First Substitute H.B. 338

Representative LaVar Christensen proposes the following substitute bill:

1 CHILD AND FAMILY WELFARE REVISIONS
2 2005 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: LaVar Christensen
5
6 LONG TITLE
7 General Description:
8 This bill amends provisions of the Utah Human Services Code and the Judicial Code
9 relating to child welfare and the rights of parents.
10 Highlighted Provisions:
11 This bill:
12 . describes the rights of parents and the obligations of the state with regard to children
13 and the protection of children;
14 . provides that prior to an adjudication of unfitness, government action in relation to
15 parents and their children may not exceed the least restrictive means or alternatives
16 available to accomplish a compelling state interest;
17 . provides that all portions of the Utah Code relating to child protection be interpreted
18 and applied consistent with parental rights and government obligations;
19 . requires that the state juvenile court:
20 . act in the best interests of a minor in all cases; and
21 . preserve and strengthen family ties;
22 . provides that the appointment of an attorney guardian ad litem for a minor shall be
23 based on findings that establish the necessity for the appointment;
24 . provides that the appointment of an attorney guardian ad litem may be terminated at
25 any stage of a child protection proceeding upon motion of the court or any party to

26 the proceeding; and
27 . makes technical changes.
28 Monies Appropriated in this Bill:
29 None
30 Other Special Clauses:
31 None
32 Utah Code Sections Affected:
33 AMENDS:
34 62A-4a-201, as last amended by Chapter 274, Laws of Utah 2000
35 78-3a-102, as last amended by Chapter 329, Laws of Utah 1997
36 78-3a-912, as last amended by Chapter 356, Laws of Utah 2004
37
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 62A-4a-201 is amended to read:
40 62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
41 state.
42 (1) (a) Under both the United States Constitution and the constitution of this state, a
43 parent possesses a fundamental liberty interest in the care, custody, and management of the
44 parent's children. A fundamentally fair process must be provided to parents if the state moves
45 to challenge or interfere with parental rights. A governmental entity must support any actions
46 or allegations made in opposition to the rights and desires of a parent regarding the parent's
47 children by sufficient evidence to satisfy a parent's constitutional entitlement to heightened
48 protection against government interference with the parent's fundamental rights and liberty
49 interests.
50 (b) The fundamental liberty interest of a parent concerning the care, custody, and
51 management of the parent's children is recognized, protected, and does not cease to exist
52 simply because a parent may fail to be a model parent or because the parent's child is placed in
53 the temporary custody of the state. At all times, a parent retains a vital interest in preventing
54 the irretrievable destruction of family life. Prior to an adjudication of unfitness, government
55 action in relation to parents and their children may not exceed the least restrictive means or
56 alternatives available to accomplish a compelling state interest. Until the state proves parental

57 unfitness, the child and the child's parents share a vital interest in preventing erroneous
58 termination of their natural relationship and the state cannot presume that a child and the child's
59 parents are adversaries.
60 [(1) (a)] (c) [Courts have recognized a general presumption that it] It is in the best
61 interest and welfare of a child to be raised under the care and supervision of his natural parents.
62 A child's need for a normal family life in a permanent home, and for positive, nurturing family
63 relationships will usually best be met by his natural parents. Additionally, the integrity of the
64 family unit, and the right of parents to conceive and raise their children have found protection
65 in the due process clause of the Fourteenth Amendment to the United States Constitution. The
66 right of a fit, competent parent to raise his child without undue government interference is a
67 fundamental liberty interest that has long been protected by the laws and Constitution of this
68 state and of the United States.
69 [(b)] (d) It is the public policy of this state that parents retain the fundamental right and
70 duty to exercise primary control over the care, supervision, upbringing, and education of their
71 children [who are in their custody].
72 (e) Subsections (2) through (7) and all portions of the Utah Code that relate to child
73 protection shall be interpreted and applied consistent with Subsection (1).
74 (2) It is also the public policy of this state that children have the right to protection
75 from abuse and neglect, and that the state retains a compelling interest in investigating,
76 prosecuting, and punishing abuse and neglect, as defined in this chapter, and in Title 78,
77 Chapter 3a, Juvenile Courts. Therefore, [as a counterweight to parental rights,] the state, as
78 parens patriae, has an interest in and responsibility to protect children whose parents abuse
79 them or do not adequately provide for their welfare. There [are] may be circumstances where a
80 parent's conduct or condition is a substantial departure from the norm and the parent is unable
81 or unwilling to render safe and proper parental care and protection. Under those circumstances,
82 the state may take action for the welfare and protection of the parent's children [is the
83 consideration of paramount importance].
84 (3) When the division intervenes on behalf of an abused, neglected, or dependent child,
85 it shall take into account the child's need for protection from immediate harm. Throughout its
86 involvement, the division shall utilize the least intrusive and least restrictive means available to
87 protect a child, in an effort to ensure that children are brought up in stable, permanent families,

