S.B. 112

1

CHILD PROTECTION AMENDMENTS
2 2005 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Gregory S. Bell
5
6 LONG TITLE
7 General Description:
8 This bill amends the child protection and custody provisions of the Child and Family
9 Services chapter of the Human Services Code and the Juvenile Courts chapter of the
10 Judicial Code.
11 Highlighted Provisions:
12 This bill:
13 . defines terms, including the terms "immediate danger" and "imminent threat";
14 . describes the circumstances and procedures under which a minor may be taken into
15 custody;
16 . provides that a minor may not be taken into temporary custody without a court order
17 or a warrant unless the minor is in immediate danger;
18 . provides that a warrant to take a minor into protective custody may be issued
19 without providing the parent or guardian with notice and an opportunity to be heard,
20 if there is probable cause to establish that there is an imminent threat to the minor;
21 . specifies when a shelter hearing is required;
22 . establishes the circumstances and procedures under which a court may hold an
23 expedited hearing to determine whether a minor should be placed in temporary
24 custody;
25 . provides that an expedited hearing to determine whether a minor should be placed
26 in temporary custody constitutes a shelter hearing;
27 . consolidates existing code provisions;

28 . provides that an endorsement by a court on a summons directing that a minor be
29 taken into custody is subject to the same restrictions that are placed upon a court for
30 the issuance of a warrant to take a minor into custody; and
31 . makes technical changes.
32 Monies Appropriated in this Bill:
33 None
34 Other Special Clauses:
35 None
36 Utah Code Sections Affected:
37 AMENDS:
38 62A-4a-202.1, as last amended by Chapter 180, Laws of Utah 2004
39 62A-4a-202.8, as enacted by Chapter 326, Laws of Utah 2003
40 78-3a-106, as last amended by Chapter 267, Laws of Utah 2003
41 78-3a-110, as enacted by Chapter 365, Laws of Utah 1997
42 78-3a-113, as last amended by Chapters 102 and 267, Laws of Utah 2004
43 78-3a-301, as last amended by Chapter 356, Laws of Utah 2004
44 78-3a-305, as last amended by Chapters 68 and 326, Laws of Utah 2003
45 78-3a-306, as last amended by Chapters 131 and 267, Laws of Utah 2003
46 78-3a-308, as last amended by Chapter 326, Laws of Utah 2003
47 ENACTS:
48 78-3a-106.5, Utah Code Annotated 1953
49
50 Be it enacted by the Legislature of the state of Utah:
51 Section 1. Section 62A-4a-202.1 is amended to read:
52 62A-4a-202.1. Entering home of a minor -- Taking a minor into protective
53 custody -- Caseworker accompanied by peace officer -- Preventive services -- Shelter care
54 or emergency kinship.
55 [(1) A state officer, peace officer, or child welfare worker may not enter the home of a
56 minor who is not under the jurisdiction of the court, remove a minor from the minor's home or
57 school, or take a minor into protective custody unless:]
58 [(a) the state officer, peace officer, or child welfare worker has obtained:]

59 [(i) the consent of the minor's parent or guardian; or]
60 [(ii) a court order issued under Section 78-3a-106 ; or]
61 [(b) there exist exigent circumstances.]
62 (1) A parent or guardian may not be deprived of the custody of the parent's or
63 guardian's minor, except as provided in Subsection 78-3a-106 (3), (4), or (8) or Section
64 78-3a-301 .
65 (2) A child welfare worker within the division may take action under [Subsection (1)]
66 Subsection 78-3a-106 (3) or (4):
67 (a) when accompanied by a peace officer[,]; or
68 (b) without a peace officer when a peace officer is not reasonably available.
69 (3) (a) If possible, consistent with the minor's safety and welfare, before taking a minor
70 into protective custody, the child welfare worker shall [also] determine whether there are
71 services reasonably available to the child welfare worker which, if provided to the minor's
72 parent, or guardian, or to the minor, would eliminate the need to remove the minor from the
73 custody of the minor's parent or guardian.
74 (b) If [those] the services described in Subsection (3)(a) are reasonably available,
75 [they] the services shall be utilized.
76 (c) In determining whether the services described in Subsection (3)(a) are reasonably
77 available, and in making reasonable efforts to provide those services, the minor's health, safety,
78 and welfare shall be the child welfare worker's paramount concern.
79 (4) (a) A minor removed or taken into custody under this section may not be placed or
80 kept in a secure detention facility pending court proceedings unless the minor is detainable
81 based on guidelines promulgated by the Division of Juvenile Justice Services.
82 (b) A minor removed from the custody of the minor's parent or guardian but who does
83 not require physical restriction shall be given temporary care in:
84 (i) a shelter facility; or
85 (ii) an emergency kinship placement in accordance with Section 62A-4a-209 .
86 Section 2. Section 62A-4a-202.8 is amended to read:
87 62A-4a-202.8. Meeting within 24 hours.
88 (1) If the division files a petition under [Subsection] Section 78-3a-305 [(1) or (2)] but
89 does not take the child into protective custody, the division shall convene a child protection

