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This document includes Senate Committee Amendments incorporated into the bill on Tue, Feb 1, 2005 at 11:13 AM by rday. --> This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Fri, Feb 11, 2005 at 3:09 PM by rday. -->
6 LONG TITLE
7 General Description:
8 This bill amends provisions of the Human Services Code, the Judicial Code, and
9 provisions relating to child welfare.
10 Highlighted Provisions:
11 This bill:
12 . replaces the term "treatment plan" with the term "child and family plan";
13 . clarifies access to certain protected and confidential records;
14 . provides that the inability to identify or locate an alleged perpetrator of child abuse
15 may not be used by the division as a basis for determining that a report is
17 . provides that a child and family plan may only include requirements that:
18 . address findings made by the court; or
19 . are requested or approved by a parent or guardian of the child S. , and are agreed
19a to by the division and the guardian ad litem .S ;
20 . addresses the circumstances under which parent-time may be denied; and
21 . makes technical changes.
22 Monies Appropriated in this Bill:
24 Other Special Clauses:
26 Utah Code Sections Affected:
29 62A-4a-116, as last amended by Chapters 86 and 201, Laws of Utah 2004
30 62A-4a-202.3, as last amended by Chapter 124, Laws of Utah 2004
31 62A-4a-203.5, as enacted by Chapter 274, Laws of Utah 1998
32 62A-4a-205, as last amended by Chapter 356, Laws of Utah 2004
33 78-3a-311, as last amended by Chapter 356, Laws of Utah 2004
34 78-3a-311.5, as enacted by Chapter 246, Laws of Utah 2002
35 78-3a-312, as last amended by Chapters 168 and 306, Laws of Utah 2002
36 78-3a-313.5, as enacted by Chapter 274, Laws of Utah 1998
37 78-3a-407, as last amended by Chapter 246, Laws of Utah 2002
38 78-3a-912, as last amended by Chapter 356, Laws of Utah 2004
40 Be it enacted by the Legislature of the state of Utah:
41 Section 1. Section 53B-8d-102 is amended to read:
42 53B-8d-102. Definitions.
43 As used in this chapter:
44 (1) "Division" means the Division of Child and Family Services.
45 (2) "Long-term foster care" means an individual who remains in the custody of the
46 division, whether or not the individual resides:
47 (a) with licensed foster parents; or
48 (b) in independent living arrangements under the supervision of the division.
49 (3) "State institution of higher education" means:
50 (a) those institutions designated in Section 53B-1-102 ; and
51 (b) any public institution that offers postsecondary education in consideration of the
52 payment of tuition or fees for the attainment of educational or vocational objectives leading to
53 a degree or certificate, including:
54 (i) business schools[
55 (ii) technical schools[
56 (iii) applied technology centers[
57 (iv) trade schools[
58 (v) institutions offering related apprenticeship programs.
60 (5) "Ward of the state" means an individual:
61 (a) who is:
62 (i) at least 17 years of age; and
63 (ii) not older than 26 years of age;
64 (b) who had a permanency goal in the individual's [
66 the custody of the division; and
67 (c) for whom the custody of the division was not terminated as a result of adoption.
68 Section 2. Section 62A-4a-116 is amended to read:
69 62A-4a-116. Management Information System -- Requirements -- Contents --
70 Purpose -- Access.
71 (1) (a) The division shall develop and implement a Management Information System
72 that meets the requirements of this section and the requirements of federal law and regulation.
73 (b) The information and records contained in the Management Information System:
74 (i) are protected records under Title 63, Chapter 2, Government Records Access and
75 Management Act[
76 (ii) except [
79 a person with statutory authorization under Title 63, Chapter 2, Government Records Access
80 and Management Act to review [
81 the information and records described in this Subsection (1)(b).
82 (c) Notwithstanding Subsection (1)(b)(ii), the information and records described in
83 Subsection (1)(b)(ii) are available to a person:
84 (i) as provided under Subsection (6) or Section 62A-4a-116.2 ; or
85 (ii) who has specific statutory authorization to access the [
86 records for the purpose of assisting the state with state and federal requirements to maintain
87 information solely for the purpose of protecting minors and providing services to families in
89 (2) With regard to all child welfare cases, the Management Information System shall
91 of foster parent licensure and monitoring, with a complete history of each child in that worker's
92 caseload, including [
93 (a) a record of all past action taken by the division with regard to that child and the
94 child's siblings;
95 (b) the complete case history and all reports and information in the control or keeping
96 of the division regarding that child and the child's siblings;
97 (c) the number of times the child has been in the custody of the division;
98 (d) the cumulative period of time the child has been in the custody of the division;
99 (e) a record of all reports of abuse or neglect received by the division with regard to
100 that child's parent, parents, or guardian including:
101 (i) for each report, documentation of the:
102 (A) latest status; or [
103 (B) final outcome or determination [
104 (ii) information that indicates whether each report was found to be:
105 (A) supported[
106 (B) unsupported[
107 (C) substantiated by a juvenile court[
108 (D) unsubstantiated by a juvenile court[
109 (E) without merit;
110 (f) the number of times the child's parent or parents [
111 and family plan; and
112 (g) the number of different caseworkers who have been assigned to that child in the
114 (3) The division's Management Information System shall [
115 (a) contain all key elements of each family's current [
117 (i) the dates and number of times the plan has been administratively or judicially
119 (ii) the number of times the parent or parents have failed that [
120 family plan[
122 effect; and
123 (b) alert caseworkers regarding deadlines for completion of and compliance with
124 policy, including [
125 (4) With regard to all child protective services cases, the Management Information
126 System shall [
127 (a) monitor the compliance of each case with:
128 (i) division rule and policy[
129 (ii) state law[
130 (iii) federal law and regulation; and
131 (b) include the age and date of birth of the alleged perpetrator at the time the abuse or
132 neglect is alleged to have occurred, in order to ensure accuracy regarding the identification of
133 the alleged perpetrator.
