been
436 physically or sexually abused, or is considered to be at substantial risk of being physically or
437 sexually abused, by a parent or guardian, a member of the parent's or guardian's household, or
438 other person known to the parent or guardian[.];
439 [(ii) For purposes of this Subsection (1)(c), another minor residing in the same
440 household may not be removed from the home unless that minor is considered to be at
441 substantial risk of being physically or sexually abused as described in Subsection (1)(c)(i) or
442 (iii).]
443 [(iii) If a parent or guardian has received actual notice that physical or sexual abuse by
444 a person known to the parent has occurred, and there is evidence that the parent or guardian
445 failed to protect the minor by allowing the minor to be in the physical presence of the alleged
446 abuser, that fact constitutes prima facie evidence that the minor is at substantial risk of being
447 physically or sexually abused;]
448 [(d)] (iv) the parent or guardian is unwilling to have physical custody of the minor;
449 [(e)] (v) the minor has been abandoned or left without any provision for the minor's
450 support;
451 [(f)] (vi) a parent or guardian who has been incarcerated or institutionalized has not
452 arranged or cannot arrange for safe and appropriate care for the minor;
453 [(g)] (vii) a relative or other adult custodian with whom the minor has been left by the
454 parent or guardian is unwilling or unable to provide care or support for the minor, the
455 whereabouts of the parent or guardian are unknown, and reasonable efforts to locate the parent
456 or guardian have been unsuccessful;
457 [(h)] (viii) the minor is in immediate need of medical care;
458 [(i) (i)] (ix) (A) a parent's or guardian's actions, omissions, or habitual action create an
459 environment that poses a threat to the minor's health or safety; or

460 [(ii)] (B) a parent's or guardian's action in leaving a minor unattended would
461 reasonably pose a threat to the minor's health or safety;
462 [(j) (i)] (x) (A) the minor or another minor residing in the same household has been
463 neglected; and
464 [(ii)] (B) for purposes of Subsection (1)[(j)(i)](a)(x)(A), another minor residing in the
465 same household may not be removed unless that minor is considered to be at substantial risk of
466 being neglected;
467 [(k)] (xi) an infant has been abandoned, as defined in Section 78-3a-313.5 ;
468 [(l)] (xii) the parent or guardian, or an adult residing in the same household as the
469 parent or guardian, has been charged or arrested pursuant to Title 58, Chapter 37d, Clandestine
470 Drug Lab Act, and any clandestine laboratory operation, as defined in Section 58-37d-3 , was
471 located in the residence or on the property where the minor resided; or
472 [(m)] (xiii) the minor's welfare is otherwise endangered.
473 (b) (i) For purposes of Subsection (1)(a)(i), if a minor has previously been adjudicated
474 as abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
475 has occurred involving the same alleged abuser or under similar circumstance as the previous
476 abuse, that fact constitutes prima facie evidence that the minor cannot safely remain in the
477 custody of the minor's parent.
478 (ii) For purposes of Subsection (1)(a)(iii):
479 (A) another minor residing in the same household may not be removed from the home
480 unless that minor is considered to be at substantial risk of being physically or sexually abused
481 as described in Subsection (1)(a)(iii) or Subsection (1)(b)(ii)(B); and
482 (B) if a parent or guardian has received actual notice that physical or sexual abuse by a
483 person known to the parent has occurred, and there is evidence that the parent or guardian
484 failed to protect the minor by allowing the minor to be in the physical presence of the alleged
485 abuser, that fact constitutes prima facie evidence that the minor is at substantial risk of being
486 physically or sexually abused.
487 (2) A court may not remove a minor from the parent's or guardian's custody on the
488 basis of educational neglect, in the absence of one of the factors described in Subsection (1).
489 (3) A court may not remove a minor from the parent's or guardian's custody on the
490 basis of mental illness or poverty of the parent or guardian, in the absence of one of the factors