90 team meeting within 24 hours of the filing, excluding weekends and holidays, to review:
91 (a) the circumstances regarding the filing of the petition; and
92 (b) to develop a safety plan to protect the child from further abuse or neglect.
93 (2) The team shall include as many persons under Subsection 62A-4a-202.3 (6)(b) as
94 appropriate.
95 (3) At its meeting the team shall review the complete child protective services and
96 foster care history of the child and the child's parents and siblings.
97 Section 3. Section 78-3a-106 is amended to read:
98 78-3a-106. Search warrants and subpoenas -- Authority to issue.
99 (1) For purposes of this section:
100 (a) "Custody" means custody, care, and control.
101 (b) "Immediate danger" means:
102 (i) there is a threat of harm to a minor's health or safety;
103 (ii) there is a need to take custody of the minor to avoid the harm; and
104 (iii) there is not sufficient time to obtain a warrant before the harm occurs.
105 (c) "Imminent threat" means:
106 (i) there is a threat of harm to a minor's health or safety;
107 (ii) there is a need to take custody of the minor to avoid the harm;
108 (iii) there is sufficient time to obtain a warrant before the harm occurs; and
109 (iv) under the circumstances, it is necessary to place the minor in protective custody
110 without first giving the minor's parent or guardian notice and an opportunity to be heard
111 regarding whether the minor should be removed from the custody of the parent or guardian.
112 (d) "Officer" means a:
113 (i) child welfare worker;
114 (ii) peace officer; or
115 (iii) state officer.
116 [(1)] (2) The court has authority to issue search warrants, subpoenas, or investigative
117 subpoenas in:
118 (a) (i) a criminal [cases,] case;
119 (ii) a delinquency[, and] proceeding; and
120 (iii) an abuse, neglect, and dependency [proceedings] proceeding; and

121 (b) for the same purposes, in the same manner, and pursuant to the same procedures set
122 forth in the code of criminal procedure for the issuance of [search warrants, subpoenas, or
123 investigative subpoenas] a search warrant or a subpoena in other trial courts in the state.
124 [(2) (a) The court may issue a warrant authorizing a child protective services worker or
125 peace officer to search for a child and take the child into protective custody if it appears to the
126 court upon a verified petition, recorded sworn testimony or an affidavit sworn to by a peace
127 officer or any other person, and upon the examination of other witnesses, if required by the
128 judge, that there is probable cause to believe that:]
129 [(i) there is an immediate threat to the safety of a child; and]
130 [(ii) the applicant certifies to the court in writing or by recorded sworn testimony as to
131 the efforts, if any, that have been made to give notice to the minor's parent or guardian and the
132 reasons supporting the claim that notice and an opportunity to be heard should not be required.]
133 [(b) A warrant removing a child from his home or school, or having the effect of
134 depriving a parent or guardian of the care, custody, and control of their minor child, may not be
135 issued without notice to the minor's parents and opportunity to be heard unless the
136 requirements of Subsections (2)(a)(i) and (ii) have been satisfied.]
137 (3) A parent or guardian may not be deprived of the custody of the parent's or
138 guardian's minor:
139 (a) except upon court order, after a hearing is held where the parent or guardian has
140 notice and an opportunity to be heard regarding whether the minor should be removed from the
141 custody of the parent or guardian;
142 (b) unless removal of the minor from the parent's or guardian's custody is permitted by
143 Subsection (4); or
144 (c) unless taking the minor into custody is otherwise expressly permitted by law.
145 (4) (a) Unless one of the conditions described in Subsection (3) or (4)(b) exist, an
146 officer may not:
147 (i) enter the home of a minor who is not under the jurisdiction of the court;
148 (ii) remove a minor from the minor's home or school; or
149 (iii) take a minor into protective custody.
150 (b) An officer may take an action described in Subsection (4)(a) if:
151 (i) the officer obtains consent from the minor's parent or guardian;

152 (ii) the officer obtains a warrant;
153 (iii) the minor is in immediate danger; or
154 (iv) the officer is expressly permitted by law to act in a manner described in Subsection
155 (4)(a).
156 (5) If a minor is taken into protective custody under Subsections (4)(b)(i) through (iii),
157 a shelter hearing shall be held pursuant to Section 78-3a-306 .
158 (6) (a) The court may issue a warrant authorizing an officer to search for a minor and
159 take the minor into protective custody if there is probable cause to believe that there is an
160 imminent threat to the minor.
161 (b) The court's decision on whether to issue a warrant under this Subsection (6) may be
162 made on the basis of:
163 (i) (A) a verified petition;
164 (B) recorded sworn testimony; or
165 (C) a sworn affidavit; and
166 (ii) if required by the judge, the examination of other witnesses.
167 [(c)] (7) (a) Pursuant to Section 77-23-210 , a peace officer making the search described
168 in Subsection (6)(b)(i) may enter a house or premises by force, if necessary, in order to remove
169 the [child] minor.
170 [(d)] (b) The person executing the warrant described in Subsection (6)(b)(i) or (ii) shall
171 [then] take the [child] minor to the place of shelter designated by:
172 (i) the court[.]; or
173 (ii) the Division of Child and Family Services.
174 (8) (a) A court may hold an expedited hearing to determine whether a minor should be
175 placed in temporary custody if:
176 (i) a person files a petition under Section 78-3a-305 ;
177 (ii) a motion for the expedited hearing described in this Subsection (8)(a) entitled
178 "Motion for Expedited Placement in Temporary Custody" is filed; and
179 (iii) subject to Subsections (8)(c) and (9), notice of the hearing described in this
180 Subsection (8)(a) is personally served on a parent or guardian of the minor.
181 (b) The hearing described in Subsection (8)(a):
182 (i) shall be held within 72 hours, excluding weekends and holidays, of the filing of the

