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First Substitute H.B. 275

Representative Ann W. Hardy proposes the following substitute bill:


             1     
ADOPTION AMENDMENTS

             2     
2004 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Ann W. Hardy

             5     
             6      LONG TITLE
             7      General Description:
             8          This bill amends provisions relating to adoption procedures and adoptive evaluations.
             9      Highlighted Provisions:
             10          This bill:
             11          .    amends who may receive a criminal history report;
             12          .    expands which reports and information are confidential;
             13          .    authorizes an agency to provide an adoption report to certain other persons in
             14      connection with an adoption;
             15          .    changes the timeliness on conducting a preplacement adoptive evaluation;
             16          .    requires a person or agency conducting an adoption evaluation to provide the
             17      prospective adoptive parent with literature to assist them in connection with the
             18      adoption;
             19          .    amends the notice of adoption proceedings;
             20          .    requires a putative father's name to appear on a birth certificate before the
             21      relinquishment or consent for adoption;
             22          .    revises provisions for an unmarried, biological father to declare an interest in the
             23      child;
             24          .    makes explicit the biological father's rights when the child is conceived by conduct
             25      that would constitute a sexual offense;



             26          .    changes provisions regarding contested adoptions;
             27          .    changes time frames for consent or relinquishment in connection with a child placed
             28      for adoption;
             29          .    clarifies venue for adoption proceedings; and
             30          .    provides for allowance of interested persons to petition the court to determine the
             31      rights of other persons in connection with a child.
             32      Monies Appropriated in this Bill:
             33          None
             34      Other Special Clauses:
             35          None
             36      Utah Code Sections Affected:
             37      AMENDS:
             38          53-10-108, as last amended by Chapter 13, Laws of Utah 2002
             39          62A-4a-412, as last amended by Chapter 68, Laws of Utah 2003
             40          78-30-3.5, as last amended by Chapter 101, Laws of Utah 2001
             41          78-30-4.13, as last amended by Chapter 171, Laws of Utah 2000
             42          78-30-4.14, as last amended by Chapter 101, Laws of Utah 2001
             43          78-30-4.15, as last amended by Chapter 129, Laws of Utah 1998
             44          78-30-4.16, as last amended by Chapter 255, Laws of Utah 2001
             45          78-30-4.18, as last amended by Chapter 171, Laws of Utah 2000
             46          78-30-4.19, as renumbered and amended by Chapter 168, Laws of Utah 1995
             47          78-30-4.23, as enacted by Chapter 168, Laws of Utah 1995
             48          78-30-4.24, as enacted by Chapter 168, Laws of Utah 1995
             49          78-30-7, as last amended by Chapter 185, Laws of Utah 2002
             50     
             51      Be it enacted by the Legislature of the state of Utah:
             52          Section 1. Section 53-10-108 is amended to read:
             53           53-10-108. Restrictions on access, use, and contents of division records -- Limited
             54      use of records for employment purposes -- Challenging accuracy of records -- Usage fees
             55      -- Missing children records.
             56          (1) Dissemination of information from a criminal history record or warrant of arrest



             57      information from division files is limited to:
             58          (a) criminal justice agencies for purposes of administration of criminal justice and for
             59      employment screening by criminal justice agencies;
             60          (b) noncriminal justice agencies or individuals for any purpose authorized by statute,
             61      executive order, court rule, court order, or local ordinance;
             62          (c) agencies or individuals for the purpose of obtaining required clearances connected
             63      with foreign travel or obtaining citizenship;
             64          (d) (i) agencies or individuals pursuant to a specific agreement with a criminal justice
             65      agency to provide services required for the administration of criminal justice; and
             66          (ii) the agreement shall specifically authorize access to data, limit the use of the data to
             67      purposes for which given, and ensure the security and confidentiality of the data;
             68          (e) agencies or individuals for the purpose of a preplacement adoptive study, in
             69      accordance with the requirements of Section 78-30-3.5 ;
             70          (f) (i) agencies and individuals as the commissioner authorizes for the express purpose
             71      of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice
             72      agency; and
             73          (ii) private security agencies through guidelines established by the commissioner for
             74      employment background checks for their own employees and prospective employees;
             75          (g) a qualifying entity for employment background checks for their own employees and
             76      persons who have applied for employment with the qualifying entity; and
             77          (h) other agencies and individuals as the commissioner authorizes and finds necessary
             78      for protection of life and property and for offender identification, apprehension, and
             79      prosecution pursuant to an agreement.
             80          (2) An agreement under Subsection (1)(f) or (1)(h) shall specifically authorize access
             81      to data, limit the use of data to research, evaluative, or statistical purposes, preserve the
             82      anonymity of individuals to whom the information relates, and ensure the confidentiality and
             83      security of the data.
             84          (3) (a) Before requesting information under Subsection (1)(g), a qualifying entity must
             85      obtain a signed waiver from the person whose information is requested.
             86          (b) The waiver must notify the signee:
             87          (i) that a criminal history background check will be conducted;


