Second Substitute S.B. 278

Representative Douglas C. Aagard proposes the following substitute bill:

1 TECHNICAL AMENDMENTS TO TITLES
2 78A AND 78B
3 2008 GENERAL SESSION
4 STATE OF UTAH
5 Chief Sponsor: Gregory S. Bell
6 House Sponsor: Douglas C. Aagard
7
8 LONG TITLE
9 General Description:
10 This bill makes technical and coordinating amendments to Titles 78A and 78B that
11 were missed in the recodification process.
12 Highlighted Provisions:
13 This bill:
14 . repeals provisions overlooked in the recodification process;
15 . coordinates with legislation already passed;
16 . amends a section to correct missing language;
17 . creates transition and savings clauses; and
18 . makes technical cross-reference changes.
19 Monies Appropriated in this Bill:
20 None
21 Other Special Clauses:
22 This bill provides an immediate effective date and retrospective operation.
23 This bill coordinates with S.B. 16, Exoneration and Innocence Assistance, providing for
24 technical renumbering.
25 Utah Code Sections Affected:

26 AMENDS:
27 78B-2-113, as renumbered and amended by Laws of Utah 2008, Chapter 3
28 78B-6-121, as enacted by Laws of Utah 2008, Chapter 3
29 78B-6-122, as enacted by Laws of Utah 2008, Chapter 3
30 78B-6-901, as renumbered and amended by Laws of Utah 2008, Chapter 3
31 ENACTS:
32 78A-1-106, Utah Code Annotated 1953
33 78A-1-107, Utah Code Annotated 1953
34 RENUMBERS AND AMENDS:
35 78A-6-1220, (Renumbered from 78-57-110, as enacted by Laws of Utah 1999, Chapter
36 94)
37 REPEALS:
38 78-3a-115.1, as last amended by Laws of Utah 2004, Chapter 324
39 78-11-20.5, as last amended by Laws of Utah 1997, Chapter 365
40 78-11-21, as enacted by Laws of Utah 1977, Chapter 181
41 78-35-5, as last amended by Laws of Utah 1991, Chapter 241
42 78-45f-902, as enacted by Laws of Utah 2000, Chapter 161
43
44 Be it enacted by the Legislature of the state of Utah:
45 Section 1. Section 78A-1-106 is enacted to read:
46 78A-1-106. Transition clause -- Recodification of Title 78.
47 For purposes of a matter pending in any court beginning February 7, 2008 through
48 August 31, 2008, citation to an appropriate section in the previous Title 78, Judicial Code, shall
49 be considered a proper citation to the corresponding section in Title 78A, Judiciary and Judicial
50 Administration, or Title 78B, Judicial Code.
51 Section 2. Section 78A-1-107 is enacted to read:
52 78A-1-107. Savings clause -- Recodification of Title 78.
53 The provisions of Title 78A, Judiciary and Judicial Administration, and Title 78B,
54 Judicial Code, are considered a continuation of the previous Title 78, Judicial Code. No loss of
55 rights, interruption of jurisdiction, or prejudice to matters pending in any court on February 7,
56 2008 shall result from the enactment of Titles 78A and 78B. With respect to the organization

57 of the courts, the offices of all officers and employees, shall be construed as continuations of
58 the previous Title 78, Judicial Code. The tenure of justices, judges, justices of the peace,
59 officers, and employees of the courts in office on February 7, 2008 is not affected by its
60 enactment.
61 Section 3. Section 78A-6-1220 , which is renumbered from Section 78-57-110 is
62 renumbered and amended to read:
63 [78-57-110]. 78A-6-1220. School credit.
64 Local school boards may provide school credit for participation as a member of a Youth
65 Court.
66 Section 4. Section 78B-2-113 is amended to read:
67 78B-2-113. Effect of payment, acknowledgment, or promise to pay.
68 [(1) An action based on a contract may not be brought without the defendant's
69 agreement in writing if the defendant has:]
70 [(a) paid any portion of the principal or interest; or]
71 [(b) acknowledged the debt or claim in writing.]
72 (1) An action for recovery of a debt may be brought within the applicable statute of
73 limitations from the date:
74 (a) the debt arose;
75 (b) a written acknowledgment of the debt or a promise to pay is made by the debtor; or
76 (c) a payment is made on the debt by the debtor.
77 (2) If a right of action is barred by the provisions of any statute, it shall be unavailable
78 either as a cause of action or ground for defense.
79 Section 5. Section 78B-6-121 is amended to read:
80 78B-6-121. Consent of unmarried biological father.
81 (1) Except as provided in Subsections (2)(a) and [ 76B-6-122 ] 78B-6-122 (1), and
82 subject to Subsection (5), with regard to a child who is placed with adoptive parents more than
83 six months after birth, consent of an unmarried biological father is not required unless the
84 unmarried biological father:
85 (a) (i) developed a substantial relationship with the child by:
86 (A) visiting the child monthly, unless the unmarried biological father was physically or
87 financially unable to visit the child on a monthly basis; or