183 motion described in Subsection (8)(a)(ii); and
184 (ii) shall be considered a shelter hearing under Section 78-3a-306 and Utah Rules of
185 Juvenile Procedure, Rule 13.
186 (c) The hearing and notice described in Subsection (8)(a) are subject to:
187 (i) Section 78-3a-306 ;
188 (ii) Section 78-3a-307 ; and
189 (iii) the Utah Rules of Juvenile Procedure.
190 (d) After the hearing described in this Subsection (8), a court may order a minor placed
191 in protective custody pursuant to Section 78-3a-301 .
192 [(3)] (9) The parent or guardian to be notified under Subsection (8)(a)(iii) must be the
193 minor's primary caregiver, or the person who has custody of the minor, when the order is
194 sought.
195 Section 4. Section 78-3a-106.5 is enacted to read:
196 78-3a-106.5. Expedited filing of petition -- Expedited hearings.
197 (1) For purposes of this section, "petition" means a petition to commence proceedings
198 in the juvenile court alleging that a minor is:
199 (a) abused;
200 (b) neglected; or
201 (c) dependent.
202 (2) If a petition is requested by the division, the attorney general shall file the petition
203 within 72 hours of the completion of the division's investigation and request, excluding
204 weekends and holidays, if:
205 (a) the minor who is the subject of the requested petition is not removed from the
206 minor's home by the division; and
207 (b) without an expedited hearing and services ordered under the protective supervision
208 of the court, the minor will likely be taken into protective custody.
209 (3) The court shall give scheduling priority to the pretrial and adjudication hearings on
210 a petition if:
211 (a) the minor who is the subject of the petition is not in:
212 (i) protective custody; or
213 (ii) temporary custody; and

214 (b) the division indicates in the petition that, without expedited hearings and services
215 ordered under the protective supervision of the court, the minor will likely be taken into
216 protective custody.
217 Section 5. Section 78-3a-110 is amended to read:
218 78-3a-110. Summons -- Service and process -- Issuance and contents -- Notice to
219 absent parent or guardian -- Emergency medical or surgical treatment -- Compulsory
220 process for attendance of witnesses when authorized.
221 (1) (a) After a petition is filed, the court shall promptly issue a summons, unless the
222 judge directs that a further investigation is needed. [No]
223 (b) A summons is not required as to any person who appears voluntarily or who files a
224 written waiver of service with the clerk of the court at or prior to the hearing.
225 (2) The summons described in this section shall contain:
226 (a) the name of the court;
227 (b) the title of the proceedings; and
228 (c) except for a published summons, a brief statement of the substance of the
229 allegations in the petition.
230 (3) A published summons shall state that:
231 (a) [that] a proceeding concerning the minor is pending in the court; and
232 (b) an adjudication will be made.
233 (4) (a) The summons described in this section shall require the person or persons who
234 have physical custody of the minor to:
235 (i) appear personally; and
236 (ii) bring the minor before the court at a time and place stated.
237 (b) If the person or persons summoned are not the parent, parents, or guardian of the
238 minor, the summons shall also be issued to the parent, parents, or guardian, as the case may be,
239 notifying them of the pendency of the case and of the time and place set for the hearing.
240 (5) [Summons] A summons may be issued requiring the appearance of any other
241 person whose presence the court finds necessary.
242 (6) [If] (a) Subject to Subsection (6)(b), if it appears to the court that the welfare of the
243 minor or of the public requires that the minor be taken into custody, the court may by
244 endorsement upon the summons direct that the person serving the summons take the minor into

245 custody at once.
246 (b) The endorsement described in Subsection (6)(a) is subject to the same restrictions
247 as a warrant under Section 78-3a-106 .
248 (7) Upon the sworn testimony of one or more reputable physicians, the court may order
249 emergency medical or surgical treatment that is immediately necessary for a minor concerning
250 whom a petition [has been] is filed pending the service of a summons upon [his] the minor's
251 parents, guardian, or custodian.
252 (8) (a) A parent or guardian is entitled to the issuance of compulsory process for the
253 attendance of witnesses on [his] the parent's or guardian's own behalf or on behalf of the minor.
254 (b) A guardian ad litem or a probation officer is entitled to compulsory process for the
255 attendance of witnesses on behalf of the minor.
256 (9) Service of summons and process and proof of service shall be made in the manner
257 provided in the Utah Rules of Civil Procedure.
258 (10) Service of summons or process shall be made:
259 (a) by the sheriff of the county where the service is to be made[, or by his deputy; but];
260 (b) by the deputy of the sheriff described in Subsection (10)(a); or
261 (c) upon request of the court [service shall be made], by any [other]:
262 (i) peace officer[, or by another] selected by the court; or
263 (ii) suitable person selected by the court.
264 (11) Service of summons in the state shall be made personally, by delivering a copy to
265 the person summoned; provided, however, that parents of a minor living together at their usual
266 place of abode may both be served by personal delivery to either parent of copies of the
267 summons, one copy for each parent.
268 (12) (a) If the judge makes a written finding that [he has] there is reason to believe that
269 personal service of the summons will be unsuccessful, or will not accomplish notification
270 within a reasonable time after issuance of the summons, [he] the judge may order service by
271 registered mail, with a return receipt to be signed by the addressee only, to be addressed to the
272 last-known address of the person to be served in the state.
273 (b) Service of a summons shall be complete upon return to the court of the signed
274 receipt.
275 (13) (a) If [the parents,] a minor's parent[,] or guardian who is required to be

