H.B. 338 Enrolled

CHILD AND FAMILY WELFARE REVISIONS
2005 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: LaVar Christensen
Senate Sponsor: Curtis S. Bramble

LONG TITLE
General Description:
This bill amends provisions of the Utah Human Services Code and the Judicial Code
relating to child welfare and the rights of parents.
Highlighted Provisions:
This bill:
. describes the rights of parents and the obligations of the state with regard to children
and the protection of children;
. provides that prior to an adjudication of unfitness, government action in relation to
parents and their children may not exceed the least restrictive means or alternatives
available to accomplish a compelling state interest;
. requires that the state juvenile court:
. act in the best interests of a minor in all cases; and
. preserve and strengthen family ties;
. provides that the appointment of an attorney guardian ad litem for a minor shall be
based on findings that establish the necessity for the appointment; and
. makes technical changes.
Monies Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:

62A-4a-201, as last amended by Chapter 274, Laws of Utah 2000
78-3a-102, as last amended by Chapter 329, Laws of Utah 1997
78-3a-912, as last amended by Chapter 356, Laws of Utah 2004

Be it enacted by the Legislature of the state of Utah:
Section 1. Section 62A-4a-201 is amended to read:
62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
state.
(1) (a) Under both the United States Constitution and the constitution of this state, a
parent possesses a fundamental liberty interest in the care, custody, and management of the
parent's children. A fundamentally fair process must be provided to parents if the state moves to
challenge or interfere with parental rights. A governmental entity must support any actions or
allegations made in opposition to the rights and desires of a parent regarding the parent's children
by sufficient evidence to satisfy a parent's constitutional entitlement to heightened protection
against government interference with the parent's fundamental rights and liberty interests.
(b) The fundamental liberty interest of a parent concerning the care, custody, and
management of the parent's children is recognized, protected, and does not cease to exist simply
because a parent may fail to be a model parent or because the parent's child is placed in the
temporary custody of the state. At all times, a parent retains a vital interest in preventing the
irretrievable destruction of family life. Prior to an adjudication of unfitness, government action
in relation to parents and their children may not exceed the least restrictive means or alternatives
available to accomplish a compelling state interest. Until the state proves parental unfitness, the
child and the child's parents share a vital interest in preventing erroneous termination of their
natural relationship and the state cannot presume that a child and the child's parents are
adversaries.
[(1) (a)] (c) [Courts have recognized a general presumption that it] It is in the best
interest and welfare of a child to be raised under the care and supervision of [his] the child's
natural parents. A child's need for a normal family life in a permanent home, and for positive,

nurturing family relationships will usually best be met by [his] the child's natural parents.
Additionally, the integrity of the family unit, and the right of parents to conceive and raise their
children have found protection in the due process clause of the Fourteenth Amendment to the
United States Constitution. The right of a fit, competent parent to raise [his] the parent's child
without undue government interference is a fundamental liberty interest that has long been
protected by the laws and Constitution of this state and of the United States.
[(b)] (d) It is the public policy of this state that parents retain the fundamental right and
duty to exercise primary control over the care, supervision, upbringing, and education of their
children [who are in their custody].
(e) Subsections (2) through (7) shall be interpreted and applied consistent with this
Subsection (1).
(2) It is also the public policy of this state that children have the right to protection from
abuse and neglect, and that the state retains a compelling interest in investigating, prosecuting,
and punishing abuse and neglect, as defined in this chapter, and in Title 78, Chapter 3a, Juvenile
Court Act of 1996. Therefore, [as a counterweight to parental rights,] the state, as parens patriae,
has an interest in and responsibility to protect children whose parents abuse them or do not
adequately provide for their welfare. There [are] may be circumstances where a parent's conduct
or condition is a substantial departure from the norm and the parent is unable or unwilling to
render safe and proper parental care and protection. Under those circumstances, the state may
take action for the welfare and protection of the parent's children [is the consideration of
paramount importance].
(3) When the division intervenes on behalf of an abused, neglected, or dependent child, it
shall take into account the child's need for protection from immediate harm. Throughout its
involvement, the division shall utilize the least intrusive and least restrictive means available to
protect a child, in an effort to ensure that children are brought up in stable, permanent families,
rather than in temporary foster placements under the supervision of the state.
(4) When circumstances within the family pose a threat to the child's immediate safety or
welfare, the [state's interest in the child's welfare is paramount to the rights of a parent. The]