134 (5) Except as provided in Subsection (6) regarding contract providers and Section
135 62A-4a-116.2 regarding limited access to the Licensing Information System, all information
136 contained in the division's Management Information System is available to the department,
137 upon the approval of the executive director, on a need-to-know basis.
138 (6) (a) [
139 providers, court clerks designated by the Administrative Office of the Courts, and the Office of
140 the Guardian Ad Litem to have limited access to the Management Information System.
141 (b) A division contract provider has access only to information about [
142 a person who is currently receiving services from that specific contract provider.
143 (c) (i) Designated court clerks [
144 comply with Subsection 78-3h-102 (2).
145 (ii) The Office of the Guardian Ad Litem [
147 (A) relates to children and families where the Office of the Guardian Ad Litem [
150 (B) except as provided in Subsection (6)(d), is entered into the [
151 Information System on or after July 1, 2004[
153 shall have access to all child abuse and neglect referrals about children and families where the
154 office has been appointed by a court to represent the interests of the children, regardless of the
155 date that the information is entered into the Management Information System.
157 Guardian Ad Litem who requests access to information contained in the Management
158 Information System shall:
159 (i) take all necessary precautions to safeguard the security of the information contained
160 in the Management Information System;
161 (ii) train its employees regarding:
162 (A) requirements for protecting the information contained in the Management
163 Information System as required by this chapter and under Title 63, Chapter 2, Government
164 Records Access and Management Act[
165 (B) the criminal penalties under Sections 62A-4a-412 and 63-2-801 for improper
166 release of information; and
167 (iii) monitor its employees to ensure that they protect the information contained in the
168 Management Information System as required by law.
170 providers comply with the requirements of this Subsection (6).
171 (7) The division shall take all necessary precautions, including password protection and
172 other appropriate and available technological techniques, to prevent unauthorized access to or
173 release of information contained in the Management Information System.
174 Section 3. Section 62A-4a-202.3 is amended to read:
175 62A-4a-202.3. Investigation -- Supported or unsupported reports -- Child in
176 protective custody.
177 (1) When a child is taken into protective custody in accordance with Section
178 62A-4a-202.1 , 78-3a-106 , or 78-3a-301 , or when the division takes any other action which
179 would require a shelter hearing under Subsection 78-3a-306 (1), the division shall immediately
180 initiate an investigation of the:
181 (a) circumstances of the minor; and [
182 (b) grounds upon which the decision to place the minor into protective custody was
184 (2) The division's investigation shall [
185 conform to reasonable professional standards, and shall include:
186 (a) a search for and review of any records of past reports of abuse or neglect involving:
187 (i) the same child[
188 (ii) any sibling or other child residing in [
189 child; and
190 (iii) the alleged perpetrator;
191 (b) with regard to a child who is five years of age or older, a personal interview with
192 the child:
193 (i) outside of the presence of the alleged perpetrator[
194 (ii) conducted in accordance with the requirements of Subsection (7);
195 (c) if [
196 with at least one of the child's parents or guardian;
197 (d) an interview with the person who reported the abuse, unless [
198 was made anonymously;
199 (e) where possible and appropriate, interviews with other third parties who have had
200 direct contact with the child, including:
201 (i) school personnel; and
202 (ii) the child's health care provider;
203 (f) an unscheduled visit to the child's home, unless:
204 (i) the division has reasonable cause to believe that the reported abuse was committed
205 by a person who:
206 (A) is not the child's parent; and
207 (B) does not:
210 (ii) an unscheduled visit is not necessary to obtain evidence for the investigation; and
211 (g) if appropriate and indicated in any case alleging physical injury, sexual abuse, or
212 failure to meet the child's medical needs, a medical examination[
213 obtained no later than 24 hours after the child [
215 conducting an additional interview, if:
216 (a) law enforcement [
217 (i) previously conducted a timely and thorough investigation regarding the alleged
218 abuse, neglect, or dependency; and [
219 (ii) produced a written report;
220 (b) [
221 interviews required by Subsection (2); and
222 (c) the division finds that an additional interview is not in the best interest of the child.
223 (4) (a) The division's determination of whether a report is supported or unsupported
224 may be based on the child's statements alone.
225 (b) Inability to identify or locate the perpetrator may not be used by the division as a
226 basis for:
227 (i) determining that a report is [
228 (ii) closing the case.
229 (c) The division may not determine a case to be unsupported or identify a case as
230 unsupported solely because the perpetrator was an out-of-home perpetrator.
231 (d) Decisions regarding whether a report is supported, unsupported, or without merit
232 shall be based on the facts of the case at the time the report was made.