276 summoned under Subsection (4) cannot be found within the state, the fact of [their] the minor's
277 presence within the state shall confer jurisdiction on the court in [proceedings in minor's cases]
278 a proceeding in a minor's case under this chapter as to any absent parent or guardian, provided
279 that due notice [has been] is given [in the following manner]:
280 [(a) If] (i) if the address of the parent or guardian is known, [due notice is given by
281 sending him] by:
282 (A) subject to Subsection (13)(b)(i), sending the parent or guardian a copy of the
283 summons by registered mail with a return receipt to be signed by the addressee only[, or by]; or
284 (B) personal service outside the state, as provided in the Utah Rules of Civil
285 Procedure[. Service by registered mail shall be complete upon return to the court of the signed
286 receipt.]; or
287 [(b) If] (ii) subject to Subsection (13)(b)(ii), if the address or whereabouts of the parent
288 or guardian outside the state cannot after diligent inquiry be ascertained, [due notice is given]
289 by publishing a summons in a newspaper having general circulation in the county in which the
290 proceeding is pending. [The summons shall be published once a week for four successive
291 weeks. Service shall be complete on the day of the last publication.]
292 (b) (i) For purposes of Subsection (13)(a)(i)(A), service by registered mail shall be
293 complete upon return to the court of the signed receipt.
294 (ii) (A) The summons described in Subsection (13)(a)(ii) shall be published once a
295 week for four successive weeks.
296 (B) Service of the summons described in Subsection (13)(a)(ii) shall be complete on
297 the day of the last publication.
298 [(c)] (iii) Service of the summons as provided in this Subsection (13) shall vest the
299 court with jurisdiction over the parent or guardian served in the same manner and to the same
300 extent as if the person served was served personally within the state.
301 (14) (a) In the case of service in the state, service completed not less than 48 hours
302 before the time set in the summons for the appearance of the person served, shall be sufficient
303 to confer jurisdiction.
304 (b) In the case of service outside the state, service completed not less than five days
305 before the time set in the summons for appearance of the person served, shall be sufficient to
306 confer jurisdiction.

307 (15) Computation of periods of time under this chapter shall be made in accordance
308 with the Utah Rules of Civil Procedure.
309 Section 6. Section 78-3a-113 is amended to read:
310 78-3a-113. Minor taken into custody by peace officer, private citizen, or
311 probation officer -- Grounds -- Notice requirements -- Release or detention -- Grounds
312 for peace officer to take adult into custody.
313 (1) A minor may be taken into custody by a peace officer without order of the court if:
314 (a) in the presence of the officer the minor has violated a state law, federal law, local
315 law, or municipal ordinance;
316 (b) there are reasonable grounds to believe the minor [has] committed an act which if
317 committed by an adult would be a felony;
318 [(c) the minor is seriously endangered in his surroundings or if]
319 (c) custody is permitted under Subsection 78-3a-106 (4);
320 (d) the minor seriously endangers others, and immediate removal appears to be
321 necessary for [his protection or] the protection of others;
322 [(d)] (e) there are reasonable grounds to believe the minor has run away or escaped
323 from [his] the minor's parents, guardian, or custodian; or
324 [(e)] (f) there is reason to believe the minor is subject to the state's compulsory
325 education law and that the minor is absent from school without legitimate or valid excuse,
326 subject to Section 53A-11-105 .
327 (2) (a) A private citizen or a probation officer may take a minor into custody if under
328 the circumstances [he] the citizen or probation officer could make a citizen's arrest if the minor
329 was an adult.
330 (b) [A] (i) Subject to Subsection (2)(b)(ii), a probation officer may [also] take a minor
331 into custody:
332 (A) for any reason that a peace officer is permitted to take a minor into custody under
333 Subsection (1); or
334 (B) if the minor [has violated] violates the conditions of probation[, if].
335 (ii) A probation officer may not take a minor into protective custody under Subsection
336 (2)(b)(i) unless:
337 (A) the minor is under the continuing jurisdiction of the juvenile court; or [in

338 emergency situations in which]
339 (B) (I) an emergency situation exists; and
340 (II) a peace officer is not immediately available.
341 (3) (a) [(i)] If an officer or other person takes a minor into temporary custody[, he]:
342 (i) the officer or person shall without unnecessary delay notify the parents, guardian, or
343 custodian[.] of the minor; and
344 (ii) [The] the minor shall [then] be released to the care of [his] the minor's parent or
345 other responsible adult, unless [his] the minor's immediate welfare or the protection of the
346 community requires [his] the minor's detention.
347 (b) If the minor is taken into custody or detention for a violent felony, as defined in
348 Section 76-3-203.5 , or an offense in violation of Title 76, Chapter 10, Part 5, Weapons, the
349 officer or other law enforcement agent taking the minor into custody shall, as soon as
350 practicable or as established under Subsection 53A-11-1001 (2), notify the school
351 superintendent of the district in which the minor resides or attends school for the purposes of
352 the minor's supervision and student safety.
353 [(i)] (c) The notice described in Subsection (3)(b) shall:
354 (i) disclose only:
355 (A) the name of the minor;
356 (B) the offense for which the minor was taken into custody or detention; and
357 (C) if available, the name of the victim, if the victim:
358 (I) resides in the same school district as the minor; or
359 (II) attends the same school as the minor[.]; and
360 (ii) [The notice shall] be classified as a protected record under Section 63-2-304 .
361 [(iii) All other records disclosures are]
362 (d) Disclosure of a record, other than the notice described in Subsections (3)(b) and (c),
363 is governed by:
364 (i) Title 63, Chapter 2, Government Records Access and Management Act; and
365 (ii) the Federal Family Educational Rights and Privacy Act.
366 [(c)] (e) Employees of a governmental agency are immune from any criminal liability
367 for providing or failing to provide the information required by this section unless the person
368 acts or fails to act due to:

