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H.B. 343

This document includes House Committee Amendments incorporated into the bill on Wed, Feb 7, 2007 at 10:51 AM by ddonat. --> This document includes House Floor Amendments incorporated into the bill on Thu, Feb 22, 2007 at 11:31 AM by jeyring. -->              1     

FOSTER PLACEMENT AND ADOPTION

             2     
AMENDMENTS

             3     
2007 GENERAL SESSION

             4     
STATE OF UTAH

             5     
Chief Sponsor: Lorie D. Fowlke

             6     
Senate Sponsor: Dan R. Eastman

             7     
             8      LONG TITLE
             9      General Description:
             10          This bill amends provisions of the Judicial Code relating to foster placements and
             11      adoption.
             12      Highlighted Provisions:
             13          This bill:
             14          .    subject to certain exceptions, establishes a priority for placing a child with a man
             15      and a woman who are married to each other when the child is placed in a foster
             16      placement or for adoption;
             17          .    prohibits taking religion into account, or discriminating against a particular religion,
             18      when determining the placement of a child in foster care, unless religion is taken
             19      into account for the purpose of placing the child with a person or family of the same
             20      religion as the child; and
             21          .    makes technical changes.
             22      Monies Appropriated in this Bill:
             23          None
             24      Other Special Clauses:
             25           H. [ None ] This bill coordinates with H.B. 328 by providing substantive and technical
             25a      amendments. .H
             26      Utah Code Sections Affected:


             27      AMENDS:


             28          78-3a-307, as last amended by Chapter 281, Laws of Utah 2006
             29          78-30-1, as last amended by Chapter 208, Laws of Utah 2000
             30     
             31      Be it enacted by the Legislature of the state of Utah:
             32          Section 1. Section 78-3a-307 is amended to read:
             33           78-3a-307. Shelter hearing -- Placement with a noncustodial parent or relative --
             34      DCFS custody.
             35          (1) (a) At the shelter hearing, when the court orders that a child be removed from the
             36      custody of the child's parent in accordance with the requirements of Section 78-3a-306 , the
             37      court shall first determine whether there is another natural parent as defined in Subsection
             38      (1)(b), with whom the child was not residing at the time the events or conditions that brought
             39      the child within the court's jurisdiction occurred, who desires to assume custody of the child. If
             40      that parent requests custody, the court shall place the child with that parent unless it finds that
             41      the placement would be unsafe or otherwise detrimental to the child. The provisions of this
             42      Subsection (1) are limited by the provisions of Subsection (8)(b).
             43          (b) Notwithstanding the provisions of Section 78-3a-103 , for purposes of this section
             44      "natural parent" includes only a biological or adoptive mother, an adoptive father, or a
             45      biological father who was married to the child's biological mother at the time the child was
             46      conceived or born, or who has strictly complied with the provisions of Section 78-30-4.14 prior
             47      to removal of the child or voluntary surrender of the child by the custodial parent. This
             48      definition applies regardless of whether the child has been or will be placed with adoptive
             49      parents or whether adoption has been or will be considered as a long term goal for the child.
             50          (c) (i) The court shall make a specific finding regarding the fitness of that parent to
             51      assume custody, and the safety and appropriateness of the placement.
             52          (ii) The court shall, at a minimum, order the division to visit the parent's home,
             53      perform criminal background checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , and
             54      check the division's management information system for any previous reports of abuse or
             55      neglect received by the division regarding the parent at issue.
             56          (iii) The court may order the Division of Child and Family Services to conduct any
             57      further investigation regarding the safety and appropriateness of the placement.
             58          (iv) The division shall report its findings in writing to the court.


             59          (v) The court may place the child in the temporary custody of the division, pending its
             60      determination regarding that placement.
             61          (2) If the court orders placement with a parent under Subsection (1), the child and the
             62      parent are under the continuing jurisdiction of the court. The court may order that the parent
             63      assume custody subject to the supervision of the court, and order that services be provided to
             64      the parent from whose custody the child was removed, the parent who has assumed custody, or
             65      both. The court shall also provide for reasonable parent-time with the parent from whose
             66      custody the child was removed, unless parent-time is not in the best interest of the child. The
             67      court's order shall be periodically reviewed to determine whether:
             68          (a) placement with the parent continues to be in the child's best interest;
             69          (b) the child should be returned to the original custodial parent;
             70          (c) the child should be placed with a relative, pursuant to Subsection (5); or
             71          (d) the child should be placed in the custody of the division.
             72          (3) The time limitations described in Section 78-3a-311 with regard to reunification
             73      efforts, apply to children placed with a previously noncustodial parent in accordance with
             74      Subsection (1).
             75          (4) Legal custody of the child is not affected by an order entered under Subsection (1)
             76      or (2). In order to affect a previous court order regarding legal custody, the party must petition
             77      that court for modification of the order.
             78          (5) (a) (i) If, at the time of the shelter hearing, a child is removed from the custody of
             79      the child's parent and is not placed in the custody of his other parent, the court shall, at that
             80      time, determine whether there is a relative who is able and willing to care for the child.
             81          (ii) The court may order the Division of Child and Family Services to conduct a
             82      reasonable search to determine whether there are relatives of the child who are willing and
             83      appropriate, in accordance with the requirements of this part and Title 62A, Chapter 4a, Part 2,
             84      Child Welfare Services, for placement of the child. The court shall order the parents to
             85      cooperate with the division, within five working days, to provide information regarding
             86      relatives who may be able and willing to care for the child.
             87          (iii) The child may be placed in the temporary custody of the division pending the
             88      determination under Subsection (5)(a)(ii).
             89          (iv) This section may not be construed as a guarantee that an identified relative will


             90      receive custody of the child. However, preferential consideration shall be given to a relative's
             91      request for placement of the child, if it is in the best interest of the child, and the provisions of
             92      this section are satisfied.
             93          (b) (i) If a willing relative is identified pursuant to Subsection (5)(a), the court shall
             94      make a specific finding regarding the fitness of that relative to assume custody, and the safety
             95      and appropriateness of placement with that relative. In order to be considered a "willing
             96      relative" under this section, the relative shall be willing to cooperate if the child's permanency
             97      goal is reunification with his parent or parents, and be willing to adopt or take permanent
             98      custody of the child if that is determined to be in the best interest of the child.
             99          (ii) The court shall, at a minimum, order the division to conduct criminal background
             100      checks described in Sections 78-3a-307.1 and 62A-4a-202.4 , visit the relative's home, check
             101      the division's management information system for any previous reports of abuse or neglect
             102      regarding the relative at issue, report its findings in writing to the court, and provide sufficient
             103      information so that the court may determine whether:
             104          (A) the relative has any history of abusive or neglectful behavior toward other children
             105      that may indicate or present a danger to this child;
             106          (B) the child is comfortable with the relative;
             107          (C) the relative recognizes the parent's history of abuse and is determined to protect the
             108      child;
             109          (D) the relative is strong enough to resist inappropriate requests by the parent for
             110      access to the child, in accordance with court orders;
             111          (E) the relative is committed to caring for the child as long as necessary; and
             112          (F) the relative can provide a secure and stable environment for the child.
             113          (iii) The court may order the Division of Child and Family Services to conduct any
             114      further investigation regarding the safety and appropriateness of the placement.
             115          (iv) The division shall complete and file its assessment regarding placement with a
             116      relative as soon as practicable, in an effort to facilitate placement of the child with a relative.
             117          (c) The court may place the child in the temporary custody of the division, pending the
             118      division's investigation pursuant to Subsection (5)(b), and the court's determination regarding
             119      that placement. The court shall ultimately base its determination regarding placement with a
             120      relative on the best interest of the child.


             121          (d) For purposes of this section, "relative" means an adult who is a grandparent, great
             122      grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, first
             123      cousin, stepsibling, or sibling of the child. In the case of a child defined as an "Indian" under
             124      the Indian Child Welfare Act, 25 U.S.C. Section 1903, "relative" also means an "extended
             125      family member" as defined by that statute.
             126          (6) (a) When the court vests physical custody of a child with a relative pursuant to
             127      Subsection (5), it shall order that the relative assume custody subject to the continuing
             128      supervision of the court, and shall order that any necessary services be provided to the child
             129      and the relative. That child is not within the temporary custody or custody of the Division of
             130      Child and Family Services. The child and any relative with whom the child is placed are under
             131      the continuing jurisdiction of the court. The court may enter any order that it considers
             132      necessary for the protection and best interest of the child. The court shall provide for
             133      reasonable parent-time with the parent or parents from whose custody the child was removed
             134      unless parent-time is not in the best interest of the child.
             135          (b) (i) Placement with a relative pursuant to Subsection (5) shall be periodically
             136      reviewed by the court, no less often than every six months, to determine whether:
             137          (A) placement with the relative continues to be in the child's best interest;
             138          (B) the child should be returned home; or
             139          (C) the child should be placed in the custody of the division.
             140          (ii) No later than 12 months after placement with a relative the court shall schedule a
             141      hearing for the purpose of entering a permanent order in accordance with the best interest of the
             142      child.
             143          (iii) The time limitations described in Section 78-3a-311 , with regard to reunification
             144      efforts, apply to children placed with a relative pursuant to Subsection (5).
             145          (7) When the court orders that a child be removed from the custody of the child's
             146      parent and does not vest custody in another parent or relative under this section, the court shall
             147      order that the child be placed in the temporary custody of the Division of Child and Family
             148      Services, to proceed to adjudication and disposition and to be provided with care and services
             149      in accordance with this chapter and Title 62A, Chapter 4a, Child and Family Services.
             150          (8) (a) Any preferential consideration that a relative is initially granted pursuant to
             151      Subsection (5) expires 120 days from the date of the shelter hearing. After that time period has