491 described in Subsection (1).
492 (4) A minor removed from the custody of the minor's parent or guardian under this
493 section may not be placed or kept in a secure detention facility pending further court
494 proceedings unless the minor is detainable based on guidelines promulgated by the Division of
495 Juvenile Justice Services.
496 (5) This section does not preclude removal of a minor from the minor's home without a
497 warrant or court order under Section 62A-4a-202.1 .
498 Section 10. Section 78-3a-306 is amended to read:
499 78-3a-306. Shelter hearing.
500 (1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
501 after any one or all of the following occur:
502 (a) removal of [the] a child from [his] the child's home by [the Division of Child and
503 Family Services] a peace officer;
504 (b) placement of the child in the protective custody of the division [of Child and
505 Family Services];
506 (c) emergency kinship placement under Subsection 62A-4a-202.1 (4); or
507 (d) as an alternative to removal of the child, a parent has entered a domestic violence
508 shelter at the request of the division [of Child and Family Services].
509 (2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
510 through (1)(d), the division shall issue a notice that contains all of the following:
511 (a) the name and address of the person to whom the notice is directed;
512 (b) the date, time, and place of the shelter hearing;
513 (c) the name of the minor on whose behalf a petition is being brought;
514 (d) a concise statement regarding:
515 (i) the reasons for removal or [other] action of the division under Subsection (1); and
516 (ii) the allegations and code sections under which the proceeding has been instituted;
517 (e) a statement that the parent or guardian to whom notice is given, and the minor, are
518 entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
519 indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
520 provided; and
521 (f) a statement that the parent or guardian is liable for the cost of support of the minor

522 in the protective custody, temporary custody, and custody of the division, and the cost for legal
523 counsel appointed for the parent or guardian under Subsection (2)(e), according to [his] the
524 parent's or guardian's financial ability.
525 (3) That notice shall be personally served as soon as possible, but no later than one
526 business day after removal of a child from [his] the child's home, on:
527 (a) the appropriate guardian ad litem; and
528 (b) both parents and any guardian of the minor, unless they cannot be located.
529 (4) The following persons shall be present at the shelter hearing:
530 (a) the child, unless it would be detrimental for the child;
531 (b) the child's parents or guardian, unless they cannot be located, or fail to appear in
532 response to the notice;
533 (c) counsel for the parents, if one has been requested;
534 (d) the child's guardian ad litem;
535 (e) the caseworker from the division [of Child and Family Services] who has been
536 assigned to the case; and
537 (f) the attorney from the attorney general's office who is representing the division.
538 (5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's
539 parent or guardian, if present, and any other person having relevant knowledge, to provide
540 relevant testimony. The court may also provide an opportunity for the minor to testify.
541 (b) (i) The court may consider all relevant evidence, in accordance with the Utah Rules
542 of Juvenile Procedure.
543 (ii) The court shall hear relevant evidence presented by the minor, [his] the parent or
544 guardian of the minor, the requesting party, or their counsel, but may in its discretion limit
545 testimony and evidence to only that which goes to the issues of removal and the child's need for
546 continued protection.
547 (6) If the child is in the protective custody of the division, the division shall report to
548 the court:
549 (a) the reasons why the minor was removed from the parent's or guardian's custody;
550 (b) any services provided to the child and [his] the child's family in an effort to prevent
551 removal;
552 (c) the need, if any, for continued shelter;

553 (d) the available services that could facilitate the return of the minor to the custody of
554 [his] the minor's parent or guardian; and
555 (e) whether the child has any relatives who may be able and willing to take temporary
556 custody.
557 (7) The court shall consider all relevant evidence provided by persons or entities
558 authorized to present relevant evidence pursuant to this section.
559 (8) If necessary to protect the child, preserve the rights of a party, or for other good
560 cause shown, the court may grant no more than one time-limited continuance, not to exceed
561 five judicial days.
562 (9) (a) If the child is in the protective custody of the division, the court shall order that
563 the minor be released from the protective custody of the division unless it finds, by a
564 preponderance of the evidence, that any one of the following exist:
565 [(a)] (i) there is a substantial danger to the physical health or safety of the minor and
566 the minor's physical health or safety may not be protected without removing [him] the minor
567 from [his parent's] the custody of the minor's parent or guardian. If a minor has previously
568 been adjudicated as abused, neglected, or dependent and a subsequent incident of abuse,
569 neglect, or dependency occurs, that fact constitutes prima facie evidence that the child cannot
570 safely remain in the custody of [his] the minor's parent or guardian;
571 [(b)] (ii) the minor is suffering emotional damage, as may be indicated by, but is not
572 limited to, extreme anxiety, depression, withdrawal, or negative aggressive behavior toward
573 self or others, and there are no reasonable means available by which the minor's emotional
574 health may be protected without removing the minor from the custody of [his] the minor's
575 parent or guardian;
576 [(c)] (iii) the minor or another minor residing in the same household has been
577 physically or sexually abused, or is considered to be at substantial risk of being physically or
578 sexually abused, by a parent, a member of the parent's household, or other person known to the
579 parent[. If a parent has received actual notice that physical or sexual abuse by a person known
580 to the parent has occurred, and there is evidence that the parent has allowed the child to be in
581 the physical presence of the alleged abuser, that fact constitutes prima facie evidence that the
582 child is at substantial risk of being physically or sexually abused];
583 [(d)] (iv) the parent is unwilling to have physical custody of the child;