233 (5) The division should maintain protective custody of the child if it finds that one or
234 more of the following conditions exist:
235 (a) the minor [
236 who is able and willing to provide safe and appropriate care for the minor;
237 (b) (i) shelter of the minor is a matter of necessity for the protection of the minor; and
238 (ii) there are no reasonable means by which the minor can be protected in:
239 (A) the minor's home; or
240 (B) the home of a responsible relative;
241 (c) there is substantial evidence that the parent or guardian is likely to flee the
242 jurisdiction of the court; or
243 (d) the minor has left a previously court ordered placement.
244 (6) (a) Within 24 hours after receipt of a child into protective custody, excluding
246 (i) convene a child protection team to review the circumstances regarding removal of
247 the child from the child's home or school; and
248 (ii) prepare the testimony and evidence that will be required of the division at the
249 shelter hearing, in accordance with Section 78-3a-306 .
250 (b) [
251 shall include:
252 (i) the caseworker assigned to the case [
253 (ii) the caseworker who made the decision to remove the child;
255 attends school;
258 established within the county where the child resides;
260 familiar with the child's circumstances; and
262 coordinator and chair.
263 (c) At the 24-hour meeting, the division shall have available for review and
264 consideration the complete child protective services and foster care history of the child and the
265 child's parents and siblings.
266 (7) (a) After receipt of a child into protective custody and prior to the adjudication
267 hearing, all investigative interviews with the child that are initiated by the division shall be:
268 (i) audio or video taped[
269 (ii) except as provided in Subsection (7)(b), conducted with a support person of the
270 child's choice present. [
271 (b) Notwithstanding Subsection (7)(a)(ii), the support person who is present for an
272 interview of a child may not be an alleged perpetrator.
273 (8) The division shall cooperate with law enforcement investigations regarding the
274 alleged perpetrator.
275 (9) The division may not close an investigation solely on the grounds that the division
277 the child and family members[
278 (a) visiting the home at times other than normal work hours;
279 (b) contacting local schools;
280 (c) contacting local, county, and state law enforcement agencies; and
281 (d) checking public assistance records.
282 Section 4. Section 62A-4a-203.5 is amended to read:
283 62A-4a-203.5. Mandatory petition for termination of parental rights.
284 (1) For purposes of this section, "abandoned infant" means a child who is 12 months of
285 age or younger whose parent or parents:
286 (a) although having legal custody of the child, fail to maintain physical custody of the
287 child without making arrangements for the care of the child;
288 (b) have failed to maintain physical custody, and have failed to exhibit the normal
289 interest of a natural parent without just cause; or
290 (c) are unwilling to have physical custody of the child.
291 (2) Except as provided in Subsection (3), notwithstanding any other provision of this
292 chapter or of Title 78, Chapter 3a, Juvenile Court Act of 1996, the division shall file a petition
293 for termination of parental rights with regard to:
294 (a) an abandoned infant; or
295 (b) a parent, whenever a court has determined that the parent has:
296 (i) committed murder or child abuse homicide of another child of that parent;
297 (ii) committed manslaughter of another child of that parent;
298 (iii) aided, abetted, attempted, conspired, or solicited to commit murder, child abuse
299 homicide, or manslaughter against another child of that parent; or
300 (iv) committed a felony assault or abuse that has resulted in serious physical injury to
301 another child of that parent, or to the other parent of that child.
302 (3) The division is not required to file a petition for termination of parental rights under
303 Subsection (2) if:
304 (a) the child is being cared for by a relative;
305 (b) the division has:
306 (i) documented in the child's [
308 interest; and
309 (ii) made that [
310 (c) (i) the court has previously determined, in accordance with the provisions and
311 limitations of Sections 62A-4a-201 , 62A-4a-203 , 78-3a-306 , and 78-3a-311 , that reasonable
312 efforts to reunify the child with [
313 (ii) the division has not provided, within the time period specified in the [
314 child and family plan, services that had been determined to be necessary for the safe return of
315 the child.
316 Section 5. Section 62A-4a-205 is amended to read:
317 62A-4a-205. Child and family plan -- Parent-time.
318 (1) No more than 45 days after a child enters the temporary custody of the division, the
319 child's [
320 (2) (a) The division shall use an interdisciplinary team approach in developing each
322 (b) The interdisciplinary team described in Subsection (2)(a) shall include S. [
323 limited to, [
324 (i) mental health[
325 (ii) education[
326 (iii) if appropriate, [
327 (3) (a) The division shall involve all of the following in the development of a child's
329 (i) both of the child's natural parents, unless the whereabouts of a parent are unknown;
330 (ii) the child;
331 (iii) the child's foster parents; and
332 (iv) [
333 (b) In relation to all information considered by the division in developing a [
334 child and family plan, additional weight and attention shall be given to the input of the child's
335 natural and foster parents upon their involvement pursuant to Subsections (3)(a)(i) and (iii).
336 (4) A copy of the [
337 completion, or as soon as reasonably possible thereafter, be provided to the:
339 (b) child's natural parents; and
340 (c) child's foster parents [
342 (5) Each [
343 (a) specifically provide for the safety of the child, in accordance with federal law[
345 (b) clearly define what actions or precautions will, or may be, necessary to provide for
346 the health, safety, protection, and welfare of the child.