             88          (ii) who will see the information; and
             89          (iii) how the information will be used.
             90          (c) Information received by a qualifying entity under Subsection (1)(g) may only be:
             91          (i) available to persons involved in the hiring or background investigation of the
             92      employee; and
             93          (ii) used for the purpose of assisting in making an employment or promotion decision.
             94          (d) A person who disseminates or uses information obtained from the division under
             95      Subsection (1)(g) for purposes other than those specified under Subsection (3)(c), in addition to
             96      any penalties provided under this section, is subject to civil liability.
             97          (e) A qualifying entity that obtains information under Subsection (1)(g) shall provide
             98      the employee or employment applicant an opportunity to:
             99          (i) review the information received as provided under Subsection (8); and
             100          (ii) respond to any information received.
             101          (f) In accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the
             102      division may make rules to implement this Subsection (3).
             103          (g) (i) The applicant fingerprint card fee under Subsection (1)(g) is $15.
             104          (ii) The name check fee under Subsection (1)(g) is $10.
             105          (iii) These fees remain in effect until changed by the division through the process under
             106      Section 63-38-3.2 .
             107          (iv) Funds generated under Subsections (3)(g)(i), (3)(g)(ii), and (8)(b) shall be
             108      deposited in the General Fund as a dedicated credit by the department to cover the costs
             109      incurred in providing the information.
             110          (h) The division or its employees are not liable for defamation, invasion of privacy,
             111      negligence, or any other claim in connection with the contents of information disseminated
             112      under Subsection (1)(g).
             113          (4) Any criminal history record information obtained from division files may be used
             114      only for the purposes for which it was provided and may not be further disseminated, except
             115      that a criminal history provided to an agency pursuant to Subsection (1)(e) may be provided by
             116      the agency to the person who is the subject of the history, another licensed child-placing
             117      agency, or the attorney for the adoptive parents for the purpose of facilitating an adoption.
             118          (5) If an individual has no prior criminal convictions, criminal history record


             119      information contained in the division's computerized criminal history files may not include
             120      arrest or disposition data concerning an individual who has been acquitted, his charges
             121      dismissed, or when no complaint against him has been filed.
             122          (6) (a) This section does not preclude the use of the division's central computing
             123      facilities for the storage and retrieval of criminal history record information.
             124          (b) This information shall be stored so it cannot be modified, destroyed, or accessed by
             125      unauthorized agencies or individuals.
             126          (7) Direct access through remote computer terminals to criminal history record
             127      information in the division's files is limited to those agencies authorized by the commissioner
             128      under procedures designed to prevent unauthorized access to this information.
             129          (8) (a) The commissioner shall establish procedures to allow an individual right of
             130      access to review and receive a copy of his criminal history report.
             131          (b) A processing fee for the right of access service, including obtaining a copy of the
             132      individual's criminal history report under Subsection (8)(a) is $10. This fee remains in effect
             133      until changed by the commissioner through the process under Section 63-38-3.2 .
             134          (c) (i) The commissioner shall establish procedures for an individual to challenge the
             135      completeness and accuracy of criminal history record information contained in the division's
             136      computerized criminal history files regarding that individual.
             137          (ii) These procedures shall include provisions for amending any information found to
             138      be inaccurate or incomplete.
             139          (9) The private security agencies as provided in Subsection (1)(f)(ii):
             140          (a) shall be charged for access; and
             141          (b) shall be registered with the division according to rules made by the division under
             142      Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
             143          (10) Before providing information requested under this section, the division shall give
             144      priority to criminal justice agencies needs.
             145          (11) (a) Misuse of access to criminal history record information is a class B
             146      misdemeanor.
             147          (b) The commissioner shall be informed of the misuse.
             148          Section 2. Section 62A-4a-412 is amended to read:
             149           62A-4a-412. Reports and information confidential.


             150          (1) Except as otherwise provided in this chapter, reports made pursuant to this part, as
             151      well as any other information in the possession of the division obtained as the result of a report
             152      are private, protected, or controlled records under Title 63, Chapter 2, Government Records
             153      Access and Management Act, and may only be made available to:
             154          (a) a police or law enforcement agency investigating a report of known or suspected
             155      child abuse or neglect;
             156          (b) a physician who reasonably believes that a child may be the subject of abuse or
             157      neglect;
             158          (c) an agency that has responsibility or authority to care for, treat, or supervise a child
             159      who is the subject of a report;
             160          (d) a contract provider that has a written contract with the division to render services to
             161      a child who is the subject of a report;
             162          (e) any subject of the report, the natural parents of the minor, and the guardian ad
             163      litem;
             164          (f) a court, upon a finding that access to the records may be necessary for the
             165      determination of an issue before it, provided that in a divorce, custody, or related proceeding
             166      between private parties, the record alone is:
             167          (i) limited to objective or undisputed facts that were verified at the time of the
             168      investigation; and
             169          (ii) devoid of conclusions drawn by the division or any of its workers on the ultimate
             170      issue of whether or not a person's acts or omissions constituted any level of abuse or neglect of
             171      another person;
             172          (g) an office of the public prosecutor or its deputies in performing an official duty;
             173          (h) a person authorized by a Children's Justice Center, for the purposes described in
             174      Section 67-5b-102 ;
             175          (i) a person engaged in bona fide research, when approved by the director of the
             176      division, if the information does not include names and addresses;
             177          (j) the State Office of Education, acting on behalf of itself or on behalf of a school
             178      district, for the purpose of evaluating whether an individual should be permitted to obtain or
             179      retain a license as an educator or serve as an employee or volunteer in a school, limited to
             180      information with substantiated findings involving an alleged sexual offense, an alleged felony