584 [(e)] (v) the minor has been left without any provision for [his] the minor's support;
585 [(f)] (vi) a parent who has been incarcerated or institutionalized has not or cannot
586 arrange for safe and appropriate care for the minor;
587 [(g)] (vii) a relative or other adult custodian with whom the minor has been left by the
588 parent is unwilling or unable to provide care or support for the minor, the whereabouts of the
589 parent are unknown, and reasonable efforts to locate him have been unsuccessful;
590 [(h)] (viii) the minor is in immediate need of medical care;
591 [(i)] (ix) the physical environment or the fact that the child is left unattended poses a
592 threat to the child's health or safety;
593 [(j)] (x) the minor or another minor residing in the same household has been neglected;
594 [(k)] (xi) the parent, or an adult residing in the same household as the parent, has been
595 charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any
596 clandestine laboratory operation, as defined in Section 58-37d-3 , was located in the residence
597 or on the property where the child resided; or
598 [(l)] (xii) the child's welfare is otherwise endangered.
599 (b) For purposes of Subsection (9)(a)(iii), if a parent has received actual notice that
600 physical or sexual abuse by a person known to the parent has occurred, and there is evidence
601 that the parent has allowed the child to be in the physical presence of the alleged abuser, that
602 fact constitutes prima facie evidence that the child is at substantial risk of being physically or
603 sexually abused.
604 (10) (a) The court shall also make a determination on the record as to whether
605 reasonable efforts were made to prevent or eliminate the need for removal of the minor from
606 [his] the minor's home and whether there are available services that would prevent the need for
607 continued removal. If the court finds that the minor can be safely returned to the custody of
608 [his] the minor's parent or guardian through the provision of those services, it shall place the
609 minor with [his] the minor's parent or guardian and order that those services be provided by the
610 division.
611 (b) In making that determination, and in ordering and providing services, the child's
612 health, safety, and welfare shall be the paramount concern, in accordance with federal law.
613 (11) Where the division's first contact with the family occurred during an emergency
614 situation in which the child could not safely remain at home, the court shall make a finding that

615 any lack of preplacement preventive efforts was appropriate.
616 (12) In cases where actual sexual abuse or abandonment, or serious physical abuse or
617 neglect are involved, neither the division nor the court has any duty to make "reasonable
618 efforts" or to, in any other way, attempt to maintain a child in [his] the child's home, return a
619 child to [his] the child's home, provide reunification services, or attempt to rehabilitate the
620 offending parent or parents.
621 (13) The court may not order continued removal of a minor solely on the basis of
622 educational neglect as described in Subsection 78-3a-103 (1)(s)(ii).
623 (14) (a) Whenever a court orders continued removal of a minor under this section, it
624 shall state the facts on which that decision is based.
625 (b) If no continued removal is ordered and the minor is returned home, the court shall
626 state the facts on which that decision is based.
627 (15) If the court finds that continued removal and temporary custody are necessary for
628 the protection of a child because harm may result to the child if [he] the child were returned
629 home, [it] the court shall order continued removal regardless of any error in the initial removal
630 of the child, or the failure of a party to comply with notice provisions, or any other procedural
631 requirement of this chapter or Title 62A, Chapter 4a, Child and Family Services.
632 Section 11. Effective date.
633 This bill takes effect on July 1, 2004.