88 rather than in temporary foster placements under the supervision of the state.
89 (4) When circumstances within the family pose a threat to the child's immediate safety
90 or welfare, the [state's interest in the child's welfare is paramount to the rights of a parent. The]
91 division may obtain custody of the child for a planned period and place him in a safe
92 environment, in accordance with the requirements of Title 78, Chapter 3a, Part 3, Abuse,
93 Neglect, and Dependency Proceedings.
94 (5) In determining and making "reasonable efforts" with regard to a child, pursuant to
95 the provisions of Section 62A-4a-203 [and keeping with the presumptions described in
96 Subsection (1)], both the division's and the court's paramount concern shall be the child's
97 health, safety, and welfare. The desires of a parent for the parent's child shall be given full and
98 serious consideration by the division and the court.
99 (6) In cases where actual sexual abuse, abandonment, or serious physical abuse or
100 neglect are [involved] established, the state has no duty to make "reasonable efforts" or to, in
101 any other way, attempt to maintain a child in his home, provide reunification services, or to
102 attempt to rehabilitate the offending parent or parents. This Subsection (6) does not exempt the
103 division from providing court-ordered services.
104 (7) (a) It is the division's obligation, under federal law, to achieve permanency for
105 children who are abused, neglected, or dependent. If the use or continuation of "reasonable
106 efforts," as described in Subsections (5) and (6), is determined to be inconsistent with the
107 permanency plan for a child, then measures shall be taken, in a timely manner, to place the
108 child in accordance with the permanency plan, and to complete whatever steps are necessary to
109 finalize the permanent placement of the child.
110 (b) If, because of his conduct or condition, a parent is determined to be unfit or
111 incompetent based on the grounds for termination of parental rights described in Title 78,
112 Chapter 3a, Part 4, Termination of Parental Rights Act, the welfare and best interest of the
113 child is of paramount importance, and shall govern in determining whether that parent's rights
114 should be terminated.
115 Section 2. Section 78-3a-102 is amended to read:
116 78-3a-102. Establishment of juvenile court -- Organization and status of court --
117 Purpose.
118 (1) There is established for the state a juvenile court.

119 (2) The juvenile court is a court of record. It shall have a seal, and its judges, clerks,
120 and referees have the power to administer oaths and affirmations.
121 (3) The juvenile court is of equal status with the district courts of the state.
122 (4) The juvenile court is established as a forum for the resolution of all matters
123 properly brought before it, consistent with applicable constitutional and statutory requirements
124 of due process.
125 (5) The purpose of the court under this chapter is to:
126 (a) promote public safety and individual accountability by the imposition of
127 appropriate sanctions on persons who have committed acts in violation of law;
128 (b) order appropriate measures to promote guidance and control, preferably in the
129 minor's own home, as an aid in the prevention of future unlawful conduct and the development
130 of responsible citizenship;
131 (c) where appropriate, order rehabilitation, reeducation, and treatment for persons who
132 have committed acts bringing them within the court's jurisdiction;
133 (d) adjudicate matters that relate to minors who are beyond parental or adult control
134 and to establish appropriate authority over these minors by means of placement and control
135 orders;
136 (e) adjudicate matters that relate to abused, neglected, and dependent minors and to
137 provide care and protection for these minors by placement, protection, and custody orders;
138 (f) remove a minor from parental custody only where the minor's safety or welfare, or
139 the public safety, may not otherwise be adequately safeguarded; and
140 (g) consistent with the ends of justice, [strive to] act in the best interests of the
141 [minor's] minor in all cases and [attempt to] preserve and strengthen family ties [where
142 possible].
143 Section 3. Section 78-3a-912 is amended to read:
144 78-3a-912. Appointment of attorney guardian ad litem -- Right of refusal --
145 Duties and responsibilities -- Training -- Trained staff and court-appointed special
146 advocate volunteers -- Costs -- Immunity -- Annual report.
147 (1) (a) The court may appoint an attorney guardian ad litem to represent the best
148 interest of a minor involved in any case before the court and shall consider [only] the best
149 interest of a minor, consistent with the provisions of Section 62A-4a-201 , in determining

150 whether to appoint a guardian ad litem.
151 (b) In all cases where an attorney guardian ad litem is appointed, the court shall make a
152 finding that establishes the necessity of the appointment.
153 (2) [An] If appointed, an attorney guardian ad litem shall represent the best interest of
154 each minor who may become the subject of a petition alleging abuse, neglect, or dependency,
155 from the date the minor is removed from the minor's home by the division, or the date the
156 petition is filed, whichever occurs earlier.
157 (3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad
158 litem, shall:
159 (a) represent the best interest of the minor in all proceedings;
160 (b) be trained in applicable statutory, regulatory, and case law, and in accordance with
161 the United States Department of Justice National Court Appointed Special Advocate
162 Association guidelines, prior to representing any minor before the court;
163 (c) conduct or supervise an independent investigation in order to obtain first-hand, a
164 clear understanding of the situation and needs of the child;
165 (d) (i) personally meet with the minor;
166 (ii) personally interview the minor if the minor is old enough to communicate;
167 (iii) determine the minor's goals and concerns regarding placement; and
168 (iv) personally assess or supervise an assessment of the appropriateness and safety of
169 the minor's environment in each placement;
170 (e) file written motions, responses, or objections at all stages of a proceeding when
171 necessary to protect the best interest of a minor;
172 (f) personally or through a trained volunteer, paralegal, or other trained staff, attend all
173 administrative and foster care citizen review board hearings pertaining to the minor's case;
174 (g) participate in all appeals unless excused by order of the court;
175 (h) be familiar with local experts who can provide consultation and testimony
176 regarding the reasonableness and appropriateness of efforts made by the Division of Child and
177 Family Services to maintain a minor in the minor's home or to reunify a minor with the minor's
178 parent;
179 (i) to the extent possible, and unless it would be detrimental to the minor, personally or
180 through a trained volunteer, paralegal, or other trained staff, keep the minor advised of the

181 status of the minor's case, all court and administrative proceedings, discussions, and proposals
182 made by other parties, court action, and psychiatric, medical, or other treatment or diagnostic
183 services that are to be provided to the minor;
184 (j) review proposed orders for, and as requested by the court, prepare proposed orders
185 with clear and specific directions regarding services, treatment, and evaluation, assessment, and
186 protection of the minor and the minor's family; and
187 (k) personally or through a trained volunteer, paralegal, or other trained staff, monitor
188 implementation of a minor's treatment plan and any dispositional orders to determine whether
189 services ordered by the court are actually provided, are provided in a timely manner, and
190 attempt to assess whether they are accomplishing their intended goal.
191 (4) (a) An attorney guardian ad litem may use trained volunteers, in accordance with
192 Title 67, Chapter 20, Volunteer Government Workers Act, trained paralegals, and other trained
193 staff to assist in investigation and preparation of information regarding the cases of individual
194 minors before the court. An attorney guardian ad litem may not, however, delegate the
195 attorney's responsibilities described in Subsection (3).
196 (b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained
197 in and follow, at a minimum, the guidelines established by the United States Department of
198 Justice Court Appointed Special Advocate Association.
199 (c) The court may use volunteers trained in accordance with the requirements of
200 Subsection (4)(b) to assist in investigation and preparation of information regarding the cases
201 of individual minors within the jurisdiction.
202 (d) When possible and appropriate, the court may use a volunteer who is a peer of the
203 minor appearing before the court, in order to provide assistance to that minor, under the
204 supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or
205 other trained staff.
206 (5) (a) The attorney guardian ad litem shall continue to represent the best interest of the
207 minor until released from duties by the court.
208 (b) The appointment of the attorney guardian ad litem may be terminated at any stage
209 of the proceeding upon motion of:
210 (i) the court; or
211 (ii) any party to the proceeding, as approved by the court.

212 (6) (a) The juvenile court is responsible for all costs resulting from the appointment of
213 an attorney guardian ad litem and the costs of volunteer, paralegal, and other staff appointment
214 and training, and shall use funds appropriated by the Legislature for the guardian ad litem
215 program to cover those costs.
216 (b) (i) When the court appoints an attorney guardian ad litem under this section, the
217 court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and volunteer
218 expenses against the minor's parents, parent, or legal guardian in a proportion that the court
219 determines to be just and appropriate.
220 (ii) The court may not assess those fees or costs against a legal guardian, when that
221 guardian is the state, or against a parent who is found to be impecunious. If a person claims to
222 be impecunious, the court shall require of that person an affidavit of impecuniosity as provided
223 in Section 78-7-36 and the court shall follow the procedures and make the determinations as
224 provided in Section [ 78-7-36 ] 78-7-37 .
225 (7) An attorney guardian ad litem appointed under this section, when serving in the
226 scope of the attorney guardian ad litem's duties as guardian ad litem is considered an employee
227 of the state for purposes of indemnification under Title 63, Chapter 30, Utah Governmental
228 Immunity Act.
229 (8) (a) An attorney guardian ad litem shall represent the best interest of a minor. If the
230 minor's wishes differ from the attorney's determination of the minor's best interest, the attorney
231 guardian ad litem shall communicate the minor's wishes to the court in addition to presenting
232 the attorney's determination of the minor's best interest. A difference between the minor's
233 wishes and the attorney's determination of best interest may not be considered a conflict of
234 interest for the attorney.
235 (b) The court may appoint one attorney guardian ad litem to represent the best interests
236 of more than one minor child of a marriage.
237 (9) An attorney guardian ad litem shall be provided access to all Division of Child and
238 Family Services records regarding the minor at issue and the minor's family.
239 (10) An attorney guardian ad litem shall maintain current and accurate records
240 regarding the number of times the attorney has had contact with each minor and the actions the
241 attorney has taken in representation of the minor's best interest.
242 (11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian

243 ad litem are confidential and may not be released or made public upon subpoena, search
244 warrant, discovery proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2,
245 Government Records Access and Management Act.
246 (b) All records of an attorney guardian ad litem are subject to legislative subpoena,
247 under Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the
248 Legislature.
249 (c) Records released in accordance with Subsection (11)(b) shall be maintained as
250 confidential by the Legislature. The Office of the Legislative Auditor General may, however,
251 include summary data and nonidentifying information in its audits and reports to the
252 Legislature.
253 (d) Because of the unique role of an attorney guardian ad litem described in Subsection
254 (8), and the state's role and responsibility to provide a guardian ad litem program and, as parens
255 patriae, to protect minors, Subsection (11)(b) constitutes an exception to Rules of Professional
256 Conduct, Rule 1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client privilege does not
257 bar access to the records of an attorney guardian ad litem by the Legislature, through legislative
258 subpoena.
259 (e) The Office of the Guardian Ad Litem shall present an annual report to the Child
260 Welfare Legislative Oversight Panel detailing:
261 (i) the development, policy, and management of the statewide guardian ad litem
262 program;
263 (ii) the training and evaluation of attorney guardians ad litem and volunteers; and
264 (iii) the number of children served by the Office of the Guardian Ad Litem.