             181      or class A misdemeanor drug offense, or any alleged offense against the person under Title 76,
             182      Chapter 5, Offenses Against the Person, and with the understanding that the office must
             183      provide the subject of a report received under Subsection (1)(k) with an opportunity to respond
             184      to the report before making a decision concerning licensure or employment;
             185          (k) any person identified in the report as a perpetrator or possible perpetrator of child
             186      abuse or neglect, after being advised of the screening prohibition in Subsection (2); [and]
             187          (l) a person filing a petition for a child protective order on behalf of a minor who is the
             188      subject of the report[.]; and
             189          (m) a licensed child-placing agency or person who is performing a preplacement
             190      adoptive evaluation in accordance with the requirements of Section 78-30-3.5 .
             191          (2) (a) No person, unless listed in Subsection (1), may request another person to obtain
             192      or release a report or any other information in the possession of the division obtained as a result
             193      of the report that is available under Subsection (1)(k) to screen for potential perpetrators of
             194      child abuse or neglect.
             195          (b) A person who requests information knowing that it is a violation of Subsection
             196      (2)(a) to do so is subject to the criminal penalty in Subsection (4).
             197          (3) Except as provided in Section 62A-4a-116.3 , the division and law enforcement
             198      officials shall ensure the anonymity of the person or persons making the initial report and any
             199      others involved in its subsequent investigation.
             200          (4) Any person who wilfully permits, or aides and abets the release of data or
             201      information obtained as a result of this part, in the possession of the division or contained on
             202      any part of the Management Information System, in violation of this part or Sections
             203      62A-4a-116 through 62A-4a-116.3 , is guilty of a class C misdemeanor.
             204          (5) The physician-patient privilege is not a ground for excluding evidence regarding a
             205      child's injuries or the cause of those injuries, in any proceeding resulting from a report made in
             206      good faith pursuant to this part.
             207          (6) A child-placing agency or person who receives a report in connection with a
             208      preplacement adoptive evaluation pursuant to Section 78-30-3.5 :
             209          (a) may provide this report to the person who is the subject of the report; and
             210          (b) may provide this report to a person who is performing a preplacement adoptive
             211      evaluation in accordance with the requirement of Section 78-30-3.5 , or to a licensed


             212      child-placing agency or to an attorney seeking to facilitate an adoption.
             213          Section 3. Section 78-30-3.5 is amended to read:
             214           78-30-3.5. Preplacement and postplacement adoptive evaluations -- Exceptions.
             215          (1) (a) Except as otherwise provided in this section, a child may not be placed in an
             216      adoptive home until a preplacement adoptive evaluation, assessing the prospective adoptive
             217      parent and the prospective adoptive home, has been conducted in accordance with the
             218      requirements of this section.
             219          (b) The court may, at any time, authorize temporary placement of a child in a potential
             220      adoptive home pending completion of a preplacement adoptive evaluation described in this
             221      section.
             222          (c) Subsection (1)(a) does not apply if a birth parent has legal custody of the child to be
             223      adopted and the prospective adoptive parent is related to that child as a step-parent, sibling by
             224      half or whole blood or by adoption, grandparent, aunt, uncle, or first cousin, unless the
             225      evaluation is otherwise requested by the court. The prospective adoptive parent described in
             226      this Subsection (1)(c) shall, however, obtain the information described in Subsections (2)(a)
             227      and (b), and file that documentation with the court prior to finalization of the adoption.
             228          [(d) The requirements of Subsection (1)(a) are satisfied by a previous preplacement
             229      adoptive evaluation conducted within three years prior to placement of the child, or an annual
             230      updated adoptive evaluation conducted after that three-year period or within one year after
             231      finalization of a previous adoption.]
             232          (d) The required preplacement adoptive evaluation must be completed or updated
             233      within the 12-month period immediately preceding the placement of a child with the
             234      prospective adoptive parent. If the prospective adoptive parent has previously received custody
             235      of a child for the purpose of adoption, the preplacement adoptive evaluation must be completed
             236      or updated within the 12-month period immediately preceding the placement of a child with the
             237      prospective adoptive parent and after the placement of the previous child with the prospective
             238      adoptive parent.
             239          (2) The preplacement adoptive evaluation shall include:
             240          (a) criminal history record information regarding each prospective adoptive parent and
             241      any other adult living in the prospective home, [received from] prepared by the Criminal
             242      Investigations and Technical Services Division of the Department of Public Safety, in