division may obtain custody of the child for a planned period and place [him] the child in a safe
environment, in accordance with the requirements of Title 78, Chapter 3a, Part 3, Abuse,
Neglect, and Dependency Proceedings.
(5) In determining and making "reasonable efforts" with regard to a child, pursuant to the
provisions of Section 62A-4a-203 [and keeping with the presumptions described in Subsection
(1)], both the division's and the court's paramount concern shall be the child's health, safety, and
welfare. The desires of a parent for the parent's child shall be given full and serious
consideration by the division and the court.
(6) In cases where actual sexual abuse, abandonment, or serious physical abuse or
neglect are [involved] established, the state has no duty to make "reasonable efforts" or to, in any
other way, attempt to maintain a child in [his] the child's home, provide reunification services, or
to attempt to rehabilitate the offending parent or parents. This Subsection (6) does not exempt
the division from providing court-ordered services.
(7) (a) It is the division's obligation, under federal law, to achieve permanency for
children who are abused, neglected, or dependent. If the use or continuation of "reasonable
efforts," as described in Subsections (5) and (6), is determined to be inconsistent with the
permanency plan for a child, then measures shall be taken, in a timely manner, to place the child
in accordance with the permanency plan, and to complete whatever steps are necessary to finalize
the permanent placement of the child.
(b) If, because of his conduct or condition, a parent is determined to be unfit or
incompetent based on the grounds for termination of parental rights described in Title 78,
Chapter 3a, Part 4, Termination of Parental Rights Act, the welfare and best interest of the child
is of paramount importance, and shall govern in determining whether that parent's rights should
be terminated.
Section 2. Section 78-3a-102 is amended to read:
78-3a-102. Establishment of juvenile court -- Organization and status of court --
Purpose.
(1) There is established for the state a juvenile court.

(2) The juvenile court is a court of record. It shall have a seal, and its judges, clerks, and
referees have the power to administer oaths and affirmations.
(3) The juvenile court is of equal status with the district courts of the state.
(4) The juvenile court is established as a forum for the resolution of all matters properly
brought before it, consistent with applicable constitutional and statutory requirements of due
process.
(5) The purpose of the court under this chapter is to:
(a) promote public safety and individual accountability by the imposition of appropriate
sanctions on persons who have committed acts in violation of law;
(b) order appropriate measures to promote guidance and control, preferably in the minor's
own home, as an aid in the prevention of future unlawful conduct and the development of
responsible citizenship;
(c) where appropriate, order rehabilitation, reeducation, and treatment for persons who
have committed acts bringing them within the court's jurisdiction;
(d) adjudicate matters that relate to minors who are beyond parental or adult control and
to establish appropriate authority over these minors by means of placement and control orders;
(e) adjudicate matters that relate to abused, neglected, and dependent minors and to
provide care and protection for these minors by placement, protection, and custody orders;
(f) remove a minor from parental custody only where the minor's safety or welfare, or the
public safety, may not otherwise be adequately safeguarded; and
(g) consistent with the ends of justice, [strive to] act in the best interests of the [minor's]
minor in all cases and [attempt to] preserve and strengthen family ties [where possible].
Section 3. Section 78-3a-912 is amended to read:
78-3a-912. Appointment of attorney guardian ad litem -- Right of refusal -- Duties
and responsibilities -- Training -- Trained staff and court-appointed special advocate
volunteers -- Costs -- Immunity -- Annual report.
(1) (a) The court may appoint an attorney guardian ad litem to represent the best interest
of a minor involved in any case before the court and shall consider [only] the best interest of a

minor, consistent with the provisions of Section 62A-4a-201 , in determining whether to appoint a
guardian ad litem.
(b) In all cases where an attorney guardian ad litem is appointed, the court shall make a
finding that establishes the necessity of the appointment.
(2) An attorney guardian ad litem shall represent the best interest of each minor who
may become the subject of a petition alleging abuse, neglect, or dependency, from the date the
minor is removed from the minor's home by the division, or the date the petition is filed,
whichever occurs earlier.
(3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad litem,
shall:
(a) represent the best interest of the minor in all proceedings;
(b) be trained in applicable statutory, regulatory, and case law, and in accordance with
the United States Department of Justice National Court Appointed Special Advocate Association
guidelines, prior to representing any minor before the court;
(c) conduct or supervise an independent investigation in order to obtain first-hand, a clear
understanding of the situation and needs of the child;
(d) (i) personally meet with the minor;
(ii) personally interview the minor if the minor is old enough to communicate;
(iii) determine the minor's goals and concerns regarding placement; and
(iv) personally assess or supervise an assessment of the appropriateness and safety of the
minor's environment in each placement;
(e) file written motions, responses, or objections at all stages of a proceeding when
necessary to protect the best interest of a minor;
(f) personally or through a trained volunteer, paralegal, or other trained staff, attend all
administrative and foster care citizen review board hearings pertaining to the minor's case;
(g) participate in all appeals unless excused by order of the court;
(h) be familiar with local experts who can provide consultation and testimony regarding
the reasonableness and appropriateness of efforts made by the Division of Child and Family