369 (i) malice[,];
370 (ii) gross negligence[,]; or
371 (iii) deliberate indifference to the consequences.
372 [(d)] (f) Before [the] a minor is released, the parent or other person to whom the minor
373 is released shall be required to sign a written promise on forms supplied by the court to bring
374 the minor to the court at a time set or to be set by the court.
375 (4) (a) A minor may not be held in temporary custody by law enforcement any longer
376 than is reasonably necessary:
377 (i) to obtain [his]:
378 (A) the minor's name[,];
379 (B) the minor's age[,];
380 (C) the minor's residence[,]; and
381 (D) other necessary information; and
382 (ii) to contact [his] the minor's parents, guardian, or custodian.
383 (b) If the minor is not released under Subsection (3), [he] the minor shall be taken to a
384 place of detention or shelter without unnecessary delay.
385 (5) (a) The person who takes a minor to a detention or shelter facility shall promptly
386 file with the detention or shelter facility a written report on a form provided by the division
387 stating the:
388 (i) details of the presently alleged offense[, the];
389 (ii) facts which bring the minor within the jurisdiction of the juvenile court[,]; and [the]
390 (iii) reason the minor was not released by law enforcement.
391 (b) (i) The designated youth corrections facility staff person shall:
392 (A) immediately review the form described in Subsection (5)(a); and
393 (B) determine, based on the guidelines for detention admissions established by the
394 Division of Juvenile Justice Services under Sections 62A-7-104 and 62A-7-205 , whether to:
395 (I) admit the minor to secure detention[,];
396 (II) admit the minor to home detention[,];
397 (III) place the minor in a placement other than detention[, or];
398 (IV) return the minor home upon written promise to bring the minor to the court at a
399 time set[,]; or

400 (V) return the minor home without restriction.
401 (ii) If the designated youth corrections facility staff person determines, pursuant to
402 Subsection (5)(b)(i)(B), to admit [the] a minor to home detention[, that]:
403 (A) the designated youth corrections facility staff person shall notify the juvenile court
404 of [that] the determination[. The]; and
405 (B) the court shall order that notice of the home detention be provided to the
406 designated persons in the local law enforcement agency and the school or transferee school, if
407 applicable, [which] that the minor attends [of the home detention].
408 (iii) The designated persons may receive the information described in Subsection
409 (5)(b)(ii)(B) for purposes of the minor's supervision and student safety.
410 [(iii)] (iv) Any employee of the local law enforcement agency and the school [which]
411 that the minor attends who discloses the notification of home detention is not:
412 (A) civilly liable except when disclosure constitutes fraud or willful misconduct as
413 provided in Section 63-30d-202 ; and
414 (B) civilly or criminally liable except when disclosure constitutes a knowing violation
415 of Section 63-2-801 .
416 (c) A minor may not be admitted to detention unless the minor:
417 (i) is detainable based on the guidelines described in Subsection (5)(b)(i)(B); or [the
418 minor has been]
419 (ii) is brought to detention pursuant to a judicial order or division warrant pursuant to
420 Subsection 62A-7-112 (8).
421 (d) If a minor taken to detention does not qualify for admission under the guidelines
422 [established by the division under Sections 62A-7-104 and 62A-7-205 ] described in Subsection
423 (5)(b)(i)(B), detention staff shall arrange appropriate placement.
424 (e) If a minor is taken into custody and admitted to a secure detention or shelter
425 facility, facility staff shall:
426 (i) immediately notify the minor's parents, guardian, or custodian of the placement; and
427 [shall]
428 (ii) promptly notify the court of the placement.
429 (f) If [the] a minor is admitted to a secure detention or shelter facility outside the
430 county of [his] the minor's residence and it is determined in the hearing held under Subsection

431 78-3a-114 (3) that detention shall continue, the judge or commissioner shall direct the sheriff of
432 the county of the minor's residence to transport the minor to a detention or shelter facility as
433 provided in this section.
434 (6) A person may be taken into custody by a peace officer without a court order if the
435 person is in apparent violation of a protective order or if there is reason to believe that a minor
436 is being abused by the person and any of the situations outlined in Section 77-7-2 exist.
437 Section 7. Section 78-3a-301 is amended to read:
438 78-3a-301. Court-ordered protective custody of a minor following petition filing
439 -- Grounds.
440 (1) After a petition [has been] is filed under Section 78-3a-106.5 or Subsection
441 78-3a-305 [(1)](2), if the minor who is the subject of the petition is not in the protective custody
442 of the division, a court may order that the minor be removed from the minor's home or
443 otherwise taken into protective custody if the court finds, by a preponderance of the evidence,
444 that any one or more of the following circumstances exist:
445 (a) (i) there is an imminent danger to the physical health or safety of the minor; and
446 (ii) the minor's physical health or safety may not be protected without removing the
447 minor from the custody of the minor's parent or guardian;
448 (b) (i) a parent or guardian engages in or threatens the minor with unreasonable
449 conduct that causes the minor to suffer emotional damage; and
450 (ii) there are no reasonable means available by which the minor's emotional health may
451 be protected without removing the minor from the custody of the minor's parent or guardian;
452 (c) the minor or another minor residing in the same household has been physically or
453 sexually abused, or is considered to be at substantial risk of being physically or sexually
454 abused, by a:
455 (i) parent or guardian[, a];
456 (ii) member of the parent's or guardian's household[,]; or [other]
457 (iii) a person known to the parent or guardian;
458 (d) the parent or guardian is unwilling to have physical custody of the minor;
459 (e) the minor has been abandoned or left without any provision for the minor's support;
460 (f) a parent or guardian who [has been] is incarcerated or institutionalized has not
461 arranged or cannot arrange for safe and appropriate care for the minor;

