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S.B. 103





Sponsor: Parley G. Hellewell

             6      LONG TITLE
             7      General Description:
             8          This bill modifies provisions regarding child removal.
             9      Highlighted Provisions:
             10          This bill:
             11          .    creates a balancing test between the welfare and protection of a child against the
             12      rights of the parent or guardian and the integrity of the family;
             13          .    requires a showing of serious danger to a child's safety or welfare before the state
             14      may obtain custody of a child;
             15          .    changes the standard of concern for a child's health, safety, and welfare; and
             16          .    makes technical changes.
             17      Monies Appropriated in this Bill:
             18          None
             19      Other Special Clauses:
             20          None
             21      Utah Code Sections Affected:
             22      AMENDS:
             23          62A-4a-201, as last amended by Chapter 274, Laws of Utah 2000
             24          62A-4a-203, as last amended by Chapter 274, Laws of Utah 1998
             26      Be it enacted by the Legislature of the state of Utah:
             27          Section 1. Section 62A-4a-201 is amended to read:

             28           62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
             29      state.
             30          (1) (a) Courts have recognized a general presumption that it is in the best interest and
             31      welfare of a child to be raised under the care and supervision of his natural parents. A child's
             32      need for a normal family life in a permanent home, and for positive, nurturing family
             33      relationships will usually best be met by his natural parents. Additionally, the integrity of the
             34      family unit, and the right of parents to conceive and raise their children have found protection
             35      in the due process clause of the Fourteenth Amendment to the United States Constitution. The
             36      right of a fit, competent parent to raise his child has long been protected by the laws and
             37      Constitution of this state and of the United States.
             38          (b) It is the public policy of this state that parents retain the fundamental right and duty
             39      to exercise primary control over the care, supervision, upbringing, and education of their
             40      children who are in their custody.
             41          (2) It is also the public policy of this state that children have the right to protection
             42      from abuse and neglect, and that the state retains a compelling interest in investigating,
             43      prosecuting, and punishing abuse and neglect, as defined in this chapter, and in Title 78,
             44      Chapter 3a. Therefore, as a counterweight to parental rights, the state, as parens patriae, has an
             45      interest in and responsibility to protect children whose parents abuse them or do not adequately
             46      provide for their welfare. There are circumstances where a parent's conduct or condition is a
             47      substantial departure from the norm and the parent is unable or unwilling to render safe and
             48      proper parental care and protection. Under those circumstances, the welfare and protection of
             49      children is [the consideration of paramount importance] balanced against the rights of the
             50      parent or guardian of the children and the integrity of the family.
             51          (3) When the division intervenes on behalf of an abused, neglected, or dependent child,
             52      it shall take into account the child's need for protection from immediate harm. Throughout its
             53      involvement, the division shall utilize the least intrusive means available to protect a child, in
             54      an effort to ensure that children are brought up in stable, permanent families, rather than in
             55      temporary foster placements under the supervision of the state.
             56          (4) When circumstances within the family pose a [threat] serious danger to the child's
             57      safety or welfare, the state's interest in the child's welfare is paramount to the rights of a parent.
             58      The division may obtain custody of the child for a planned period and place him in a safe

             59      environment, in accordance with the requirements of Title 78, Chapter 3a, Part 3, Abuse,
             60      Neglect, and Dependency Proceedings.
             61          (5) In determining and making "reasonable efforts" with regard to a child, pursuant to
             62      the provisions of Section 62A-4a-203 and keeping with the presumptions described in
             63      Subsection (1), both the division's and the court's paramount concern shall be the child's health,
             64      safety, and welfare.
             65          (6) In cases where actual sexual abuse, abandonment, or serious physical abuse or
             66      neglect are involved, the state has no duty to make "reasonable efforts" or to, in any other way,
             67      attempt to maintain a child in his home, provide reunification services, or to attempt to
             68      rehabilitate the offending parent or parents. This Subsection (6) does not exempt the division
             69      from providing court-ordered services.
             70          (7) (a) It is the division's obligation, under federal law, to achieve permanency for
             71      children who are abused, neglected, or dependent. If the use or continuation of "reasonable
             72      efforts," as described in Subsections (5) and (6), is determined to be inconsistent with the
             73      permanency plan for a child, then measures shall be taken, in a timely manner, to place the
             74      child in accordance with the permanency plan, and to complete whatever steps are necessary to
             75      finalize the permanent placement of the child.
             76          (b) If, because of his conduct or condition, a parent is determined to be unfit or
             77      incompetent based on the grounds for termination of parental rights described in Title 78,
             78      Chapter 3a, Part 4, Termination of Parental Rights Act, the welfare and best interest of the
             79      child is of paramount importance, and shall govern in determining whether that parent's rights
             80      should be terminated.
             81          Section 2. Section 62A-4a-203 is amended to read:
             82           62A-4a-203. Removal of a child from his home -- Reasonable efforts to maintain
             83      child in home -- Exception -- Reasonable efforts for reunification.
             84          (1) Because removal of a child from his home may affect protected, constitutional
             85      rights of the parent, the division shall:
             86          (a) when possible and appropriate, without danger to the child's welfare, make
             87      reasonable efforts to prevent or eliminate the need for removal of a child from his home prior
             88      to placement in substitute care;
             89          (b) determine whether there is substantial cause to believe that a child has been or is in

             90      danger of abuse or neglect, in accordance with the guidelines described in Title 78, Chapter 3a,
             91      Part 3, Abuse, Neglect, and Dependency Proceedings, prior to removing the child from his
             92      home; and
             93          (c) when it is possible and appropriate, and in accordance with the limitations and
             94      requirements of Sections 78-3a-311 and 78-3a-312 , make reasonable efforts to make it possible
             95      for a child in substitute care to return to his home.
             96          (2) In determining the reasonableness of efforts needed to maintain a child in his home
             97      or to return a child to his home, in accordance with Subsection (1)(a) or (c), the child's health,
             98      safety, and welfare shall be [the paramount] a primary concern. Additionally, the division shall
             99      consider whether those services would be effective within a six-month period, and whether
             100      they would be likely to prevent reabuse or continued neglect of the child.
             101          (3) When removal and placement in substitute care is necessary to protect a child, the
             102      "efforts" described in Subsections (1) and (2) would not be reasonable or appropriate and,
             103      therefore, should not be utilized.
             104          (4) In cases where obvious sexual abuse, abandonment, or serious physical abuse or
             105      neglect are involved, the state has no duty to make "reasonable efforts" or to, in any other way,
             106      attempt to maintain a child in his home, provide reunification services, or to attempt to
             107      rehabilitate the offending parent or parents. This subsection does not exempt the division from
             108      providing court ordered services.

Legislative Review Note
    as of 1-8-04 10:18 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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