88 (B) engaging in regular communication with the child or with the person or authorized
89 agency that has lawful custody of the child;
90 (ii) took some measure of responsibility for the child and the child's future; and
91 (iii) demonstrated a full commitment to the responsibilities of parenthood by financial
92 support of the child of a fair and reasonable sum in accordance with the father's ability; or
93 (b) (i) openly lived with the child:
94 (A) (I) for a period of at least six months during the one-year period immediately
95 preceding the day on which the child is placed with adoptive parents; or
96 (II) if the child is less than one year old, for a period of at least six months during the
97 period of time beginning on the day on which the child is born and ending on the day on which
98 the child is placed with adoptive parents; and
99 (B) immediately preceding placement of the child with adoptive parents; and
100 (ii) openly held himself out to be the father of the child during the six-month period
101 described in Subsection (1)(b)(i)(A).
102 (2) (a) If an unmarried biological father was prevented from complying with a
103 requirement of Subsection (1) by the person or authorized agency having lawful custody of the
104 child, the unmarried biological father is not required to comply with that requirement.
105 (b) The subjective intent of an unmarried biological father, whether expressed or
106 otherwise, that is unsupported by evidence that the requirements in Subsection (1) have been
107 met, shall not preclude a determination that the father failed to meet the requirements of
108 Subsection (1).
109 (3) Except as provided in Subsection 78B-6-122 (1), and subject to Subsection (5), with
110 regard to a child who is six months of age or less at the time the child is placed with adoptive
111 parents, consent of an unmarried biological father is not required unless, prior to the time the
112 mother executes her consent for adoption or relinquishes the child for adoption, the unmarried
113 biological father:
114 (a) initiates proceedings in a district court of the state to establish paternity under Title
115 78B, Chapter 15, Utah Uniform Parentage Act;
116 (b) files with the court that is presiding over the paternity proceeding a sworn affidavit:
117 (i) stating that he is fully able and willing to have full custody of the child;
118 (ii) setting forth his plans for care of the child; and

119 (iii) agreeing to a court order of child support and the payment of expenses incurred in
120 connection with the mother's pregnancy and the child's birth;
121 (c) consistent with Subsection (4), files notice of the commencement of paternity
122 proceedings, described in Subsection (3)(a), with the state registrar of vital statistics within the
123 Department of Health, in a confidential registry established by the department for that purpose;
124 and
125 (d) offered to pay and paid a fair and reasonable amount of the expenses incurred in
126 connection with the mother's pregnancy and the child's birth, in accordance with his financial
127 ability, unless:
128 (i) he did not have actual knowledge of the pregnancy;
129 (ii) he was prevented from paying the expenses by the person or authorized agency
130 having lawful custody of the child; or
131 (iii) the mother refuses to accept the unmarried biological father's offer to pay the
132 expenses described in this Subsection (3)(d).
133 (4) The notice described in Subsection (3)(c) is considered filed when it is entered into
134 the registry described in Subsection (3)(c).
135 (5) Consent of an unmarried biological father is not required under this section if:
136 (a) the court determines, in accordance with the requirements and procedures of Title
137 78A, Chapter 6, Part 5, Termination of Parental Rights Act, that the unmarried biological
138 father's rights should be terminated, based on the petition of any interested party; or
139 (b) (i) a declaration of paternity declaring the unmarried biological father to be the
140 father of the child is rescinded under Section 78B-15-306 ; and
141 (ii) the unmarried biological father fails to comply with Subsection (3) within ten
142 business days after the day that notice of the rescission described in Subsection (5)(b)(i) is
143 mailed by the Office of Vital Records within the Department of Health as provided in Section
144 78B-15-306 .
145 (6) Unless the adoptee is conceived or born within a marriage, the petitioner in an
146 adoption proceeding shall, prior to entrance of a final decree of adoption, file with the court a
147 certificate from the state registrar of vital statistics within the Department of Health, stating:
148 (a) that a diligent search has been made of the registry of notices from unmarried
149 biological fathers described in Subsection (3)(c); and

150 (b) (i) that no filing has been found pertaining to the father of the child in question; or
151 (ii) if a filing is found, the name of the putative father and the time and date of filing.
152 Section 6. Section 78B-6-122 is amended to read:
153 78B-6-122. Qualifying circumstance.
154 (1) (a) For purposes of this section, "qualifying circumstance" means that, at any point
155 during the time period beginning at the conception of the child and ending at the time the
156 mother executed a consent to adoption or relinquishment of the child for adoption:
157 (i) the child or the child's mother resided, on a permanent or temporary basis, in the
158 state;
159 (ii) the mother intended to give birth to the child in the state;
160 (iii) the child was born in the state; or
161 (iv) the mother intended to execute a consent to adoption or relinquishment of the child
162 for adoption:
163 (A) in the state; or
164 (B) under the laws of the state.
165 (b) For purposes of Subsection (1)(c)(i), a court shall consider the totality of the
166 circumstances when determining whether an unmarried biological father has demonstrated a
167 full commitment to his parental responsibilities, including, if applicable:
168 (i) efforts he has taken to discover the location of the child or the child's mother;
169 (ii) whether he has expressed or demonstrated an interest in taking responsibility for
170 the child;
171 (iii) whether, and to what extent, he has developed, or attempted to develop, a
172 relationship with the child;
173 (iv) whether he offered to provide and, if the offer was accepted, did provide, financial
174 support for the child or the child's mother;
175 (v) whether, and to what extent, he has communicated, or attempted to communicate,
176 with the child or the child's mother;
177 (vi) whether he has filed legal proceedings to establish his paternity of, and take
178 responsibility for, the child;
179 (vii) whether he has filed a notice with a public official or agency relating to:
180 (A) his paternity of the child; or

181 (B) legal proceedings to establish his paternity of the child; or
182 (viii) other evidence that demonstrates that he has demonstrated a full commitment to
183 his parental responsibilities.
184 (c) Notwithstanding the provisions of Section 78B-6-121 , the consent of an unmarried
185 biological father is required with respect to an adoptee who is under the age of 18 if:
186 (i) (A) the unmarried biological father did not know, and through the exercise of
187 reasonable diligence could not have known, before the time the mother executed a consent to
188 adoption or relinquishment of the child for adoption, that a qualifying circumstance existed;
189 (B) before the mother executed a consent to adoption or relinquishment of the child for
190 adoption, the unmarried biological father fully complied with the requirements to establish
191 parental rights in the child, and to preserve the right to notice of a proceeding in connection
192 with the adoption of the child, imposed by:
193 (I) the last state where the unmarried biological father knew, or through the exercise of
194 reasonable diligence should have known, that the mother resided in before the mother executed
195 the consent to adoption or relinquishment of the child for adoption; or
196 (II) the state where the child was conceived; and
197 (C) the unmarried biological father has demonstrated, based on the totality of the
198 circumstances, a full commitment to his parental responsibilities, as described in Subsection
199 (1)(b); or
200 (ii) (A) the unmarried biological father knew, or through the exercise of reasonable
201 diligence should have known, before the time the mother executed a consent to adoption or
202 relinquishment of the child for adoption, that a qualifying circumstance existed; and
203 (B) the unmarried biological father complied with the requirements of Section
204 78B-6-121 before the later of:
205 (I) 20 days after the day that the unmarried biological father knew, or through the
206 exercise of reasonable diligence should have known, that a qualifying circumstance existed; or
207 (II) the time that the mother executed a consent to adoption or relinquishment of the
208 child for adoption.
209 (2) An unmarried biological father who does not fully and strictly comply with the
210 requirements of Section 78B-6-121 and this section is considered to have waived and
211 surrendered any right in relation to the child, including the right to:

212 (a) notice of any judicial proceeding in connection with the adoption of the child; and
213 (b) consent, or refuse to consent, to the adoption of the child.
214 Section 7. Section 78B-6-901 is amended to read:
215 78B-6-901. Form of action -- Judgment -- Special execution.
216 [(1) Recovery and enforcement of rights secured by a mortgage on real property may
217 only be pursued according to the provisions of this part.]
218 (1) There is only one action for the recovery of any debt or the enforcement of any right
219 secured solely by mortgage upon real estate and that action shall be in accordance with the
220 provisions of this chapter.
221 (2) A judgment shall include:
222 (a) the amount due, with costs and disbursements;
223 (b) an order for the sale of mortgaged property, or a portion of it to satisfy the amount
224 and accruing costs;
225 (c) direction to the sheriff to proceed and sell the property according to the provisions
226 of law relating to sales on execution; and
227 (d) a special execution or order of sale shall be issued for that purpose.
228 Section 8. Repealer.
229 This bill repeals:
230 Section 78-3a-115.1, Access to abuse, neglect, and dependency hearings.
231 Section 78-11-20.5, Criminal conviction for criminal mischief or criminal trespass
232 not a prerequisite for civil action under chapter.
233 Section 78-11-21, Property damage caused by minor -- When parent or guardian
234 not liable.
235 Section 78-35-5, Penalties for wrongful acts of defendant.
236 Section 78-45f-902, Severability clause.
237 Section 9. Effective date -- Retrospective operation.
238 (1) If approved by two-thirds of all the members elected to each house, this bill takes
239 effect upon approval by the governor, or the day following the constitutional time limit of Utah
240 Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
241 the date of veto override.
242 (2) This bill has retrospective operation to February 7, 2008.

243 Section 10. Coordinating S.B. 278 with S.B. 16 -- Technical renumbering.
244 If this S.B. 278 and S.B. 16, Exoneration and Innocence Assistance, both pass, it is the
245 intent of the Legislature that the following sections in S.B. 16 be renumbered as follows:
246 (1) Section 78-35a-300.5 be renumbered to 78B-9-300 ;
247 (2) Section 78-35a-401 be renumbered to 78B-9-401 ;
248 (3) Section 78-35a-402 be renumbered to 78B-9-402 ;
249 (4) Section 78-35a-403 be renumbered to 78B-9-403 ;
250 (5) Section 78-35a-404 be renumbered to 78B-9-404 ; and
251 (6) Section 78-35a-405 be renumbered to 78B-9-405 .