462 (g) (i) a relative or other adult custodian with whom the minor [has been] is left by the
463 parent or guardian is unwilling or unable to provide care or support for the minor[,];
464 (ii) the whereabouts of the parent or guardian are unknown[,]; and
465 (iii) reasonable efforts to locate the parent or guardian [have been] are unsuccessful;
466 (h) the minor is in immediate need of medical care;
467 (i) (i) a parent's or guardian's actions, omissions, or habitual action create an
468 environment that poses a threat to the minor's health or safety; or
469 (ii) a parent's or guardian's action in leaving a minor unattended would reasonably pose
470 a threat to the minor's health or safety;
471 (j) the minor or another minor residing in the same household has been neglected;
472 (k) an infant has been abandoned, as defined in Section 78-3a-313.5 ;
473 (l) (i) the parent or guardian, or an adult residing in the same household as the parent or
474 guardian, [has been] is charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug
475 Lab Act[,]; and
476 (ii) any clandestine laboratory operation, as defined in Section 58-37d-3 , was located in
477 the residence or on the property where the minor resided; or
478 (m) the minor's welfare is otherwise endangered.
479 (2) (a) For purposes of Subsection (1)(a), prima facie evidence that the minor
480 cannot safely remain in the custody of the minor's parent is established if [a]:
481 (i) the minor [has] was previously [been] adjudicated as abused, neglected, or
482 dependent[,]; and
483 (ii) a subsequent incident of abuse, neglect, or dependency [has occurred] occurs
484 involving the same substantiated abuser or under similar circumstance as the previous abuse[,
485 that fact constitutes prima facie evidence that the minor cannot safely remain in the custody of
486 the minor's parent].
487 (b) For purposes of Subsection (1)(c):
488 (i) another minor residing in the same household may not be removed from the home
489 unless that minor is considered to be at substantial risk of being physically or sexually abused
490 as described in Subsection (1)(c) or Subsection (2)(b)(ii); and
491 (ii) prima facie evidence that the minor is at substantial risk of being physically or
492 sexually abused is established if:

493 (A) a parent or guardian [has] received actual notice that physical or sexual abuse by a
494 person known to the parent [has] occurred[,]; and
495 (B) there is evidence that the parent or guardian failed to protect the minor, after
496 [having received] receiving the notice described in Subsection (2)(b)(ii)(A), by allowing the
497 minor to be in the physical presence of the alleged abuser[, that fact constitutes prima facie
498 evidence that the minor is at substantial risk of being physically or sexually abused].
499 (3) In the absence of one of the factors described in Subsection (1), a court may not
500 remove a minor from the parent's or guardian's custody on the basis of:
501 (a) educational neglect;
502 (b) mental illness or poverty of the parent or guardian; or
503 (c) disability of the parent or guardian, as defined in [Subsection 57-21-3 (9)] Section
504 57-21-2 .
505 (4) A minor removed from the custody of the minor's parent or guardian under this
506 section may not be placed or kept in a secure detention facility pending further court
507 proceedings unless the minor is detainable based on guidelines promulgated by the Division of
508 Juvenile Justice Services.
509 (5) This section does not preclude removal of a minor from the minor's home without a
510 warrant or court order under Section 62A-4a-202.1 .
511 Section 8. Section 78-3a-305 is amended to read:
512 78-3a-305. Petition filed -- Protective orders.
513 (1) [Any] For purposes of this section, "petition" is as defined in Section 78-3a-106.5 .
514 (2) (a) Subject to Subsection (2)(b), any interested person may file a petition [to
515 commence proceedings in the juvenile court alleging that a minor is abused, neglected, or
516 dependent. The].
517 (b) A person described in Subsection (2)(a) shall [first] make a referral with the
518 division before the person files a petition.
519 [(2) (a) If the child] (3) If a minor who is the subject of a petition [was] is removed
520 from [his] the minor's home by the [Division of Child and Family Services that] division, the
521 petition shall be filed on or before the date of the initial shelter hearing described in Section
522 78-3a-306 .
523 [(b) If a petition is requested by the division, the attorney general shall file the petition

524 within 72 hours of the completion of the investigation and request, excluding weekends and
525 holidays, if:]
526 [(i) the child who is the subject of the requested petition has not been removed from his
527 home by the division; and]
528 [(ii) without an expedited hearing and services ordered under the protective supervision
529 of the court, the child will likely be taken into protective custody.]
530 [(3) The] (4) A petition shall be verified, and contain all of the following:
531 (a) the name, age, and address, if any, of the minor upon whose behalf the petition is
532 brought;
533 (b) the names and addresses, if known to the petitioner, of both parents and any
534 guardian of the minor;
535 (c) a concise statement of facts, separately stated, to support the conclusion that the
536 minor upon whose behalf the petition is being brought is abused, neglected, or dependent; and
537 (d) a statement regarding whether the minor is in protective custody, and if so, the date
538 and precise time the minor was taken into protective custody.
539 Section 9. Section 78-3a-306 is amended to read:
540 78-3a-306. Shelter hearing.
541 (1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
542 after any one or all of the following occur:
543 (a) removal of the [child] minor from [his] the minor's home by the [Division of Child
544 and Family Services] division;
545 (b) placement of the [child] minor in the protective custody of the [Division of Child
546 and Family Services] division;
547 (c) a minor is taken into custody under Subsections 78-3a-106 (4)(b)(i) through (iii);
548 (d) (i) a motion, as described in Subsection 78-3a-106 (8)(a), for an expedited hearing is
549 filed; and
550 (ii) notice is served as described in Subsection 78-3a-106 (8)(a)(iii);
551 [(c)] (e) emergency kinship placement under Subsection 62A-4a-202.1 (4); or
552 [(d)] (f) as an alternative to removal of the [child] minor, a parent [has entered] enters a
553 domestic violence shelter at the request of the [Division of Child and Family Services]
554 division.