             243      accordance with Section 53-10-108 , no earlier than 18 months immediately preceding
             244      placement of the child;
             245          (b) a report [from] prepared by the Department of Human Services containing all
             246      information regarding reports and investigation of child abuse, neglect, and dependency, with
             247      respect to each prospective adoptive parent and any other adult living in the prospective home,
             248      obtained no earlier than 18 months immediately preceding placement of the child, pursuant to
             249      waivers executed by those parties; and
             250          (c) an evaluation conducted by an expert in family relations approved by the court or a
             251      certified social worker, clinical social worker, marriage and family therapist, psychologist,
             252      professional counselor, or other court-determined expert in family relations, who is licensed to
             253      practice under the laws of this state or under the laws of the state where the prospective
             254      adoptive parent or other person living in the prospective adoptive home resides. The
             255      evaluation shall be in a form approved by the Department of Human Services. Neither the
             256      Department of Human Services nor any of its divisions may proscribe who qualifies as an
             257      expert in family relations or who may conduct evaluations pursuant to this Subsection (2).
             258          (3) The person or agency conducting the preplacement adoptive evaluation shall, in
             259      connection with the evaluation, provide the prospective adoptive parent or parents with
             260      literature approved by the Division of Child and Family Services relating to adoption, and
             261      including information relating to the adoption process, developmental issues that may require
             262      early intervention, and community resources that are available to the adoptive parent or parents.
             263          [(3)] (4) A copy of the preplacement adoptive evaluation shall be filed with the court.
             264          [(4)] (5) (a) Except as provided in Subsections [(4)] (5)(b) and (c), a postplacement
             265      evaluation shall be conducted and submitted to the court prior to the final hearing in an
             266      adoption proceeding. The postplacement evaluation shall include:
             267          (i) verification of the allegations of fact contained in the petition for adoption;
             268          (ii) an evaluation of the progress of the child's placement in the adoptive home; and
             269          (iii) a recommendation regarding whether the adoption is in the best interest of the
             270      child.
             271          (b) The exemptions from and requirements for evaluations, described in Subsections
             272      (1)(c), (2)(c), and (3), also apply to postplacement adoptive evaluations.
             273          (c) Upon the request of the petitioner, the court may waive the postplacement adoptive


             274      evaluation, unless it determines that it is in the best interest of the child to require the
             275      postplacement evaluation. Except where the child to be adopted and the prospective parent are
             276      related as set forth in Subsection (1)(c), the court may waive the postplacement adoptive
             277      evaluation for a child with special needs as defined in Section 62A-4a-902 .
             278          [(5)] (6) If the person or agency conducting the evaluation disapproves the adoptive
             279      placement, either in the preplacement or postplacement adoptive evaluation, the court may
             280      dismiss the petition. However, upon request of a prospective adoptive parent, the court shall
             281      order that an additional preplacement or postplacement adoptive evaluation be conducted, and
             282      hold a hearing on the suitability of the adoption, including testimony of interested parties.
             283          [(6)] (7) Prior to finalization of a petition for adoption the court shall review and
             284      consider the information and recommendations contained in the preplacement and
             285      postplacement adoptive studies required by this section.
             286          Section 4. Section 78-30-4.13 is amended to read:
             287           78-30-4.13. Notice of adoption proceedings.
             288          (1) An unmarried, biological father, by virtue of the fact that he has engaged in a
             289      sexual relationship with a woman, is [deemed] considered to be on notice that a pregnancy and
             290      an adoption proceeding regarding that child may occur, and has a duty to protect his own rights
             291      and interests. He is therefore entitled to actual notice of a birth or an adoption proceeding with
             292      regard to that child only as provided in this section.
             293          (2) Notice of an adoption proceeding shall be served on each of the following persons:
             294          (a) any person or agency whose consent or relinquishment is required under Section
             295      78-30-4.14 unless that right has been terminated by waiver, relinquishment, consent, or judicial
             296      action;
             297          (b) any person who has initiated a paternity proceeding and filed notice of that action
             298      with the state registrar of vital statistics within the Department of Health, in accordance with
             299      Subsection (3);
             300          (c) any legally appointed custodian or guardian of the adoptee;
             301          (d) the petitioner's spouse, if any, only if he has not joined in the petition;
             302          (e) the adoptee's spouse, if any;
             303          (f) any person who, prior to the time the mother executes her consent for adoption or
             304      relinquishes the child to a licensed child-placing agency, is recorded on the birth certificate as


             305      the child's father, with the knowledge and consent of the mother;
             306          (g) any person who is openly living in the same household with the child at the time
             307      the consent is executed or relinquishment made, and who is holding himself out to be the
             308      child's father; and
             309          (h) any person who is married to the child's mother at the time she executes her consent
             310      to the adoption or relinquishes the child for adoption.
             311          (3) (a) In order to preserve any right to notice and consent, an unmarried, biological
             312      father may initiate proceedings to establish paternity under Title 78, Chapter 45a, Uniform Act
             313      on Paternity, and file a notice of the initiation of those proceedings with the state registrar of
             314      vital statistics within the Department of Health prior to the mother's execution of consent or her
             315      relinquishment to an agency. That action and notice may also be filed prior to the child's birth.
             316          (b) If the unmarried, biological father does not know the county in which the birth
             317      mother resides, he may initiate his action in any county, subject to a change in trial pursuant to
             318      Section 78-13-7 .
             319          (c) The Department of Health shall provide forms for the purpose of filing the notice
             320      described in Subsection (3)(a), and make those forms available in the office of the county
             321      health department in each county.
             322          (4) Notice provided in accordance with this section need not disclose the name of the
             323      mother of the child who is the subject of an adoption proceeding.
             324          (5) The notice required by this section may be served immediately after relinquishment
             325      or execution of consent, but shall be served at least 30 days prior to the final dispositional
             326      hearing. The notice shall specifically state that the person served must respond to the petition
             327      within 30 days of service if he intends to intervene in or contest the adoption.
             328          (6) (a) Any person who has been served with notice of an adoption proceeding and who
             329      wishes to contest the adoption shall file a motion in the adoption proceeding within 30 days
             330      after service. The motion shall set forth specific relief sought and be accompanied by a
             331      memorandum specifying the factual and legal grounds upon which the motion is based.
             332          (b) Any person who fails to file a motion for relief within 30 days after service of
             333      notice waives any right to further notice in connection with the adoption, forfeits all rights in
             334      relation to the adoptee, and is barred from thereafter bringing or maintaining any action to
             335      assert any interest in the adoptee.


             336          (7) Service of notice under this section shall be made as follows:
             337          (a) With regard to a person whose consent is necessary under Section 78-30-4.14 ,
             338      service shall be in accordance with the provisions of the Utah Rules of Civil Procedure. If
             339      service is by publication, the court shall designate the content of the notice regarding the
             340      identity of the parties. The notice may not include the name of the person or persons seeking to
             341      adopt the adoptee.
             342          (b) As to any other person for whom notice is required under this section, service by
             343      certified mail, return receipt requested, is sufficient. If that service cannot be completed after
             344      two attempts, the court may issue an order providing for service by publication, posting, or by
             345      any other manner of service.
             346          (c) Notice to a person who has initiated a paternity proceeding and filed notice of that
             347      action with the state registrar of vital statistics in the Department of Health in accordance with
             348      the requirements of Subsection (3), shall be served by certified mail, return receipt requested, at
             349      the last address filed with the registrar.
             350          (8) The notice required by this section may be waived in writing by the person entitled
             351      to receive notice.
             352          (9) Proof of service of notice on all persons for whom notice is required by this section
             353      shall be filed with the court before the final dispositional hearing on the adoption.
             354          (10) Notwithstanding any other provision of law, neither the notice of an adoption
             355      proceeding nor any process in that proceeding is required to contain the name of the person or
             356      persons seeking to adopt the adoptee.
             357          (11) Except as to those persons whose consent to an adoption is required under Section
             358      78-30-4.14 , the sole purpose of notice under this section is to enable the person served to
             359      intervene in the adoption and present evidence to the court relevant to the best interest of the
             360      child.
             361          Section 5. Section 78-30-4.14 is amended to read:
             362           78-30-4.14. Necessary consent to adoption or relinquishment for adoption.
             363          (1) Either relinquishment for adoption to a licensed child-placing agency or consent to
             364      adoption is required from:
             365          (a) the adoptee, if he is more than 12 years of age, unless he does not have the mental
             366      capacity to consent;


             367          (b) both parents or the surviving parent of an adoptee who was conceived or born
             368      within a marriage, unless the adoptee is 18 years of age or older;
             369          (c) the mother of an adoptee born outside of marriage;
             370          (d) any biological parent who has been adjudicated to be the child's biological father by
             371      a court of competent jurisdiction prior to the mother's execution of consent or her
             372      relinquishment to an agency for adoption;
             373          (e) any biological parent who has executed and filed a voluntary declaration of
             374      paternity with the state registrar of vital statistics within the Department of Health in
             375      accordance with Title 78, Chapter 45e, prior to the mother's execution of consent or her
             376      relinquishment to an agency for adoption, which voluntary declaration of paternity is
             377      considered filed when entered into a database that can be accessed by the Department of
             378      Health;
             379          (f) an unmarried, biological father of an adoptee, as defined in Section 78-30-4.11 , only
             380      if the requirements and conditions of Subsection (2)(a) or (b) have been proven; and
             381          (g) the licensed child-placing agency to whom an adoptee has been relinquished and
             382      that is placing the child for adoption.
             383          (2) In accordance with Subsection (1), the consent of an unmarried, biological father is
             384      necessary only if the father has strictly complied with the requirements of this section.
             385          (a) (i) With regard to a child who is placed with adoptive parents more than six months
             386      after birth, an unmarried, biological father shall have developed a substantial relationship with
             387      the child, taken some measure of responsibility for the child and the child's future, and
             388      demonstrated a full commitment to the responsibilities of parenthood by financial support of
             389      the child, of a fair and reasonable sum and in accordance with the father's ability, when not
             390      prevented from doing so by the person or authorized agency having lawful custody of the child,
             391      and either:
             392          (A) visiting the child at least monthly when physically and financially able to do so,
             393      and when not prevented from doing so by the person or authorized agency having lawful
             394      custody of the child; or
             395          (B) regular communication with the child or with the person or agency having the care
             396      or custody of the child, when physically and financially unable to visit the child, and when not
             397      prevented from doing so by the person or authorized agency having lawful custody of the child.


             398          (ii) The subjective intent of an unmarried, biological father, whether expressed or
             399      otherwise, unsupported by evidence of acts specified in this Subsection (2) shall not preclude a
             400      determination that the father failed to meet the requirements of Subsection (2)(a)(i).
             401          (iii) An unmarried, biological father who openly lived with the child for a period of six
             402      months within the one-year period after the birth of the child and immediately preceding
             403      placement of the child with adoptive parents, and openly held himself out to be the father of the
             404      child during that period, shall be [deemed] considered to have developed a substantial
             405      relationship with the child and to have otherwise met the requirements of Subsection (2)(a)(i).
             406          (b) With regard to a child who is under six months of age at the time he is placed with
             407      adoptive parents, an unmarried, biological father shall have manifested a full commitment to
             408      his parental responsibilities by performing all of the acts described in this Subsection (2) prior
             409      to the time the mother executes her consent for adoption or relinquishes the child to a licensed
             410      child-placing agency. The father shall:
             411          (i) initiate proceedings to establish paternity under Title 78, Chapter 45a, Uniform Act
             412      on Paternity, and file with that court a sworn affidavit stating that he is fully able and willing to
             413      have full custody of the child, setting forth his plans for care of the child, and agreeing to a
             414      court order of child support and the payment of expenses incurred in connection with the
             415      mother's pregnancy and the child's birth;
             416          (ii) file notice of the commencement of paternity proceedings with the state registrar of
             417      vital statistics within the Department of Health, in a confidential registry established by the
             418      department for that purpose, which notice is considered filed when the notice is entered in the
             419      registry of notices from unmarried biological fathers; and
             420          (iii) if he had actual knowledge of the pregnancy, paid a fair and reasonable amount of
             421      the expenses incurred in connection with the mother's pregnancy and the child's birth, in
             422      accordance with his means, and when not prevented from doing so by the person or authorized
             423      agency having lawful custody of the child.
             424          (3) An unmarried, biological father who resides in another state shall be presumed to
             425      know of, and must strictly comply with, the requirements of this section, unless he proves the
             426      following:
             427          (a) he was not a resident of this state at the time the mother executed her consent for
             428      adoption or relinquished the child to a licensed child-placing agency;


             429          (b) the child was not conceived in this state;
             430          (c) he attempted, through every reasonable means, to locate the mother or child, but did
             431      not know or have reason to know prior to the time the mother executed her consent for
             432      adoption or relinquished the child to a licensed child-placing agency, that the mother or child
             433      was located in this state; and
             434          (d) he manifested a full commitment to his parental responsibilities as follows:
             435          (i) he complied with the requirements of Subsections (2)(b)(i) and (ii):
             436          (A) prior to the time the mother executed a consent for adoption or relinquished the
             437      child to a licensed child placing agency; or
             438          (B) within a reasonable time from the date he knew, or through the exercise of
             439      reasonable diligence should have known, that the mother or child was located in this state.
             440          (ii) he attempted, through every reasonable means, to locate the mother or child but he
             441      did not know or have reason to know prior to the time the mother executed her consent for
             442      adoption or relinquished the child to a licensed child-placing agency, that the mother or child
             443      was located in this state; and
             444          (A) he complied with the most stringent and complete requirements of the state where
             445      the mother resided immediately before coming to this state, in order to protect and preserve his
             446      parental interest and his rights in the child in cases of adoption; or
             447          (B) if he did not know or have reason to know where the mother resided immediately
             448      before coming to this state, he complied with the most stringent and complete requirements of
             449      the state where the child was conceived, in order to protect and preserve his parental interest
             450      and his rights in the child in cases of adoption.
             451          [(3)] (4) An unmarried, biological father whose consent is required under Subsection
             452      (1) [or], (2), or (3) may nevertheless lose his right to consent if the court determines, in
             453      accordance with the requirements and procedures of Title 78, Chapter 3a, Part 4, Termination
             454      of Parental Rights Act, that his rights should be terminated, based on the petition of any
             455      interested party.
             456          [(4)] (5) If there is no showing that an unmarried, biological father has consented to or
             457      waived his rights regarding a proposed adoption, the petitioner shall file with the court a
             458      certificate from the state registrar of vital statistics within the Department of Health, stating
             459      that a diligent search has been made of the registry of notices from unmarried biological fathers


             460      described in Subsection (2)(b)(ii), and that no filing has been found pertaining to the father of
             461      the child in question, or if a filing is found, stating the name of the putative father and the time
             462      and date of filing. That certificate shall be filed with the court prior to entrance of a final
             463      decree of adoption.
             464          [(5)] (6) An unmarried, biological father who does not fully and strictly comply with
             465      each of the conditions provided in this section, is deemed to have waived and surrendered any
             466      right in relation to the child, including the right to notice of any judicial proceeding in
             467      connection with the adoption of the child, and his consent to the adoption of the child is not
             468      required.
             469          Section 6. Section 78-30-4.15 is amended to read:
             470           78-30-4.15. Responsibility of each party for own actions -- Fraud or
             471      misrepresentation -- Statutory compliance.
             472          (1) Each parent of a child conceived or born outside of marriage is responsible for his
             473      or her own actions and is not excused from strict compliance with the provisions of this
             474      chapter based upon any action, statement, or omission of the other parent or third parties.
             475          (2) Any person injured by fraudulent representations or actions in connection with an
             476      adoption is entitled to pursue civil or criminal penalties in accordance with existing law. A
             477      fraudulent representation is not a defense to strict compliance with the requirements of this
             478      chapter, and is not a basis for dismissal of a petition for adoption, vacation of an adoption
             479      decree, or an automatic grant of custody to the offended party. Custody determinations shall be
             480      based on the best interest of the child, in accordance with the provisions of Section 78-30-4.16 .
             481          (3) The Legislature finds no practical way to remove all risk of fraud or
             482      misrepresentation in adoption proceedings, and has provided a method for absolute protection
             483      of an unmarried, biological father's rights by compliance with the provisions of this chapter. In
             484      balancing the rights and interests of the state, and of all parties affected by fraud, specifically
             485      the child, the adoptive parents, and the unmarried, biological father, the Legislature has
             486      determined that the unmarried, biological father is in the best position to prevent or ameliorate
             487      the effects of fraud and that, therefore, the burden of fraud shall be borne by him.
             488          [(4) The Legislature finds that an unmarried biological father who resides in another
             489      state may not, in every circumstance, be reasonably presumed to know of, and strictly comply
             490      with, the requirements of this chapter. Therefore when all of the following requirements have


             491      been met, that unmarried biological father may contest an adoption, prior to finalization of the
             492      decree of adoption, and assert his interest in the child; the court may then, in its discretion,
             493      proceed with an evidentiary hearing under Subsection 78-30-4.16 (2):]
             494          [(a) the unmarried biological father resides and has resided in another state where the
             495      unmarried mother was also located or resided;]
             496          [(b) the mother left that state without notifying or informing the unmarried biological
             497      father that she could be located in the state of Utah;]
             498          [(c) the unmarried biological father has, through every reasonable means, attempted to
             499      locate the mother but does not know or have reason to know that the mother is residing in the
             500      state of Utah; and]
             501          [(d) the unmarried biological father has complied with the most stringent and complete
             502      requirements of the state where the mother previously resided or was located, in order to
             503      protect and preserve his parental interest and right in the child in cases of adoption.]
             504          Section 7. Section 78-30-4.16 is amended to read:
             505           78-30-4.16. Contested adoptions -- Rights of parties -- Determination of custody.
             506          [(1) Whenever any party contests an adoption, the court shall first determine whether
             507      the provisions of this chapter have been complied with. If a party who was entitled to notice
             508      and consent under the provisions of this chapter, was denied that right, and did not otherwise
             509      waive or forfeit that right under the terms of this chapter, the court may:]
             510          [(a) enjoin the adoption, or dismiss the adoption petition, and proceed in accordance
             511      with Subsection (2); or]
             512          [(b) determine whether proper grounds for termination of that parent's rights exist and,
             513      if so, order that the parent's rights be terminated in accordance with the provisions of this
             514      chapter or Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act.]
             515          [(2) (a) In any case, and under any circumstance, if a court determines that a petition
             516      for adoption may not be granted, the court may not automatically grant custody of a child to a
             517      challenging biological parent, but shall conduct an evidentiary hearing in each case, in order to
             518      determine who should have custody of the child, in accordance with the child's best interest.]
             519          [(b) Evidence considered at that hearing may include, but is not limited to, evidence of
             520      psychological or emotional bonds that the child had formed with third parties and any
             521      detriment that a change in custody may cause to the child. The fact that a person relinquished a


             522      child to a licensed child placing agency or executed a consent for adoption may not be
             523      considered by the court as evidence of neglect or abandonment.]
             524          (1) If a person whose consent for an adoption is required pursuant to Subsection
             525      78-30-4.14 (1)(b), (c), (d), (e), or (f) refused to consent, the court shall determine whether
             526      proper grounds exist for the termination of that person's rights pursuant to the provisions of this
             527      chapter or Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act.
             528          (2) If there are proper grounds to terminate the person's parental rights, the court shall
             529      order that the person's rights be terminated. If there are not proper grounds to terminate the
             530      person's parental rights, the court shall:
             531          (a) dismiss the adoption petition; and
             532          (b) conduct an evidentiary hearing to determine who should have custody of the child
             533      and award custody in accordance with the child's best interest.
             534          (3) Evidence considered at the custody hearing may include evidence of psychological
             535      or emotional bonds that the child has formed with a third person, including the prospective
             536      adoptive parent, and any detriment that a change in custody may cause the child.
             537          (4) The fact that a person relinquished a child to a licensed child-placing agency or
             538      consented to the adoption may not be considered as evidence that it is not in the child's best
             539      interest for custody to be awarded to such person or that:
             540          (a) the person is unfit or incompetent to be a parent;
             541          (b) the person has neglected or abandoned the child; or
             542          (c) the person is not interested in having custody of the child.
             543          [(c)] (5) Any custody order entered pursuant to this section may also include provisions
             544      for parent-time by a biological parent or visitation by an interested third party, and provide for
             545      the financial support of the child.
             546          (6) If a person or entity whose consent is required for an adoption under Subsection
             547      78-30-4.14 (1)(a) or (g) refuses to consent, the court shall proceed with an evidentiary hearing
             548      and award custody as set forth in Subsection (2). The court may also finalize the adoption if
             549      doing so is in the best interest of the child.
             550          [(3)] (7) An adoption may not be contested after the final decree of adoption is entered.
             551          Section 8. Section 78-30-4.18 is amended to read:
             552           78-30-4.18. Persons who may take consents and relinquishments.


             553          (1) A consent or relinquishment by a birth mother or an adoptee shall be signed before:
             554          (a) a judge of any court that has jurisdiction over adoption proceedings, or a [public
             555      officer] person appointed by that judge for the purpose of taking consents or relinquishments;
             556      or
             557          (b) a person who is authorized by a licensed child-placing agency to take consents or
             558      relinquishments so long as the signature is notarized or witnessed by two individuals who are
             559      not members of the birth mother's immediate family.
             560          (2) If the consent or relinquishment of a birth mother or adoptee is taken out of state it
             561      shall be signed before:
             562          (a) a person who is authorized by a child-placing agency [licensed by that state] to take
             563      consents or relinquishments; or
             564          (b) a person authorized or appointed to take consents or relinquishments by a court of
             565      this state that has jurisdiction over adoption proceedings, or a court of that state that has
             566      jurisdiction over adoption proceedings.
             567          (3) The consent or relinquishment of any other person or agency as required by Section
             568      78-30-4.14 may be signed before a Notary Public or any person authorized to take a consent or
             569      relinquishment under Subsection (1) or (2).
             570          (4) A person, authorized by Subsection (1) or (2) to take consents or relinquishments,
             571      shall certify to the best of his information and belief that the person executing the consent or
             572      relinquishment has read and understands the consent or relinquishment and has signed it freely
             573      and voluntarily.
             574          (5) A person executing a consent or relinquishment is entitled to receive a copy of the
             575      consent or relinquishment.
             576          Section 9. Section 78-30-4.19 is amended to read:
             577           78-30-4.19. Time period prior to birth mother's consent.
             578          (1) A birth mother may not consent to the adoption of her child or relinquish control or
             579      custody of her child until at least 24 hours after the birth of her child.
             580          (2) The consent or relinquishment of any other person as required by Section
             581      78-30-4.14 may be executed at any time, including prior to the birth of the child.
             582          Section 10. Section 78-30-4.23 is amended to read:
             583           78-30-4.23. Criminal sexual offenses.


             584          [The notice and consent provisions of this chapter do not apply in cases where the child
             585      is conceived as a result of] A biological father is not entitled to notice of an adoption
             586      proceeding, nor is the consent of a biological father required in connection with an adoption
             587      proceeding, in cases where it is shown that the child who is the subject of the proceeding was
             588      conceived as a result of conduct which would constitute any sexual offense described in Title
             589      76, Chapter 5, Part 4, regardless of whether the biological father is formally charged with or
             590      convicted of a criminal offense.
             591          Section 11. Section 78-30-4.24 is amended to read:
             592           78-30-4.24. Determination of rights prior to adoption petition.
             593          Any interested [party] person may petition [the] a court having jurisdiction over
             594      adoption proceedings for a determination of the rights and interests of any person who may
             595      claim an interest in a child under this chapter, at any time prior to the [filing of a petition for]
             596      finalization of the adoption, including any time prior to the child's birth.
             597          Section 12. Section 78-30-7 is amended to read:
             598           78-30-7. District court venue -- Jurisdiction of juvenile court -- Jurisdiction over
             599      nonresidents -- Time for filing.
             600          (1) Adoption proceedings shall be commenced by filing a petition with the clerk of the
             601      district court either:
             602          (a) in the district where the person adopting resides, or if the person adopting is not a
             603      resident of this state, in the district where the child was born or in which the child-placing
             604      agency that has custody of the child is located; or
             605          (b) with the juvenile court as provided in Subsection 78-3a-104 (1)(o).
             606          [(2) If a child is conceived in Utah, adoption proceedings may be commenced by filing
             607      a petition with the clerk of the district court in the district where the child was born.]
             608          [(3)] (2) All orders, decrees, agreements, and notices in the proceedings shall be filed
             609      with the clerk of the court where the adoption proceedings were commenced under Subsection
             610      (1) [or (2)].
             611          [(4)] (3) A petition for adoption shall be filed within 30 days of the date the adoptee is
             612      placed in the home of the petitioners for the purpose of adoption, unless the time for filing has
             613      been extended by the court, or unless the adoption is arranged by a licensed child-placing
             614      agency in which case the agency may extend the filing time.


             615          (4) (a) If a person whose consent for the adoption is required under Section 78-30-4.14
             616      cannot be found within the state, the fact of the minor's presence within the state shall confer
             617      jurisdiction on the court in proceedings under this chapter as to such absent person, provided
             618      that due notice has been given in accordance with the Utah Rules of Civil Procedure.
             619          (b) The notice may not include:
             620          (i) the name of the person or persons seeking to adopt the adoptee; or
             621          (ii) an unmarried mother without that person's consent.
             622          (5) Service of notice as provided in Subsection (6) shall vest the court with jurisdiction
             623      over the person served in the same manner and to the same extent as if the person served was
             624      served personally within the state.
             625          (6) In the case of service outside the state, service completed not less than five days
             626      before the time set in the notice for appearance of the person served, shall be sufficient to
             627      confer jurisdiction.
             628          (7) Computation of periods of time not otherwise set forth in this section shall be made
             629      in accordance with the Utah Rules of Civil Procedure.


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