Services to maintain a minor in the minor's home or to reunify a minor with the minor's parent;
(i) to the extent possible, and unless it would be detrimental to the minor, personally or
through a trained volunteer, paralegal, or other trained staff, keep the minor advised of the status
of the minor's case, all court and administrative proceedings, discussions, and proposals made by
other parties, court action, and psychiatric, medical, or other treatment or diagnostic services that
are to be provided to the minor;
(j) review proposed orders for, and as requested by the court, prepare proposed orders
with clear and specific directions regarding services, treatment, and evaluation, assessment, and
protection of the minor and the minor's family; and
(k) personally or through a trained volunteer, paralegal, or other trained staff, monitor
implementation of a minor's treatment plan and any dispositional orders to determine whether
services ordered by the court are actually provided, are provided in a timely manner, and attempt
to assess whether they are accomplishing their intended goal.
(4) (a) An attorney guardian ad litem may use trained volunteers, in accordance with
Title 67, Chapter 20, Volunteer Government Workers Act, trained paralegals, and other trained
staff to assist in investigation and preparation of information regarding the cases of individual
minors before the court. An attorney guardian ad litem may not, however, delegate the attorney's
responsibilities described in Subsection (3).
(b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained in
and follow, at a minimum, the guidelines established by the United States Department of Justice
Court Appointed Special Advocate Association.
(c) The court may use volunteers trained in accordance with the requirements of
Subsection (4)(b) to assist in investigation and preparation of information regarding the cases of
individual minors within the jurisdiction.
(d) When possible and appropriate, the court may use a volunteer who is a peer of the
minor appearing before the court, in order to provide assistance to that minor, under the
supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or
other trained staff.

(5) The attorney guardian ad litem shall continue to represent the best interest of the
minor until released from duties by the court.
(6) (a) The juvenile court is responsible for all costs resulting from the appointment of an
attorney guardian ad litem and the costs of volunteer, paralegal, and other staff appointment and
training, and shall use funds appropriated by the Legislature for the guardian ad litem program to
cover those costs.
(b) (i) When the court appoints an attorney guardian ad litem under this section, the court
may assess all or part of the attorney's fees, court costs, and paralegal, staff, and volunteer
expenses against the minor's parents, parent, or legal guardian in a proportion that the court
determines to be just and appropriate.
(ii) The court may not assess those fees or costs against a legal guardian, when that
guardian is the state, or against a parent who is found to be impecunious. If a person claims to be
impecunious, the court shall require of that person an affidavit of impecuniosity as provided in
Section 78-7-36 and the court shall follow the procedures and make the determinations as
provided in Section [ 78-7-36 ] 78-7-37 .
(7) An attorney guardian ad litem appointed under this section, when serving in the scope
of the attorney guardian ad litem's duties as guardian ad litem is considered an employee of the
state for purposes of indemnification under Title 63, Chapter 30, Utah Governmental Immunity
Act.
(8) (a) An attorney guardian ad litem shall represent the best interest of a minor. If the
minor's wishes differ from the attorney's determination of the minor's best interest, the attorney
guardian ad litem shall communicate the minor's wishes to the court in addition to presenting the
attorney's determination of the minor's best interest. A difference between the minor's wishes
and the attorney's determination of best interest may not be considered a conflict of interest for
the attorney.
(b) The court may appoint one attorney guardian ad litem to represent the best interests
of more than one minor child of a marriage.
(9) An attorney guardian ad litem shall be provided access to all Division of Child and

Family Services records regarding the minor at issue and the minor's family.
(10) An attorney guardian ad litem shall maintain current and accurate records regarding
the number of times the attorney has had contact with each minor and the actions the attorney has
taken in representation of the minor's best interest.
(11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian ad
litem are confidential and may not be released or made public upon subpoena, search warrant,
discovery proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2,
Government Records Access and Management Act.
(b) All records of an attorney guardian ad litem are subject to legislative subpoena, under
Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the Legislature.
(c) Records released in accordance with Subsection (11)(b) shall be maintained as
confidential by the Legislature. The Office of the Legislative Auditor General may, however,
include summary data and nonidentifying information in its audits and reports to the Legislature.
(d) Because of the unique role of an attorney guardian ad litem described in Subsection
(8), and the state's role and responsibility to provide a guardian ad litem program and, as parens
patriae, to protect minors, Subsection (11)(b) constitutes an exception to Rules of Professional
Conduct, Rule 1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client privilege does not
bar access to the records of an attorney guardian ad litem by the Legislature, through legislative
subpoena.
(e) The Office of the Guardian Ad Litem shall present an annual report to the Child
Welfare Legislative Oversight Panel detailing:
(i) the development, policy, and management of the statewide guardian ad litem
program;
(ii) the training and evaluation of attorney guardians ad litem and volunteers; and
(iii) the number of children served by the Office of the Guardian Ad Litem.