555 (2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
556 through [(1)(d)](f), the division shall issue a notice that contains all of the following:
557 (a) the name and address of the person to whom the notice is directed;
558 (b) the date, time, and place of the shelter hearing;
559 (c) the name of the minor on whose behalf a petition is being brought;
560 (d) a concise statement regarding:
561 (i) the reasons for removal or other action of the division under Subsection (1); and
562 (ii) the allegations and code sections under which the proceeding [has been] is
563 instituted;
564 (e) a statement that:
565 (i) the parent or guardian to whom notice is given, and the minor, are entitled to have
566 an attorney present at the shelter hearing[, and that]; and
567 (ii) an attorney will be provided if the parent or guardian:
568 (A) is indigent [and];
569 (B) cannot afford an attorney[,]; and
570 (C) desires to be represented by an attorney[, one will be provided]; and
571 (f) a statement that the parent or guardian is liable for:
572 (i) the cost of support of the minor in the protective custody, temporary custody, and
573 custody of the division[,]; and
574 (ii) the cost for legal counsel appointed for the parent or guardian under Subsection
575 (2)(e), according to [his] the financial ability of the parent or guardian.
576 (3) [That] The notice described in Subsection (2) shall be personally served as soon as
577 possible, but no later than one business day after removal of a [child] minor from [his] the
578 minor's home, on:
579 (a) the appropriate guardian ad litem; and
580 (b) both parents and any guardian of the minor, unless [they] the parents or guardian
581 cannot be located.
582 (4) The following persons shall be present at the shelter hearing:
583 (a) the [child] minor, unless it would be detrimental for the [child] minor;
584 (b) the [child's] minor's parents or guardian, unless [they] the parents or guardian:
585 (i) cannot be located[,]; or

586 (ii) fail to appear in response to the notice;
587 (c) counsel for the parents, if [one has been] counsel is requested;
588 (d) the [child's] minor's guardian ad litem;
589 (e) the caseworker from the [Division of Child and Family Services] division who [has
590 been] is assigned to the case; and
591 (f) the attorney from the attorney general's office who is representing the division.
592 (5) (a) At the shelter hearing, the court:
593 (i) shall provide an opportunity for the minor's parent or guardian, if present, and any
594 other person having relevant knowledge, to provide relevant testimony[. The court]; and
595 (ii) may [also] provide an opportunity for the minor to testify.
596 (b) The court:
597 (i) may consider all relevant evidence, in accordance with the Utah Rules of Juvenile
598 Procedure[. The court]; and
599 (ii) shall hear relevant evidence presented by the minor, [his] the minor's parent or
600 guardian, the requesting party, or their counsel[, but].
601 (c) Notwithstanding Subsection (5)(b)(ii), the court may in its discretion limit
602 testimony and evidence to only that which [goes] relates to the issues of removal and the
603 [child's] minor's need for continued protection.
604 (6) If the [child] minor is in the protective custody of the division, the division shall
605 report to the court:
606 (a) the reasons why the minor was removed from the parent's or guardian's custody;
607 (b) any services provided to the [child] minor and [his] the minor's family in an effort
608 to prevent removal;
609 (c) the need, if any, for continued shelter;
610 (d) the available services that could facilitate the return of the minor to the custody of
611 [his] the minor's parent or guardian; and
612 (e) whether the [child] minor has any relatives who may be able and willing to take
613 temporary custody.
614 (7) The court shall consider all relevant evidence provided by persons or entities
615 authorized to present relevant evidence pursuant to this section.
616 (8) If necessary to protect the [child] minor, preserve the rights of a party, or for other

617 good cause shown, the court may grant no more than one time-limited continuance, not to
618 exceed five judicial days.
619 (9) If the [child] minor is in the protective custody of the division, the court shall order
620 that the minor be released from the protective custody of the division unless it finds, by a
621 preponderance of the evidence, that any one of the following exist:
622 (a) (i) there is a substantial danger to the physical health or safety of the [minor and the
623 minor's] minor; and
624 (ii) subject to Subsection (10)(a), the minor's physical health or safety may not be
625 protected without removing [him] the minor from [his parent's] the custody[. If a minor has
626 previously been adjudicated as abused, neglected, or dependent and a subsequent incident of
627 abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the child
628 cannot safely remain in the custody of his parent] of the minor's parent;
629 (b) (i) the minor is suffering emotional damage, as may be indicated by, but is not
630 limited to[,]:
631 (A) extreme anxiety[,];
632 (B) depression[,];
633 (C) withdrawal[,]; or
634 (D) negative aggressive behavior toward self or others[,]; and
635 (ii) there are no reasonable means available by which the minor's emotional health may
636 be protected without removing the minor from the custody of [his] the minor's parent;
637 (c) subject to Subsection (10)(b), the minor or another minor residing in the same
638 household has been physically or sexually abused, or is considered to be at substantial risk of
639 being physically or sexually abused, by a parent, a member of the parent's household, or other
640 person known to the parent[. If a parent has received actual notice that physical or sexual
641 abuse by a person known to the parent has occurred, and there is evidence that the parent has
642 allowed the child to be in the physical presence of the alleged abuser, that fact constitutes
643 prima facie evidence that the child is at substantial risk of being physically or sexually abused];
644 (d) the parent is unwilling to have physical custody of the [child] minor;
645 (e) the [minor has been] minor is left without any provision for [his] the minor's
646 support;
647 (f) a parent who [has been] is incarcerated or institutionalized has not or cannot arrange