347 (6) The child and family plan shall set forth, with specificity, at least the following:
348 (a) the reason the child entered [
349 into the custody of the division;
350 (b) documentation of the:
351 (i) reasonable efforts made to prevent placement[
352 in the custody of the division; or
353 (ii) emergency situation that existed and that prevented the reasonable efforts
354 described in Subsection (6)(b)(i), from being made;
358 of that goal;
360 (i) specifically what the parents must do in order to enable the child to be returned
362 (ii) specifically how [
364 (iii) how [
367 (g) the name of the person who will provide for and be responsible for case
370 and the child;
372 diagnosed mental health needs of the child [
373 (j) if residential treatment rather than a foster home is the proposed placement, a
374 requirement for a specialized assessment of the child's health needs including an assessment of
375 mental illness and behavior and conduct disorders; and
378 (7) (a) Each [
379 child's family, rather than general.
380 (b) The division shall train its workers to develop [
381 that comply with:
382 (i) federal mandates; and
383 (ii) the specific needs of the particular child and the child's family.
385 and contain specific time frames.
387 problems that:
388 (i) keep [
389 (ii) keep [
391 disruption to the normal activities of the child's family, including employment and school.
392 (f) In particular, the time, place, and amount of services, hearings, and other
393 requirements ordered by the court in the child and family plan shall be designed, as much as
394 practicable, to help the child's parents maintain or obtain employment.
396 shall be kept informed of and supported to participate in important meetings and procedures
397 related to the child's placement.
398 (h) For purposes of Subsection (7)(d), a child and family plan may only include
399 requirements that:
401 (ii) S. (A) .S are requested or consented to by a parent or guardian of the child S. [
401a (B) are agreed to by the division and the guardian ad litem. .S
402 (8) [
403 three years of age or younger, if the goal is not to return the child home, the permanency plan
404 for that child shall be adoption. [
405 (b) Notwithstanding Subsection (8)(a), if the division documents to the court that there
406 is a compelling reason that adoption, reunification, guardianship, and kinship placement are not
407 in the child's best interest, the court may order another planned permanent living arrangement
408 in accordance with federal law.
409 (9) (a) Except as provided in Subsection (9)(b), parent-time may only be denied by a
410 court order issued pursuant to Subsections 78-3a-311 (2)(a)(ii) and (b).
411 (b) Notwithstanding Subsection (9)(a), the person designated by the division or a court
412 to supervise a parent-time session may deny parent-time for that session if the supervising
413 person determines that, based on the parent's condition, it is necessary to deny parent-time in
414 order to:
415 (i) protect the physical safety of the child;
416 (ii) protect the life of the child; or
417 (iii) S. consistent with Subsection (9)(c), .S prevent the child from S. [
417b (c) In determining whether the condition of the parent described in Subsection
417c (9)(b) will traumatize a child, the person supervising the parent-time session shall consider the
417d impact that the parent's condition will have on the child in light of:
417e (i) the child's fear of the parent; and
417f (ii) the nature of the alleged abuse or neglect. .S
418 Section 6. Section 78-3a-311 is amended to read:
419 78-3a-311. Dispositional hearing -- Reunification services -- Exceptions.
420 (1) The court may:
421 (a) make any of the dispositions described in Section 78-3a-118 [
422 (b) place the [
423 (i) individual; or
424 (ii) public or private entity or agency[
425 (c) order:
427 (ii) family preservation[
428 (iii) medical or mental health treatment[
429 (iv) other services.
430 (2) (a) (i) Whenever the court orders continued removal at the dispositional hearing,
432 division, the court shall first:
433 (A) establish a primary permanency goal for the minor; and
434 (B) determine whether, in view of the primary permanency goal, reunification services
435 are appropriate for the [
437 (ii) [
438 services are appropriate for the [
439 provide for reasonable parent-time with the parent or parents from whose custody the [
440 minor was removed, unless parent-time is not in the best interest of the [
441 (iii) (A) In cases where obvious sexual abuse, abandonment, or serious physical abuse
442 or neglect are involved, neither the division nor the court has any duty to make "reasonable
443 efforts" or to, in any other way, attempt to provide reunification services, or to attempt to
444 rehabilitate the offending parent or parents.
445 (B) In all cases, the [
446 paramount concern in determining whether reasonable efforts to reunify should be made.
447 (b) (i) For purposes of Subsection (2)(a)(ii), parent-time is in the best interests of a
448 minor unless the court makes a finding that it is necessary to deny parent-time in order to:
449 (A) protect the physical safety of the minor;
450 (B) protect the life of the minor; or
451 (C) prevent the minor from S. [
451a contact with the parent due to the minor's fear of the parent in light of the nature of the
451b alleged abuse or neglect .S .
452 (ii) Notwithstanding Subsection (2)(a)(ii), a court may not deny parent-time based
453 solely on a parent's failure to:
454 (A) prove that the parent has not used legal or illegal substances; or
455 (B) comply with an aspect of the child and family plan that is ordered by the court.
457 concurrent permanency goal[
458 (A) a representative list of the conditions under which the primary permanency goal
459 will be abandoned in favor of the concurrent permanency goal; and
460 (B) an explanation of the effect of abandoning or modifying the primary permanency
463 78-3a-312 (1)(b) within 30 days if something other than reunification is initially established as a
465 (iii) (A) The court may amend a [
466 establishment of a final permanency plan under Section 78-3a-312 .
467 (B) The court is not limited to the terms of the concurrent permanency goal in the event
468 that the primary permanency goal is abandoned.
469 (C) If, at anytime, the court determines that reunification is no longer a [
470 primary permanency goal, the court shall conduct a permanency hearing in accordance with
471 Section 78-3a-312 [
472 (I) 30 days from the day on which the court makes the determination described in this
473 Subsection (2)(c)(iii)(C); or
474 (II) 12 months from the [
475 first removed from the minor's home.
477 shall order that the division make reasonable efforts to provide services to the [
478 and the [
479 specified period of time.
480 (B) In providing [
481 minor's health, safety, and welfare shall be the division's paramount concern, and the court
482 shall so order.
483 (ii) The court shall:
484 (A) determine whether the services offered or provided by the division under the
487 (B) determine and define the responsibilities of the parent under the [
488 and family plan in accordance with [
490 (C) identify on the record the responsibilities described in Subsection (2)(d)(ii)(B), for
491 the purpose of assisting in any future determination regarding the provision of reasonable
492 efforts, in accordance with state and federal law.
494 date that the [
495 (B) Nothing in this section may be construed to entitle any parent to an entire 12
496 months of reunification services.
497 (iv) If reunification services [
498 services at any time.
499 (v) If, at any time, continuation of reasonable efforts to reunify a [
500 determined to be inconsistent with the final permanency plan for the [
501 pursuant to Subsection 78-3a-312 , then measures shall be taken, in a timely manner, to:
502 (A) place the [
503 (B) complete whatever steps are necessary to finalize the permanent placement of the
506 described in Subsection (2)[
508 shall be conducted by the court in accordance with Section 78-3a-312 at the expiration of the
509 time period for reunification services.
510 (ii) The permanency hearing shall be held no later than 12 months after the original
511 removal of the [
513 hearing shall be conducted within 30 days, in accordance with Section 78-3a-312 .
515 the [
516 (i) hold a permanency hearing eight months after the date of the initial removal,
517 pursuant to Section 78-3a-312 ; and
518 (ii) order the discontinuance of those services after eight months from the initial
519 removal of the [
520 efforts to comply with the [
522 parents [
525 (i) the court shall terminate reunification services[
526 (ii) the division shall petition the court for termination of parental rights.
527 (3) (a) Because of the state's interest in and responsibility to protect and provide
528 permanency for [
529 finds that a parent's interest in receiving reunification services is limited.
530 (b) The court may determine that:
531 (i) efforts to reunify a [
532 or appropriate, based on the individual circumstances[
533 (ii) reunification services should not be provided.
534 (c) In determining "reasonable efforts" to be made with respect to a [
535 in making "reasonable efforts," the [
536 paramount concern.
538 a parent if the court finds, by clear and convincing evidence, that any of the following
539 circumstances exist:
541 indicating that a reasonably diligent search has failed to locate the parent;
543 such magnitude that it renders [
548 physical or sexual abuse, [
549 (I) was removed from the custody of [
550 (II) was subsequently returned to the custody of [
551 (III) is being removed due to additional physical or sexual abuse;
553 (I) caused the death of another [
554 (II) committed, aided, abetted, attempted, conspired, or solicited to commit:
556 (Bb) child abuse homicide;
558 by the parent, if the parent knew or reasonably should have known that the person was abusing
559 the minor;
561 by the parent, and the court finds that it would not benefit the [
562 reunification services with the offending parent;
566 least two previous occasions and reunification services were offered or provided to the family
567 at those times;
569 longer; or
571 efforts or services.
573 (ii) The finding under Subsection (3)(d)(i)(B) shall be based on competent evidence
574 from mental health professionals establishing that, even with the provision of services, the
575 parent is not likely to be capable of adequately caring for the minor within 12 months from the
576 day on which the court finding is made.
577 (4) In determining whether reunification services are appropriate, the court shall take
578 into consideration:
579 (a) failure of the parent to respond to previous services or comply with [
581 (b) the fact that the [
582 of drugs or alcohol[
583 (c) any history of violent behavior[
584 (d) whether a parent continues to live with an individual who abused the [
588 (f) testimony by a competent professional that the parent's behavior is unlikely to be
591 (g) whether the parent has expressed an interest in reunification with the [
593 (5) (a) If reunification services are not ordered pursuant to Subsection (3)(a), and the
594 whereabouts of a parent become known within six months of the out-of-home placement of the
595 minor, the court may order the division to provide reunification services.
596 (b) The time limits described in Subsection (2)[
597 parent's absence.
598 (6) (a) If a parent is incarcerated or institutionalized, the court shall order reasonable
599 services unless it determines that those services would be detrimental to the minor. [
601 (b) In making the determination described in Subsection (6)(a), the court shall
603 (i) the age of the [
604 (ii) the degree of parent-child bonding[
605 (iii) the length of the sentence[
606 (iv) the nature of the treatment[
607 (v) the nature of the crime or illness[
608 (vi) the degree of detriment to the [
609 (vii) for [
610 implementation of family reunification services[
611 (viii) any other appropriate factors.
612 (c) Reunification services for an incarcerated parent are subject to the 12-month
613 limitation imposed in Subsection (2).
614 (d) Reunification services for an institutionalized parent are subject to the 12-month
615 limitation imposed in Subsection (2), unless the court determines that continued reunification
616 services would be in the [
618 Subsections (3)(d)(i)(B) through (J), the court does not order reunification services, a
619 permanency hearing shall be conducted within 30 days, in accordance with Section 78-3a-312 .
620 Section 7. Section 78-3a-311.5 is amended to read:
621 78-3a-311.5. Six-month review hearing -- Court determination regarding
622 reasonable efforts by the Division of Child and Family Services and parental compliance
623 with child and family plan requirements
624 If reunification efforts have been ordered by the court, a hearing shall be held no more
625 than six months after initial removal of a [
626 order for the court to determine whether:
627 (1) the division has provided and is providing "reasonable efforts" to reunify a family,
628 in accordance with the [
629 62A-4a-205 ; and
630 (2) the parent has fulfilled or is fulfilling identified duties and responsibilities in order
631 to comply with the requirements of the [
632 Section 8. Section 78-3a-312 is amended to read:
633 78-3a-312. Permanency hearing -- Final plan -- Petition for termination of
634 parental rights filed -- Hearing on termination of parental rights.
635 (1) (a) When reunification services have been ordered in accordance with Section
636 78-3a-311 , with regard to a [
637 Family Services, a permanency hearing shall be held by the court no later than 12 months after
638 the original removal of the [
639 (b) [
640 ordered at the dispositional hearing, a permanency hearing shall be held within 30 days from
641 the date of the dispositional hearing.
642 (2) (a) If reunification services were ordered by the court in accordance with Section
643 78-3a-311 , the court shall, at the permanency hearing, determine, consistent with Subsection
644 (3,) whether the [
646 (b) If the court finds, by a preponderance of the evidence, that return of the [
647 minor would create a substantial risk of detriment to the [
650 (c) Prima facie evidence that return of the minor to a parent or guardian would create a
651 substantial risk of detriment to the minor is established if the parent or guardian fails to:
652 (i) participate in a court approved child and family plan;
653 (ii) comply with a court approved child and family plan in whole or in part[
654 (iii) meet the goals of a court approved [
658 review and consider:
659 (a) the report prepared by the Division of Child and Family Services[
660 (b) any admissible evidence offered by the [
661 (c) any report prepared by a foster care citizen review board pursuant to Section
662 78-3g-103 [
663 (d) any evidence regarding the efforts or progress demonstrated by the parent[
664 (e) the extent to which the parent cooperated and availed himself of the services
667 court, if a [
668 permanency hearing, the court shall:
669 (i) order termination of reunification services to the parent[
670 (ii) make a final determination regarding whether termination of parental rights,
671 adoption, or permanent custody and guardianship is the most appropriate final plan for the
673 the court pursuant to Section 78-3a-311 [
674 (iii) establish a concurrent plan that identifies the second most appropriate final plan
675 for the minor.
676 (b) If the Division of Child and Family Services documents to the court that there is a
677 compelling reason that adoption, reunification, guardianship, and kinship placement are not in
678 the [
680 (c) If the [
685 services beyond 12 months from the date the [
687 court may extend reunification services for no more than 90 days if [
688 (i) there has been substantial compliance with the [
690 (ii) reunification is probable within that 90-day period[
691 (iii) the extension is in the best interest of the [
692 (e) (i) In no event may any reunification services extend beyond 15 months from the
693 date the [
694 (ii) Delay or failure of a parent to establish paternity or seek custody does not provide a
695 basis for the court to extend services for that parent beyond that 12-month period.
697 (i) enter any additional order that it determines to be in the best interest of the [
698 minor, so long as that order does not conflict with the requirements and provisions of
699 Subsections [
700 (ii) order the division to provide protective supervision or other services to a [
701 minor and the [
704 parental rights, the petition for termination of parental rights shall be filed, and a pretrial held,
705 within 45 calendar days after the permanency hearing.
707 permanency hearing on the basis that continuation of reunification efforts are inconsistent with
708 the permanency needs of the [
709 (b) If the court so determines, it shall order, in accordance with federal law, that:
711 (ii) whatever steps are necessary to finalize the permanent placement of the [
712 minor be completed as quickly as possible.
714 (a) entitle any parent to reunification services for any specified period of time;
715 (b) limit a court's ability to terminate reunification services at any time prior to a
716 permanency hearing; or
717 (c) limit or prohibit the filing of a petition for termination of parental rights by any
718 party, or a hearing on termination of parental rights, at any time prior to a permanency hearing.
720 (8) (a) Subject to Subsection (8)(b), if a petition for termination of parental rights is
721 filed prior to the date scheduled for a permanency hearing, the court may consolidate the
722 hearing on termination of parental rights with the permanency hearing. [
723 (b) For purposes of Subsection (8)(a), if the court consolidates the hearing on
724 termination of parental rights with the permanency hearing[
725 (i) the court shall first make a finding regarding whether reasonable efforts have been
726 made by the Division of Child and Family Services to finalize the permanency goal for the
728 (ii) any reunification services shall be terminated in accordance with the time lines
729 described in Section 78-3a-311 .
730 (c) A decision on [
731 18 months from [
732 the minor's home.
733 Section 9. Section 78-3a-313.5 is amended to read:
734 78-3a-313.5. Mandatory petition for termination of parental rights.
735 (1) For purposes of this section, "abandoned infant" means a [
736 months of age or younger whose parent or parents:
737 (a) although having legal custody of the [
738 of the [
739 (b) have failed to:
740 (i) maintain physical custody[
742 (c) are unwilling to have physical custody of the [
743 (2) Except as provided in Subsection (3), notwithstanding any other provision of this
744 chapter or of Title 62A, Chapter 4a, Child and Family Services, the division shall file a petition
745 for termination of parental rights with regard to:
746 (a) an abandoned infant; or
747 (b) the minor of a parent, whenever a court has determined that the parent has:
748 (i) committed murder or child abuse homicide of another [
749 (ii) committed manslaughter of another [
750 (iii) aided, abetted, attempted, conspired, or solicited to commit murder, child abuse
751 homicide, or manslaughter against another [
752 (iv) committed a felony assault or abuse that [
753 injury to:
754 (A) another [
755 (B) the other parent of [
756 (3) The division is not required to file a petition for termination of parental rights under
757 Subsection (2) if:
758 (a) the [
759 (b) the division has:
760 (i) documented in the [
761 reason for determining that filing a petition for termination of parental rights is not in the
763 (ii) made that [
764 (c) (i) the court has previously determined, in accordance with the provisions and
765 limitations of Sections 62A-4a-201 , 62A-4a-203 , 78-3a-306 , and 78-3a-311 , that reasonable
766 efforts to reunify the [
767 (ii) the division has not provided, within the time period specified in the [
768 child and family plan, services that had been determined to be necessary for the safe return of
769 the [
770 Section 10. Section 78-3a-407 is amended to read:
771 78-3a-407. Grounds for termination of parental rights -- Findings regarding
773 (1) The court may terminate all parental rights with respect to a parent if [
774 finds any one of the following:
775 (a) that the parent has abandoned the [
776 (b) that the parent has neglected or abused the [
777 (c) that the parent is unfit or incompetent;
778 (d) (i) that the [
779 supervision of the court or the division [
780 (ii) that the parent has substantially neglected, wilfully refused, or has been unable or
781 unwilling to remedy the circumstances that cause the [
783 (iii) that there is a substantial likelihood that the parent will not be capable of
784 exercising proper and effective parental care in the near future;
785 (e) failure of parental adjustment, as defined in this chapter;
786 (f) that only token efforts have been made by the parent:
787 (i) to support or communicate with the [
788 (ii) to prevent neglect of the [
789 (iii) to eliminate the risk of serious physical, mental, or emotional abuse of the [
790 minor; or
791 (iv) to avoid being an unfit parent;
792 (g) (i) that the parent has voluntarily relinquished the parent's parental rights to the
794 (ii) that termination is in the [
795 (h) [
796 to live in the [
797 repeatedly refused or failed to give the [
798 (i) the terms and conditions of safe relinquishment of a newborn child have been
799 complied with, pursuant to Title 62A, Chapter 4a, Part 8, Safe Relinquishment of a Newborn
801 (2) The court may not terminate the parental rights of a parent because the parent has
802 failed to complete the requirements of a [
804 directed the division to provide reunification services to a parent, the court must find that the
805 division made reasonable efforts to provide those services before the court may terminate the
806 parent's rights under Subsection (1)(b), (c), (d), (e), (f), or (h).
807 (b) [
808 finding under Subsection (3)(a) before terminating a parent's rights:
809 (i) under Subsection (1)(b) [
811 (ii) if reasonable efforts to provide the services described in Subsection (3)(a) are not
812 required under federal law.
813 Section 11. Section 78-3a-912 is amended to read:
814 78-3a-912. Appointment of attorney guardian ad litem -- Right of refusal --
815 Duties and responsibilities -- Training -- Trained staff and court-appointed special
816 advocate volunteers -- Costs -- Immunity -- Annual report.
817 (1) The court:
818 (a) may appoint an attorney guardian ad litem to represent the best interest of a minor
819 involved in any case before the court; and
820 (b) shall consider only the best interest of a minor in determining whether to appoint a
821 guardian ad litem.
822 (2) An attorney guardian ad litem shall represent the best interest of each minor who
823 may become the subject of a petition alleging abuse, neglect, or dependency, from the [
824 earlier of the day that:
825 (a) the minor is removed from the minor's home by the division[
826 (b) the petition is filed[
827 (3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad
828 litem, shall:
829 (a) represent the best interest of the minor in all proceedings;
830 (b) prior to representing any minor before the court, be trained in:
831 (i) applicable statutory, regulatory, and case law[
832 (ii) accordance with the United States Department of Justice National Court Appointed
833 Special Advocate Association guidelines[
835 clear understanding of the situation and needs of the [
836 (d) (i) personally meet with the minor;
837 (ii) personally interview the minor if the minor is old enough to communicate;
838 (iii) determine the minor's goals and concerns regarding placement; and
839 (iv) personally assess or supervise an assessment of the appropriateness and safety of
840 the minor's environment in each placement;
841 (e) file written motions, responses, or objections at all stages of a proceeding when
842 necessary to protect the best interest of a minor;
843 (f) personally or through a trained volunteer, paralegal, or other trained staff, attend all
844 administrative and foster care citizen review board hearings pertaining to the minor's case;
845 (g) participate in all appeals unless excused by order of the court;
846 (h) be familiar with local experts who can provide consultation and testimony
847 regarding the reasonableness and appropriateness of efforts made by the Division of Child and
848 Family Services to:
849 (i) maintain a minor in the minor's home; or [
850 (ii) reunify a minor with the minor's parent;
851 (i) to the extent possible, and unless it would be detrimental to the minor, personally or
852 through a trained volunteer, paralegal, or other trained staff, keep the minor advised of:
853 (i) the status of the minor's case[
854 (ii) all court and administrative proceedings[
855 (iii) discussions with, and proposals made by other parties[
856 (iv) court action[
857 (v) the psychiatric, medical, or other treatment or diagnostic services that are to be
858 provided to the minor;
859 (j) review proposed orders for, and as requested by the court[
860 (k) prepare proposed orders with clear and specific directions regarding services,
861 treatment, [
864 monitor implementation of a minor's [
866 (i) determine whether services ordered by the court:
867 (A) are actually provided[
868 (B) are provided in a timely manner[
869 (ii) attempt to assess whether [
871 (4) (a) [
872 trained volunteers, in accordance with Title 67, Chapter 20, Volunteer Government Workers
873 Act, trained paralegals, and other trained staff to assist in investigation and preparation of
874 information regarding the cases of individual minors before the court. [
875 (b) The attorney guardian ad litem described in Subsection (4)(a) may not[
876 delegate the attorney's responsibilities described in Subsection (3).
878 trained in and follow, at a minimum, the guidelines established by the United States
879 Department of Justice Court Appointed Special Advocate Association.
881 Subsection (4)[
882 cases of individual minors within the jurisdiction.
884 the minor appearing before the court, in order to provide assistance to that minor, under the
885 supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or
886 other trained staff.
887 (5) The attorney guardian ad litem shall continue to represent the best interest of the
888 minor until released from [
889 (6) (a) [
890 (i) all costs resulting from the appointment of an attorney guardian ad litem; and
891 (ii) the costs of volunteer, paralegal, and other staff appointment and training[
892 (b) The court shall use funds appropriated by the Legislature for the guardian ad litem
893 program to cover [
895 the court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and
897 court determines to be just and appropriate.
898 (ii) The court may not assess those fees or costs against:
899 (A) a legal guardian, when that guardian is the state[
900 (B) consistent with Subsection (6)(d), a parent who is found to be impecunious. [
901 (d) For purposes of Subsection (6)(c)(ii)(B), if a person claims to be impecunious, the
902 court shall:
903 (i) require [
904 Section 78-7-36 ; and [
905 (ii) follow the procedures and make the determinations as provided in Section 78-7-36 .
906 (7) An attorney guardian ad litem appointed under this section, when serving in the
907 scope of the attorney guardian ad litem's duties as guardian ad litem is considered an employee
908 of the state for purposes of indemnification under Title 63, Chapter [
909 Governmental Immunity Act of Utah.
910 (8) (a) An attorney guardian ad litem shall represent the best interest of a minor.
911 (b) If the minor's wishes differ from the attorney's determination of the minor's best
912 interest, the attorney guardian ad litem shall communicate the minor's wishes to the court in
913 addition to presenting the attorney's determination of the minor's best interest.
914 (c) A difference between the minor's wishes and the attorney's determination of best
915 interest may not be considered a conflict of interest for the attorney.
917 interests of more than one minor child of a marriage.
918 (9) An attorney guardian ad litem shall be provided access to all Division of Child and
919 Family Services records regarding the minor at issue and the minor's family.
920 (10) An attorney guardian ad litem shall maintain current and accurate records
922 (a) the number of times the attorney has had contact with each minor; and
923 (b) the actions the attorney has taken in representation of the minor's best interest.
924 (11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian
925 ad litem are confidential and may not be released or made public upon subpoena, search
926 warrant, discovery proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2,
928 (b) [
930 (i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative
931 Subpoena Powers[
932 (ii) shall be released to the Legislature.
933 (c) (i) [
934 accordance with Subsection (11)(b) shall be maintained as confidential by the Legislature.
936 (ii) Notwithstanding Subsection (11)(c)(i), the Office of the Legislative Auditor
937 General may[
938 and reports to the Legislature.
939 (d) (i) [
940 Professional Conduct, Rule 1.6, as provided by Rule 1.6(b)(4), because of:
941 (A) the unique role of an attorney guardian ad litem described in Subsection (8)[
942 (B) the state's role and responsibility:
943 (I) to provide a guardian ad litem program; and[
944 (II) as parens patriae, to protect minors[
946 (ii) A claim of attorney-client privilege does not bar access to the records of an attorney
947 guardian ad litem by the Legislature, through legislative subpoena.
948 (e) The Office of the Guardian Ad Litem shall present an annual report to the Child
949 Welfare Legislative Oversight Panel detailing:
950 (i) the development, policy, and management of the statewide guardian ad litem
952 (ii) the training and evaluation of attorney guardians ad litem and volunteers; and
953 (iii) the number of children served by the Office of the Guardian Ad Litem.
Legislative Review Note
as of 1-25-05 10:49 AM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.