             152      expired, a relative who has not obtained custody or asserted an interest in a child, may not be
             153      granted preferential consideration by the division or the court.
             154          (b) When the time period described in Subsection (8)(a) has expired, the preferential
             155      consideration which is initially granted to a natural parent in accordance with Subsection (1), is
             156      limited. After that time the court shall base its custody decision on the best interest of the
             157      child.
             158          (9) If, following the shelter hearing, H. [ the court decides to place ] .H the child H. is
             158a      placed .H with a person
             159      who is not a parent, relative, or former foster parent of the child, H. [ the court, and the Division of
             160      Child and Family Services, shall give
] .H
priority H. shall be given .H to a foster placement
             160a      with a man and a woman
             161      who are married to each other, unless it is in the best interests of the child to place the child
             162      with a single foster parent.
             163          (10) In determining the placement of a child, neither the court, nor the Division of
             164      Child and Family Services, may take into account, or discriminate against, the religion of a
             165      person with whom the child may be placed, unless the purpose of taking religion into account
             166      is to place the child with a person or family of the same religion as the child.
             167          Section 2. Section 78-30-1 is amended to read:
             168           78-30-1. Who may adopt -- Adoption of minor -- Adoption of adult -- Priority
             169      among adoptive parents.
             170          (1) Any minor child may be adopted by an adult person, in accordance with the
             171      provisions and requirements of this section and this chapter.
             172          (2) Any adult may be adopted by another adult. However, all provisions of this chapter
             173      apply to the adoption of an adult just as though the person being adopted were a minor, except
             174      that consent of the parents of an adult person being adopted is not required.
             175          (3) (a) A child may be adopted by:
             176          (i) adults who are legally married to each other in accordance with the laws of this
             177      state, including adoption by a stepparent; or
             178          (ii) subject to Subsection (4), any single adult, except as provided in Subsection (3)(b).
             179          (b) A child may not be adopted by a person who is cohabiting in a relationship that is
             180      not a legally valid and binding marriage under the laws of this state. For purposes of this
             181      Subsection (3)(b), "cohabiting" means residing with another person and being involved in a


             182      sexual relationship with that person.


             183          (4) In order to provide a child who is in the custody of the division with the most
             184      beneficial family structure, when a child in the custody of the division is placed for adoption,
             185      the division or child-placing agency shall place the child with a man and a woman who are
             186      married to each other, unless:
             187          (a) there are no qualified married couples who:
             188          (i) have applied to adopt a child;
             189          (ii) are willing to adopt the child; and
             190          (iii) are an appropriate placement for the child;
             191          (b) the child is placed with a relative of the child;
             192          (c) the child is placed with a person who has already developed a substantial
             193      relationship with the child;
             194          (d) the child is placed with a person who:
             195          (i) is selected by a parent or former parent of the child, if the parent or former parent
             196      consented to the adoption of the child; and
             197          (ii) the parent or former parent described in Subsection (4)(d)(i):
             198          (A) knew the person with whom the child is placed before the parent consented to the
             199      adoption; or
             200          (B) became aware of the person with whom the child is placed through a source other
             201      than the division or the child-placing agency that assists with the adoption of the child; or
             202          (e) it is in the best interests of the child to place the child with a single person.
             202a           H. Section 3. Coordinating H.B. 343 with H.B. 328 -- Substantive and technical
             202b      amendments.
             202c          If this H.B. 343 and H.B. 328, Child Protection and Parental Rights Amendments, both
             202d      pass, it is the intent of the Legislature that the Office of Legislative Research and General
             202e      Counsel shall prepare the Utah Code database for publication by amending Subsection
             202f      78-3a-307(9) to read:
             202g          (9) If, following the shelter hearing, the child is placed with a person who is not a
             202h      parent of the child, a relative of the child, a friend of a parent of the child, or a former foster
             202i      parent of the child, priority shall be given to a foster placement with a man and a woman who
             202j      are married to each other, unless it is in the best interests of the child to place the child with a
             202k      single foster parent. .H




Legislative Review Note
    as of 1-23-07 5:04 PM



Office of Legislative Research and General Counsel



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