648 for safe and appropriate care for the minor;
649 (g) (i) a relative or other adult custodian with whom the minor [has been] is left by the
650 parent is unwilling or unable to provide care or support for the minor[,];
651 (ii) the whereabouts of the parent are unknown[,]; and
652 (iii) reasonable efforts to locate [him have been] the parent are unsuccessful;
653 (h) the minor is in immediate need of medical care;
654 (i) the physical environment or the fact that the [child] minor is left unattended poses a
655 threat to the [child's] minor's health or safety;
656 (j) the minor or another minor residing in the same household has been neglected;
657 (k) (i) the parent, or an adult residing in the same household as the parent, [has been] is
658 charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act[,]; and
659 (ii) any clandestine laboratory operation, as defined in Section 58-37d-3 , was located in
660 the residence or on the property where the [child] minor resided; or
661 (l) the [child's] minor's welfare is otherwise endangered.
662 (10) (a) For purposes of Subsection (9)(a)(ii), prima facie evidence that a minor cannot
663 safely remain in the custody of the minor's parent is established if:
664 (i) the minor was previously adjudicated as abused, neglected, or dependent; and
665 (ii) a subsequent incident of abuse, neglect, or dependency occurs.
666 (b) For purposes of Subsection (9)(c), prima facie evidence that a minor is at
667 substantial risk of being physically or sexually abused is established if:
668 (i) a parent received actual notice that physical or sexual abuse by a person known to
669 the parent occurred; and
670 (ii) there is evidence that the parent allowed the minor to be in the physical presence of
671 the alleged abuser.
672 [(10)] (11) (a) The court shall [also] make a determination on the record as to whether:
673 (i) reasonable efforts were made to prevent or eliminate the need for removal of the
674 minor from [his] the minor's home; and
675 (ii) whether there are available services that would prevent the need for continued
676 removal.
677 (b) If the court finds that the minor can be safely returned to the custody of [his] the
678 minor's parent or guardian through the provision of [those services, it] the services described in

679 Subsection (11)(a)(ii), the court shall place the minor with [his] the minor's parent or guardian
680 and order that those services be provided by the division.
681 [(b)] (c) In making [that] the determination described in Subsection (11)(a), and in
682 ordering and providing services, the [child's] minor's health, safety, and welfare shall be the
683 paramount concern, in accordance with federal law.
684 [(11)] (12) Where the division's first contact with the family occurred during an
685 emergency situation in which the [child] minor could not safely remain at home, the court shall
686 make a finding that any lack of preplacement preventive efforts was appropriate.
687 [(12)] (13) In cases where actual sexual abuse or abandonment, or serious physical
688 abuse or neglect are involved, neither the division nor the court has any duty to make
689 "reasonable efforts" or to, in any other way, attempt to:
690 (a) maintain a [child] minor in [his] the minor's home[,];
691 (b) return a [child] minor to [his] the minor's home[,];
692 (c) provide reunification services[,]; or
693 (d) attempt to rehabilitate the offending parent or parents.
694 [(13)] (14) The court may not order continued removal of a minor solely on the basis of
695 educational neglect as described in Subsection 78-3a-103 (1)(s)(ii).
696 [(14)] (15) (a) Whenever a court orders continued removal of a minor under this
697 section, it shall state the facts on which that decision is based.
698 (b) If no continued removal is ordered and the minor is returned home, the court shall
699 state the facts on which that decision is based.
700 [(15)] (16) If the court finds that continued removal and temporary custody are
701 necessary for the protection of a [child] minor because harm may result to the [child] minor if
702 [he] the minor were returned home, it shall order continued removal regardless of:
703 (a) any error in the initial removal of the [child, or] minor;
704 (b) the failure of a party to comply with notice provisions[,]; or
705 (c) any other procedural requirement of this chapter or Title 62A, Chapter 4a, Child
706 and Family Services.
707 Section 10. Section 78-3a-308 is amended to read:
708 78-3a-308. Pretrial and adjudication hearing -- Time deadlines.
709 (1) Upon the filing of a petition, the clerk of the court shall set the pretrial hearing on

710 the petition within 15 calendar days from the later of:
711 (a) the date of the shelter hearing; or
712 (b) the filing of the petition[, whichever is later].
713 (2) The pretrial may be continued upon motion of any party, for good cause shown, but
714 the final adjudication hearing shall be held no later than 60 calendar days from the later of:
715 (a) the date of the shelter hearing; or
716 (b) the filing of the petition[, whichever is later].
717 [(3) In the case where a petition has been filed but the child is not in protective custody
718 or temporary custody, the court shall give scheduling priority to the pretrial and adjudication
719 hearings on the petition if the division indicates in the petition that without expedited hearings
720 and services ordered under the protective supervision of the court the child will likely be taken
721 into protective custody.]




Legislative Review Note
as of 12-28-04 10:11 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel