This document includes House Committee Amendments incorporated into the bill on Fri, Mar 4, 2016 at 10:53 AM by lsjones.
Senator Wayne A. Harper proposes the following substitute bill:


1     
CHILD WELFARE MODIFICATIONS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: Edward H. Redd

6     

7     LONG TITLE
8     General Description:
9          This bill amends and enacts provisions concerning child and family services.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends the name of the Child Abuse Advisory Council to the Child Welfare
13     Improvement Council;
14          ▸     requires child welfare caseworkers within the Division of Child and Family
15     Services (the division) to use evidence-informed or evidence-based safety and risk
16     assessments to guide decisions concerning a child throughout a child protection
17     investigation or proceeding;
18          ▸     requires a juvenile court to consider the division's safety and risk assessments to
19     determine whether a child should be removed from the custody of the child's parent
20     or guardian;
21          ▸     modifies the division's requirements for completing background checks before
22     placing a child in emergency placement;
23          ▸     requires the division, through contract with the Department of Health, to establish
24     and operate a psychotropic medication oversight pilot program for children in foster
25     care to ensure that foster children are being prescribed psychotropic medication
26     consistent with their needs;
27          ▸     provides for sunset review of the psychotropic medication oversight pilot program
28     before it is repealed July 1, 2019;
29          ▸     modifies the Utah Criminal Code regarding the offenses of human trafficking and
30     human trafficking of a child;
31          ▸     provides that a juvenile court may order another planned permanent living
32     arrangement for a minor 16 years old or older under certain circumstances; and
33          ▸     makes technical and conforming changes.
34     Money Appropriated in this Bill:
35          None
36     Other Special Clauses:
37          None
38     Utah Code Sections Affected:
39     AMENDS:
40          62A-4a-117, as last amended by Laws of Utah 2012, Chapter 242
41          62A-4a-209, as last amended by Laws of Utah 2015, Chapters 142 and 255
42          62A-4a-302, as last amended by Laws of Utah 2008, Chapter 299
43          62A-4a-311, as last amended by Laws of Utah 2010, Chapters 278 and 286
44          63I-1-262, as last amended by Laws of Utah 2014, Chapter 226
45          76-5-308, as last amended by Laws of Utah 2013, Chapter 196
46          76-5-308.5, as enacted by Laws of Utah 2015, Chapter 160
47          78A-6-302, as last amended by Laws of Utah 2015, Chapter 274
48          78A-6-312, as last amended by Laws of Utah 2015, Chapters 274 and 322
49          78A-6-314, as last amended by Laws of Utah 2015, Chapter 322
50     ENACTS:
51          62A-4a-203.1, Utah Code Annotated 1953
52          62A-4a-213, Utah Code Annotated 1953
53     

54     Be it enacted by the Legislature of the state of Utah:
55          Section 1. Section 62A-4a-117 is amended to read:
56          62A-4a-117. Performance monitoring system -- Annual report.
57          (1) As used in this section:
58          (a) "[Committee] Council" means the [state qualitative improvement committee,]
59     Child Welfare Improvement Council established [by the division to provide community and
60     professional input on the performance of the division] under Section 62A-4a-311.
61          (b) "Performance indicators" means actual performance in a program, activity, or other
62     function for which there is a performance standard.
63          (c) (i) "Performance standards" means the targeted or expected level of performance of
64     each area in the child welfare system, including:
65          (A) child protection services;
66          (B) adoption;
67          (C) foster care; and
68          (D) other substitute care.
69          (ii) "Performance standards" includes the performance goals and measures in effect in
70     2008 that the division was subject to under federal court oversight, as amended pursuant to
71     Subsection (2), including:
72          (A) the qualitative case review; and
73          (B) the case process review.
74          (2) (a) The division may not amend the performance standards unless the amendment
75     is:
76          (i) necessary and proper for the effective administration of the division; or
77          (ii) necessary to comply with, or implement changes in, the law.
78          (b) Before amending the performance standards, the division shall provide written
79     notice of the proposed amendment to the [committee] council.
80          (c) The notice described in Subsection (2)(b) shall include:
81          (i) the proposed amendment;
82          (ii) a summary of the reason for the proposed amendment; and
83          (iii) the proposed effective date of the amendment.
84          (d) Within 45 days after the day on which the division provides the notice described in
85     Subsection (2)(b) to the [committee, the committee] council, the council shall provide to the
86     division written comments on the proposed amendment.
87          (e) The division may not implement a proposed amendment to the performance
88     standards until the earlier of:
89          (i) seven days after the day on which the division receives the written comments
90     regarding the proposed change described in Subsection (2)(d); or
91          (ii) 52 days after the day on which the division provides the notice described in
92     Subsection (2)(b) to the [committee] council.
93          (f) The division shall:
94          (i) give full, fair, and good faith consideration to all comments and objections received
95     from the [committee] council;
96          (ii) notify the [committee] council in writing of:
97          (A) the division's decision regarding the proposed amendment; and
98          (B) the reasons that support the decision;
99          (iii) include complete information on all amendments to the performance standards in
100     the report described in Subsection (4); and
101          (iv) post the changes on the division's website.
102          (3) The division shall maintain a performance monitoring system to regularly:
103          (a) collect information on performance indicators; and
104          (b) compare performance indicators to performance standards.
105          (4) Before January 1 each year the director shall submit a written report to the Child
106     Welfare Legislative Oversight Panel and the Social Services Appropriations Subcommittee that
107     includes:
108          (a) a comparison between the performance indicators for the prior fiscal year and the
109     performance standards;
110          (b) for each performance indicator that does not meet the performance standard:
111          (i) the reason the standard was not met;
112          (ii) the measures that need to be taken to meet the standard; and
113          (iii) the division's plan to comply with the standard for the current fiscal year;
114          (c) data on the extent to which new and experienced division employees have received
115     training pursuant to statute and division policy; and
116          (d) an analysis of the use and efficacy of in-home services, both before and after
117     removal of a child from the child's home.
118          Section 2. Section 62A-4a-203.1 is enacted to read:
119          62A-4a-203.1. Safety and risk assessments.
120          (1) Child welfare caseworkers within the division shall use evidence-informed or
121     evidence-based safety and risk assessments to guide decisions concerning a child throughout a
122     child protection investigation or proceeding.
123          (2) As part of the evidence-informed or evidence-based safety and risk assessments, the
124     division shall assess at least the following:
125          (a) threat Ĥ→ [of harm to a child] to a child's safety ←Ĥ ;
126          (b) protective capabilities of a Ĥ→ [child's parent or guardian] parent or guardian,
126a     including the parent or guardian's readiness, willingness, and ability to plan for the child's
126b     safety ←Ĥ ;
127          (c) a child's particular vulnerabilities;
128          (d) interventions required to protect a child; and
129          (e) likelihood of future harm to a child.
130          Section 3. Section 62A-4a-209 is amended to read:
131          62A-4a-209. Emergency placement.
132          (1) As used in this section:
133          (a) "Friend" means the same as that term is defined in Subsection 78A-6-307(1)(a).
134          (b) "Nonrelative" means an individual, other than a noncustodial parent or a relative.
135          (c) "Relative" means the same as that term is defined in Subsection 78A-6-307(1)(c).
136          (2) The division may use an emergency placement under Subsection
137     62A-4a-202.1(4)(b)(ii) when:
138          (a) the case worker has made the determination that:
139          (i) the child's home is unsafe;
140          (ii) removal is necessary under the provisions of Section 62A-4a-202.1; and
141          (iii) the child's custodial parent or guardian will agree to not remove the child from the
142     home of the person that serves as the placement and not have any contact with the child until
143     after the shelter hearing required by Section 78A-6-306;
144          (b) a person, with preference being given in accordance with Subsection (4), can be
145     identified who has the ability and is willing to provide care for the child who would otherwise
146     be placed in shelter care, including:
147          (i) taking the child to medical, mental health, dental, and educational appointments at
148     the request of the division; and
149          (ii) making the child available to division services and the guardian ad litem; and
150          (c) the person described in Subsection (2)(b) agrees to care for the child on an
151     emergency basis under the following conditions:
152          (i) the person meets the criteria for an emergency placement under Subsection (3);
153          (ii) the person agrees to not allow the custodial parent or guardian to have any contact
154     with the child until after the shelter hearing unless authorized by the division in writing;
155          (iii) the person agrees to contact law enforcement and the division if the custodial
156     parent or guardian attempts to make unauthorized contact with the child;
157          (iv) the person agrees to allow the division and the child's guardian ad litem to have
158     access to the child;
159          (v) the person has been informed and understands that the division may continue to
160     search for other possible placements for long-term care, if needed;
161          (vi) the person is willing to assist the custodial parent or guardian in reunification
162     efforts at the request of the division, and to follow all court orders; and
163          (vii) the child is comfortable with the person.
164          (3) Except as otherwise provided in Subsection (5), before the division places a child
165     in an emergency placement, the division:
166          (a) may request the name of a reference and may contact the reference to determine the
167     answer to the following questions:
168          (i) would the person identified as a reference place a child in the home of the
169     emergency placement; and
170          (ii) are there any other relatives or friends to consider as a possible emergency or
171     long-term placement for the child;
172          (b) shall have the custodial parent or guardian sign an emergency placement agreement
173     form during the investigation;
174          (c) (i) if the emergency placement will be with a relative of the child, shall comply with
175     the background check provisions described in Subsection (7); or
176          (ii) if the emergency placement will be with a person other than a noncustodial parent
177     or a relative, shall comply with the [criminal] background check provisions described in
178     [Section 78A-6-308] Subsection (8) for adults living in the household where the child will be
179     placed;
180          (d) shall complete a limited home inspection of the home where the emergency
181     placement is made; and
182          (e) shall have the emergency placement approved by a family service specialist.
183          (4) (a) The following order of preference shall be applied when determining the person
184     with whom a child will be placed in an emergency placement described in this section,
185     provided that the person is willing, and has the ability, to care for the child:
186          (i) a noncustodial parent of the child in accordance with Section 78A-6-307;
187          (ii) a relative of the child;
188          (iii) subject to Subsection (4)(b), a friend designated by the custodial parent or
189     guardian of the child; and
190          (iv) a shelter facility, former foster placement, or other foster placement designated by
191     the division.
192          (b) Unless the division agrees otherwise, the custodial parent or guardian described in
193     Subsection (4)(a)(iii) may designate up to two friends as a potential emergency placement.
194          (5) (a) The division may, pending the outcome of the investigation described in
195     Subsections (5)(b) and (c), place a child in emergency placement with the child's noncustodial
196     parent if, based on a limited investigation, prior to making the emergency placement, the
197     division:
198          (i) determines that the noncustodial parent has regular, unsupervised visitation with the
199     child that is not prohibited by law or court order;
200          (ii) determines that there is not reason to believe that the child's health or safety will be
201     endangered during the emergency placement; and
202          (iii) has the custodial parent or guardian sign an emergency placement agreement.
203          (b) Either before or after making an emergency placement with the noncustodial parent
204     of the child, the division may conduct the investigation described in Subsection (3)(a) in
205     relation to the noncustodial parent.
206          (c) Before, or within one day, excluding weekends and holidays, after a child is placed
207     in an emergency placement with the noncustodial parent of the child, the division shall conduct
208     a limited:
209          (i) background check of the noncustodial parent, pursuant to Subsection (7); and
210          (ii) inspection of the home where the emergency placement is made.
211          (6) After an emergency placement, the division caseworker must:
212          (a) respond to the emergency placement's calls within one hour if the custodial parents
213     or guardians attempt to make unauthorized contact with the child or attempt to remove the
214     child;
215          (b) complete all removal paperwork, including the notice provided to the custodial
216     parents and guardians under Section 78A-6-306;
217          (c) contact the attorney general to schedule a shelter hearing;
218          (d) complete the placement procedures required in Section 78A-6-307; and
219          (e) continue to search for other relatives as a possible long-term placement, if needed.
220          (7) (a) The background check described in Subsection (3)(c)(i) shall include
221     completion of:
222          (i) [completion of a nonfingerprint-based] a name-based, Utah Bureau of Criminal
223     Identification background check; and
224          (ii) a [completed] search of the Management Information System described in Section
225     62A-4a-1003.
226          (b) The division shall determine whether a person passes the background check
227     described in this Subsection (7) pursuant to the provisions of Subsection 62A-2-120(13).
228          (c) Notwithstanding Subsection (7)(b), the division may not place a child with an
229     individual who is prohibited by court order from having access to that child.
230          (8) (a) The background check described in Subsection (3)(c)(ii) shall include
231     completion of:
232          (i) a name-based, Utah Bureau of Criminal Identification background check;
233          (ii) a federal name-based criminal background check; and
234          (iii) a search of the Management Information System described in Section
235     62A-4a-1003.
236          (b) The division shall determine whether a person passes the background checks
237     described in this Subsection (8) pursuant to the provisions of Subsection 62A-2-120.
238          (c) If the division denies placement of a child as a result of a name-based criminal
239     background check described in Subsection (8)(a), and the person contests that denial, the
240     person shall submit a complete set of fingerprints with written permission to the Utah Bureau
241     of Criminal Identification for submission to the Federal Bureau of Investigation for a
242     fingerprint-based criminal background check.
243          (d) (i) Within 15 calendar days of the name-based background checks, the division
244     shall require a person to provide a complete set of fingerprints with written permission to the
245     Utah Bureau of Criminal Identification for submission to the Federal Bureau of Investigation
246     for a fingerprint-based criminal background check.
247          (ii) If a person fails to provide the fingerprints and written permission described in
248     Subsection (8)(d)(i), the child shall immediately be removed from the home.
249          Section 4. Section 62A-4a-213 is enacted to read:
250          62A-4a-213. Psychotropic medication oversight pilot program.
251          (1) As used in this section, "psychotropic medication" means medication prescribed to
252     affect or alter thought processes, mood, or behavior, including antipsychotic, antidepressant,
253     anxiolytic, or behavior medication.
254          (2) The division shall, through contract with the Department of Health, establish and
255     operate a psychotropic medication oversight pilot program for children in foster care to ensure
256     that foster children are being prescribed psychotropic medication consistent with their needs.
257          (3) The division shall establish an oversight team to manage the psychotropic
258     medication oversight program, composed of at least the following individuals:
259          (a) an "advanced practice registered nurse," as defined in Subsection 58-31b-102(13),
260     employed by the Department of Health; and
261          (b) a child psychiatrist.
262          (4) The oversight team shall monitor foster children:
263          (a) six years old or younger who are being prescribed one or more psychotropic
264     medications; and
265          (b) seven years old or older who are being prescribed two or more psychotropic
266     medications.
267          (5) The oversight team shall, upon request, be given information or records related to
268     the foster child's health care history, including psychotropic medication history and mental and
269     behavioral health history, from:
270          (a) the foster child's current or past caseworker;
271          (b) the foster child; or
272          (c) the foster child's:
273          (i) current or past health care provider;
274          (ii) natural parents; or
275          (iii) foster parents.
276          (6) The oversight team may review and monitor the following information about a
277     foster child:
278          (a) the foster child's history;
279          (b) the foster child's health care, including psychotropic medication history and mental
280     or behavioral health history;
281          (c) whether there are less invasive treatment options available to meet the foster child's
282     needs;
283          (d) the dosage or dosage range and appropriateness of the foster child's psychotropic
284     medication;
285          (e) the short-term or long-term risks associated with the use of the foster child's
286     psychotropic medication; or
287          (f) the reported benefits of the foster child's psychotropic medication.
288          (7) (a) The oversight team may make recommendations to the foster child's health care
289     providers concerning the foster child's psychotropic medication or the foster child's mental or
290     behavioral health.
291          (b) The oversight team shall provide the recommendations made in Subsection (7)(a)
292     to the foster child's parent or guardian after discussing the recommendations with the foster
293     child's current health care providers.
294          (8) The division may adopt administrative rules in accordance with Title 63G, Chapter
295     3, Utah Administrative Rulemaking Act, necessary to administer this section.
296          Section 5. Section 62A-4a-302 is amended to read:
297          62A-4a-302. Definitions.
298          As used in this part, "council" means the [Child Abuse Advisory] Child Welfare
299     Improvement Council established under Section 62A-4a-311.
300          Section 6. Section 62A-4a-311 is amended to read:
301          62A-4a-311. Child Welfare Improvement Council -- Creation -- Membership --
302     Expenses.
303          (1) (a) There is established the [Child Abuse Advisory] Child Welfare Improvement
304     Council composed of no more than 25 members who are appointed by the division.
305          (b) Except as required by Subsection (1)(c), as terms of current council members
306     expire, the division shall appoint each new member or reappointed member to a four-year term.
307          (c) Notwithstanding the requirements of Subsection (1)(b), the division shall, at the
308     time of appointment or reappointment, adjust the length of terms to ensure that the terms of
309     council members are staggered so that approximately half of the council is appointed every two
310     years.
311          (d) The council shall have geographic, economic, gender, cultural, and philosophical
312     diversity.
313          (e) When a vacancy occurs in the membership for any reason, the replacement shall be
314     appointed for the unexpired term.
315          (2) The council shall elect a chairperson from its membership at least biannually.
316          (3) A member may not receive compensation or benefits for the member's service, but
317     may receive per diem and travel expenses in accordance with:
318          (a) Section 63A-3-106;
319          (b) Section 63A-3-107; and
320          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
321     63A-3-107.
322          (4) (a) The council shall hold a public meeting quarterly.
323          (b) Within budgetary constraints, meetings may also be held on the call of the chair, or
324     of a majority of the members.
325          (c) A majority of the members currently appointed to the council constitute a quorum
326     at any meeting and the action of the majority of the members present shall be the action of the
327     council.
328          (5) The council shall:
329          (a) advise the division on matters relating to abuse and neglect; [and]
330          (b) recommend to the division how funds contained in the Children's Account should
331     be allocated; and
332          (c) provide community and professional input on the performance of the division.
333          Section 7. Section 63I-1-262 is amended to read:
334          63I-1-262. Repeal dates, Title 62A.
335          [(1) Section 62A-2-120.5, Pilot program for expedited background check of a qualified
336     human services applicant, is repealed July 1, 2017.]
337          (1) Section 62A-4a-213 is repealed July 1, 2019.
338          (2) Subsection 62A-15-1101(5) is repealed July 1, 2018.
339          Section 8. Section 76-5-308 is amended to read:
340          76-5-308. Human trafficking -- Human smuggling.
341          (1) An actor commits human trafficking for forced labor or forced sexual exploitation
342     if the actor recruits, harbors, transports, [or] obtains, patronizes, or solicits a person through the
343     use of force, fraud, or coercion by means of:
344          (a) threatening serious harm to, or physical restraint against, that person or a third
345     person;
346          (b) destroying, concealing, removing, confiscating, or possessing any passport,
347     immigration document, or other government identification document;
348          (c) abusing or threatening abuse of the law or legal process against the person or a third
349     person;
350          (d) using a condition of a person being a debtor due to a pledge of the debtor's personal
351     services or the personal services of a person under the control of the debtor as a security for
352     debt where the reasonable value of the services is not applied toward the liquidation of the debt
353     or the length and nature of those services are not respectively limited and defined; or
354          (e) using a condition of servitude by means of any scheme, plan, or pattern intended to
355     cause a person to believe that if the person did not enter into or continue in a condition of
356     servitude, that person or a third person would suffer serious harm or physical restraint, or
357     would be threatened with abuse of legal process.
358          (2) (a) Human trafficking for forced labor includes forced labor in industrial facilities,
359     sweatshops, households, agricultural enterprises, and any other workplace.
360          (b) Human trafficking for forced sexual exploitation includes all forms of forced
361     commercial sexual activity, including forced sexually explicit performance, forced prostitution,
362     forced participation in the production of pornography, forced performance in strip clubs, and
363     forced exotic dancing or display.
364          (3) A person commits human smuggling by transporting or procuring the transportation
365     for one or more persons for a commercial purpose, knowing or having reason to know that the
366     person or persons transported or to be transported are not:
367          (a) citizens of the United States;
368          (b) permanent resident aliens; or
369          (c) otherwise lawfully in this state or entitled to be in this state.
370          Section 9. Section 76-5-308.5 is amended to read:
371          76-5-308.5. Human trafficking of a child -- Penalties.
372          (1) "Commercial sexual activity with a child" means any sexual act with a child, on
373     account of which anything of value is given to or received by any person.
374          (2) An actor commits human trafficking of a child if the actor recruits, harbors,
375     transports, [or] obtains, patronizes, or solicits a child for sexual exploitation or forced labor.
376          (3) (a) Human trafficking of a child for forced labor includes labor in industrial
377     facilities, sweatshops, households, agricultural enterprises, or any other workplace.
378          (b) Human trafficking of a child for sexual exploitation includes all forms of
379     commercial sexual activity with a child, including sexually explicit performance, prostitution,
380     participation in the production of pornography, performance in a strip club, and exotic dancing
381     or display.
382          (4) Human trafficking of a child in violation of this section is a first degree felony.
383          Section 10. Section 78A-6-302 is amended to read:
384          78A-6-302. Court-ordered protective custody of a child following petition filing --
385     Grounds.
386          (1) After a petition has been filed under Section 78A-6-304, if the child who is the
387     subject of the petition is not in the protective custody of the division, a court may order that the
388     child be removed from the child's home or otherwise taken into protective custody if the court
389     finds, by a preponderance of the evidence, that any one or more of the following circumstances
390     exist:
391          (a) (i) there is an imminent danger to the physical health or safety of the child; and
392          (ii) the child's physical health or safety may not be protected without removing the
393     child from the custody of the child's parent or guardian;
394          (b) (i) a parent or guardian engages in or threatens the child with unreasonable conduct
395     that causes the child to suffer harm; and
396          (ii) there are no less restrictive means available by which the child's emotional health
397     may be protected without removing the child from the custody of the child's parent or guardian;
398          (c) the child or another child residing in the same household has been, or is considered
399     to be at substantial risk of being, physically abused, sexually abused, or sexually exploited, by a
400     parent or guardian, a member of the parent's or guardian's household, or other person known to
401     the parent or guardian;
402          (d) the parent or guardian is unwilling to have physical custody of the child;
403          (e) the child is abandoned or left without any provision for the child's support;
404          (f) a parent or guardian who has been incarcerated or institutionalized has not arranged
405     or cannot arrange for safe and appropriate care for the child;
406          (g) (i) a relative or other adult custodian with whom the child is left by the parent or
407     guardian is unwilling or unable to provide care or support for the child;
408          (ii) the whereabouts of the parent or guardian are unknown; and
409          (iii) reasonable efforts to locate the parent or guardian are unsuccessful;
410          (h) subject to the provisions of Subsections 78A-6-105(27)(d) and 78A-6-117(2)(n)
411     and Section 78A-6-301.5, the child is in immediate need of medical care;
412          (i) (i) a parent's or guardian's actions, omissions, or habitual action create an
413     environment that poses a serious risk to the child's health or safety for which immediate
414     remedial or preventive action is necessary; or
415          (ii) a parent's or guardian's action in leaving a child unattended would reasonably pose
416     a threat to the child's health or safety;
417          (j) the child or another child residing in the same household has been neglected;
418          (k) the child's natural parent:
419          (i) intentionally, knowingly, or recklessly causes the death of another parent of the
420     child;
421          (ii) is identified by a law enforcement agency as the primary suspect in an investigation
422     for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
423          (iii) is being prosecuted for or has been convicted of intentionally, knowingly, or
424     recklessly causing the death of another parent of the child;
425          (l) an infant has been abandoned, as defined in Section 78A-6-316;
426          (m) (i) the parent or guardian, or an adult residing in the same household as the parent
427     or guardian, is charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab
428     Act; and
429          (ii) any clandestine laboratory operation was located in the residence or on the property
430     where the child resided; or
431          (n) the child's welfare is otherwise endangered.
432          (2) (a) For purposes of Subsection (1)(a), if a child has previously been adjudicated as
433     abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
434     occurs involving the same substantiated abuser or under similar circumstance as the previous
435     abuse, that fact constitutes prima facie evidence that the child cannot safely remain in the
436     custody of the child's parent.
437          (b) For purposes of Subsection (1)(c):
438          (i) another child residing in the same household may not be removed from the home
439     unless that child is considered to be at substantial risk of being physically abused, sexually
440     abused, or sexually exploited as described in Subsection (1)(c) or Subsection (2)(b)(ii); and
441          (ii) if a parent or guardian has received actual notice that physical abuse, sexual abuse,
442     or sexual exploitation by a person known to the parent has occurred, and there is evidence that
443     the parent or guardian failed to protect the child, after having received the notice, by allowing
444     the child to be in the physical presence of the alleged abuser, that fact constitutes prima facie
445     evidence that the child is at substantial risk of being physically abused, sexually abused, or
446     sexually exploited.
447          (3) (a) For purposes of Subsection (1), if the division files a petition under Section
448     78A-6-304, the court shall consider the division's safety and risk assessments described in
449     Section 62A-4a-203.1 to determine whether a child should be removed from the custody of the
450     child's parent or guardian or should otherwise be taken into protective custody.
451          (b) The division shall make a diligent effort to provide the safety and risk assessments
452     described in Section 62A-4a-203.1 to the court, guardian ad litem, and counsel for the parent or
453     guardian, as soon as practicable before the shelter hearing described in Section 78A-6-306.
454          [(3)] (4) In the absence of one of the factors described in Subsection (1), a court may
455     not remove a child from the parent's or guardian's custody on the basis of:
456          (a) educational neglect, truancy, or failure to comply with a court order to attend
457     school;
458          (b) mental illness or poverty of the parent or guardian; or
459          (c) disability of the parent or guardian, as defined in Section 57-21-2.
460          [(4)] (5) A child removed from the custody of the child's parent or guardian under this
461     section may not be placed or kept in a secure detention facility pending further court
462     proceedings unless the child is detainable based on guidelines promulgated by the Division of
463     Juvenile Justice Services.
464          [(5)] (6) This section does not preclude removal of a child from the child's home
465     without a warrant or court order under Section 62A-4a-202.1.
466          [(6)] (7) (a) Except as provided in Subsection [(6)] (7)(b), a court or the Division of
467     Child and Family Services may not remove a child from the custody of the child's parent or
468     guardian on the sole or primary basis that the parent or guardian refuses to consent to:
469          (i) the administration of a psychotropic medication to a child;
470          (ii) a psychiatric, psychological, or behavioral treatment for a child; or
471          (iii) a psychiatric or behavioral health evaluation of a child.
472          (b) Notwithstanding Subsection [(6)] (7)(a), a court or the Division of Child and
473     Family Services may remove a child under conditions that would otherwise be prohibited under
474     Subsection [(6)] (7)(a) if failure to take an action described under Subsection [(6)] (7)(a) would
475     present a serious, imminent risk to the child's physical safety or the physical safety of others.
476          Section 11. Section 78A-6-312 is amended to read:
477          78A-6-312. Dispositional hearing -- Reunification services -- Exceptions.
478          (1) The court may:
479          (a) make any of the dispositions described in Section 78A-6-117;
480          (b) place the minor in the custody or guardianship of any:
481          (i) individual; or
482          (ii) public or private entity or agency; or
483          (c) order:
484          (i) protective supervision;
485          (ii) family preservation;
486          (iii) subject to Subsections (12)(b), 78A-6-105(27)(d), and 78A-6-117(2)(n) and
487     Section 78A-6-301.5, medical or mental health treatment; or
488          (iv) other services.
489          (2) Whenever the court orders continued removal at the dispositional hearing, and that
490     the minor remain in the custody of the division, the court shall first:
491          (a) establish a primary permanency plan for the minor; and
492          (b) determine whether, in view of the primary permanency plan, reunification services
493     are appropriate for the minor and the minor's family, pursuant to Subsections (20) through (22).
494          (3) Subject to Subsections (6) and (7), if the court determines that reunification
495     services are appropriate for the minor and the minor's family, the court shall provide for
496     reasonable parent-time with the parent or parents from whose custody the minor was removed,
497     unless parent-time is not in the best interest of the minor.
498          (4) In cases where obvious sexual abuse, sexual exploitation, abandonment, severe
499     abuse, or severe neglect are involved, neither the division nor the court has any duty to make
500     "reasonable efforts" or to, in any other way, attempt to provide reunification services, or to
501     attempt to rehabilitate the offending parent or parents.
502          (5) In all cases, the minor's health, safety, and welfare shall be the court's paramount
503     concern in determining whether reasonable efforts to reunify should be made.
504          (6) For purposes of Subsection (3), parent-time is in the best interests of a minor unless
505     the court makes a finding that it is necessary to deny parent-time in order to:
506          (a) protect the physical safety of the minor;
507          (b) protect the life of the minor; or
508          (c) prevent the minor from being traumatized by contact with the parent due to the
509     minor's fear of the parent in light of the nature of the alleged abuse or neglect.
510          (7) Notwithstanding Subsection (3), a court may not deny parent-time based solely on a
511     parent's failure to:
512          (a) prove that the parent has not used legal or illegal substances; or
513          (b) comply with an aspect of the child and family plan that is ordered by the court.
514          (8) (a) In addition to the primary permanency plan, the court shall establish a
515     concurrent permanency plan that shall include:
516          (i) a representative list of the conditions under which the primary permanency plan will
517     be abandoned in favor of the concurrent permanency plan; and
518          (ii) an explanation of the effect of abandoning or modifying the primary permanency
519     plan.
520          (b) In determining the primary permanency plan and concurrent permanency plan, the
521     court shall consider:
522          (i) the preference for kinship placement over nonkinship placement;
523          (ii) the potential for a guardianship placement if the parent-child relationship is legally
524     terminated and no appropriate adoption placement is available; and
525          (iii) the use of an individualized permanency plan, only as a last resort.
526          (9) A permanency hearing shall be conducted in accordance with Subsection
527     78A-6-314(1)(b) within 30 days after the day on which the dispositional hearing ends if
528     something other than reunification is initially established as a minor's primary permanency
529     plan.
530          (10) (a) The court may amend a minor's primary permanency plan before the
531     establishment of a final permanency plan under Section 78A-6-314.
532          (b) The court is not limited to the terms of the concurrent permanency plan in the event
533     that the primary permanency plan is abandoned.
534          (c) If, at any time, the court determines that reunification is no longer a minor's primary
535     permanency plan, the court shall conduct a permanency hearing in accordance with Section
536     78A-6-314 on or before the earlier of:
537          (i) 30 days after the day on which the court makes the determination described in this
538     Subsection (10)(c); or
539          (ii) the day on which the provision of reunification services, described in Section
540     78A-6-314, ends.
541          (11) (a) If the court determines that reunification services are appropriate, it shall order
542     that the division make reasonable efforts to provide services to the minor and the minor's
543     parent for the purpose of facilitating reunification of the family, for a specified period of time.
544          (b) In providing the services described in Subsection (11)(a), the minor's health, safety,
545     and welfare shall be the division's paramount concern, and the court shall so order.
546          (12) (a) The court shall:
547          (i) determine whether the services offered or provided by the division under the child
548     and family plan constitute "reasonable efforts" on the part of the division;
549          (ii) determine and define the responsibilities of the parent under the child and family
550     plan in accordance with Subsection 62A-4a-205(6)(e); and
551          (iii) identify verbally on the record, or in a written document provided to the parties,
552     the responsibilities described in Subsection (12)(a)(ii), for the purpose of assisting in any future
553     determination regarding the provision of reasonable efforts, in accordance with state and
554     federal law.
555          (b) If the parent is in a substance abuse treatment program, other than a certified drug
556     court program:
557          (i) the court may order the parent to submit to supplementary drug or alcohol testing in
558     addition to the testing recommended by the parent's substance abuse program based on a
559     finding of reasonable suspicion that the parent is abusing drugs or alcohol; and
560          (ii) the court may order the parent to provide the results of drug or alcohol testing
561     recommended by the substance abuse program to the court or division.
562          (13) (a) The time period for reunification services may not exceed 12 months from the
563     date that the minor was initially removed from the minor's home, unless the time period is
564     extended under Subsection 78A-6-314[(8)](7).
565          (b) Nothing in this section may be construed to entitle any parent to an entire 12
566     months of reunification services.
567          (14) (a) If reunification services are ordered, the court may terminate those services at
568     any time.
569          (b) If, at any time, continuation of reasonable efforts to reunify a minor is determined
570     to be inconsistent with the final permanency plan for the minor established pursuant to Section
571     78A-6-314, then measures shall be taken, in a timely manner, to:
572          (i) place the minor in accordance with the permanency plan; and
573          (ii) complete whatever steps are necessary to finalize the permanent placement of the
574     minor.
575          (15) Any physical custody of the minor by the parent or a relative during the period
576     described in Subsections (11) through (14) does not interrupt the running of the period.
577          (16) (a) If reunification services are ordered, a permanency hearing shall be conducted
578     by the court in accordance with Section 78A-6-314 at the expiration of the time period for
579     reunification services.
580          (b) The permanency hearing shall be held no later than 12 months after the original
581     removal of the minor.
582          (c) If reunification services are not ordered, a permanency hearing shall be conducted
583     within 30 days, in accordance with Section 78A-6-314.
584          (17) With regard to a minor in the custody of the division whose parent or parents are
585     ordered to receive reunification services but who have abandoned that minor for a period of six
586     months from the date that reunification services were ordered:
587          (a) the court shall terminate reunification services; and
588          (b) the division shall petition the court for termination of parental rights.
589          (18) When a court conducts a permanency hearing for a minor under Section
590     78A-6-314, the court shall attempt to keep the minor's sibling group together if keeping the
591     sibling group together is:
592          (a) practicable; and
593          (b) in accordance with the best interest of the minor.
594          (19) (a) Because of the state's interest in and responsibility to protect and provide
595     permanency for minors who are abused, neglected, or dependent, the Legislature finds that a
596     parent's interest in receiving reunification services is limited.
597          (b) The court may determine that:
598          (i) efforts to reunify a minor with the minor's family are not reasonable or appropriate,
599     based on the individual circumstances; and
600          (ii) reunification services should not be provided.
601          (c) In determining "reasonable efforts" to be made with respect to a minor, and in
602     making "reasonable efforts," the minor's health, safety, and welfare shall be the paramount
603     concern.
604          (20) There is a presumption that reunification services should not be provided to a
605     parent if the court finds, by clear and convincing evidence, that any of the following
606     circumstances exist:
607          (a) the whereabouts of the parents are unknown, based upon a verified affidavit
608     indicating that a reasonably diligent search has failed to locate the parent;
609          (b) subject to Subsection (21)(a), the parent is suffering from a mental illness of such
610     magnitude that it renders the parent incapable of utilizing reunification services;
611          (c) the minor was previously adjudicated as an abused child due to physical abuse,
612     sexual abuse, or sexual exploitation, and following the adjudication the minor:
613          (i) was removed from the custody of the minor's parent;
614          (ii) was subsequently returned to the custody of the parent; and
615          (iii) is being removed due to additional physical abuse, sexual abuse, or sexual
616     exploitation;
617          (d) the parent:
618          (i) caused the death of another minor through abuse or neglect;
619          (ii) committed, aided, abetted, attempted, conspired, or solicited to commit:
620          (A) murder or manslaughter of a child; or
621          (B) child abuse homicide;
622          (iii) committed sexual abuse against the child;
623          (iv) is a registered sex offender or required to register as a sex offender; or
624          (v) (A) intentionally, knowingly, or recklessly causes the death of another parent of the
625     child;
626          (B) is identified by a law enforcement agency as the primary suspect in an investigation
627     for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
628          (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
629     recklessly causing the death of another parent of the child;
630          (e) the minor suffered severe abuse by the parent or by any person known by the
631     parent, if the parent knew or reasonably should have known that the person was abusing the
632     minor;
633          (f) the minor is adjudicated an abused child as a result of severe abuse by the parent,
634     and the court finds that it would not benefit the minor to pursue reunification services with the
635     offending parent;
636          (g) the parent's rights are terminated with regard to any other minor;
637          (h) the minor was removed from the minor's home on at least two previous occasions
638     and reunification services were offered or provided to the family at those times;
639          (i) the parent has abandoned the minor for a period of six months or longer;
640          (j) the parent permitted the child to reside, on a permanent or temporary basis, at a
641     location where the parent knew or should have known that a clandestine laboratory operation
642     was located;
643          (k) except as provided in Subsection (21)(b), with respect to a parent who is the child's
644     birth mother, the child has fetal alcohol syndrome, fetal alcohol spectrum disorder, or was
645     exposed to an illegal or prescription drug that was abused by the child's mother while the child
646     was in utero, if the child was taken into division custody for that reason, unless the mother
647     agrees to enroll in, is currently enrolled in, or has recently and successfully completed a
648     substance abuse treatment program approved by the department; or
649          (l) any other circumstance that the court determines should preclude reunification
650     efforts or services.
651          (21) (a) The finding under Subsection (20)(b) shall be based on competent evidence
652     from at least two medical or mental health professionals, who are not associates, establishing
653     that, even with the provision of services, the parent is not likely to be capable of adequately
654     caring for the minor within 12 months after the day on which the court finding is made.
655          (b) A judge may disregard the provisions of Subsection (20)(k) if the court finds, under
656     the circumstances of the case, that the substance abuse treatment described in Subsection
657     (20)(k) is not warranted.
658          (22) In determining whether reunification services are appropriate, the court shall take
659     into consideration:
660          (a) failure of the parent to respond to previous services or comply with a previous child
661     and family plan;
662          (b) the fact that the minor was abused while the parent was under the influence of
663     drugs or alcohol;
664          (c) any history of violent behavior directed at the child or an immediate family
665     member;
666          (d) whether a parent continues to live with an individual who abused the minor;
667          (e) any patterns of the parent's behavior that have exposed the minor to repeated abuse;
668          (f) testimony by a competent professional that the parent's behavior is unlikely to be
669     successful; and
670          (g) whether the parent has expressed an interest in reunification with the minor.
671          (23) (a) If reunification services are not ordered pursuant to Subsections (19) through
672     (21), and the whereabouts of a parent become known within six months after the day on which
673     the out-of-home placement of the minor is made, the court may order the division to provide
674     reunification services.
675          (b) The time limits described in Subsections (2) through (18) are not tolled by the
676     parent's absence.
677          (24) (a) If a parent is incarcerated or institutionalized, the court shall order reasonable
678     services unless it determines that those services would be detrimental to the minor.
679          (b) In making the determination described in Subsection (24)(a), the court shall
680     consider:
681          (i) the age of the minor;
682          (ii) the degree of parent-child bonding;
683          (iii) the length of the sentence;
684          (iv) the nature of the treatment;
685          (v) the nature of the crime or illness;
686          (vi) the degree of detriment to the minor if services are not offered;
687          (vii) for a minor 10 years [of age] old or older, the minor's attitude toward the
688     implementation of family reunification services; and
689          (viii) any other appropriate factors.
690          (c) Reunification services for an incarcerated parent are subject to the time limitations
691     imposed in Subsections (2) through (18).
692          (d) Reunification services for an institutionalized parent are subject to the time
693     limitations imposed in Subsections (2) through (18), unless the court determines that continued
694     reunification services would be in the minor's best interest.
695          (25) If, pursuant to Subsections (20)(b) through (l), the court does not order
696     reunification services, a permanency hearing shall be conducted within 30 days, in accordance
697     with Section 78A-6-314.
698          Section 12. Section 78A-6-314 is amended to read:
699          78A-6-314. Permanency hearing -- Final plan -- Petition for termination of
700     parental rights filed -- Hearing on termination of parental rights.
701          (1) (a) When reunification services have been ordered in accordance with Section
702     78A-6-312, with regard to a minor who is in the custody of the Division of Child and Family
703     Services, a permanency hearing shall be held by the court no later than 12 months after the day
704     on which the minor was initially removed from the minor's home.
705          (b) If reunification services were not ordered at the dispositional hearing, a permanency
706     hearing shall be held within 30 days after the day on which the dispositional hearing ends.
707          (2) (a) If reunification services were ordered by the court in accordance with Section
708     78A-6-312, the court shall, at the permanency hearing, determine, consistent with Subsection
709     (3), whether the minor may safely be returned to the custody of the minor's parent.
710          (b) If the court finds, by a preponderance of the evidence, that return of the minor to
711     the minor's parent would create a substantial risk of detriment to the minor's physical or
712     emotional well-being, the minor may not be returned to the custody of the minor's parent.
713          (c) Prima facie evidence that return of the minor to a parent or guardian would create a
714     substantial risk of detriment to the minor is established if:
715          (i) the parent or guardian fails to:
716          (A) participate in a court approved child and family plan;
717          (B) comply with a court approved child and family plan in whole or in part; or
718          (C) meet the goals of a court approved child and family plan; or
719          (ii) the child's natural parent:
720          (A) intentionally, knowingly, or recklessly causes the death of another parent of the
721     child;
722          (B) is identified by a law enforcement agency as the primary suspect in an investigation
723     for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
724          (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
725     recklessly causing the death of another parent of the child.
726          (3) In making a determination under Subsection (2)(a), the court shall review and
727     consider:
728          (a) the report prepared by the Division of Child and Family Services;
729          (b) any admissible evidence offered by the minor's guardian ad litem;
730          (c) any report submitted by the division under Subsection 78A-6-315(3)(a)(i);
731          (d) any evidence regarding the efforts or progress demonstrated by the parent; and
732          (e) the extent to which the parent cooperated and utilized the services provided.
733          (4) With regard to a case where reunification services were ordered by the court, if a
734     minor is not returned to the minor's parent or guardian at the permanency hearing, the court
735     shall, unless the time for the provision of reunification services is extended under Subsection
736     (8):
737          (a) order termination of reunification services to the parent;
738          (b) make a final determination regarding whether termination of parental rights,
739     adoption, or permanent custody and guardianship is the most appropriate final plan for the
740     minor, taking into account the minor's primary permanency plan established by the court
741     pursuant to Section 78A-6-312; and
742          (c) establish a concurrent permanency plan that identifies the second most appropriate
743     final plan for the minor, if appropriate.
744          [(5) If the Division of Child and Family Services documents to the court that there is a
745     compelling reason that adoption, reunification, guardianship, and a placement described in
746     Subsection 78A-6-306(6)(e) are not in the minor's best interest, the court may order another
747     planned permanent living arrangement, in accordance with federal law.]
748          [(6) If the minor clearly desires contact with the parent, the court shall take the minor's
749     desire into consideration in determining the final plan.]
750          (5) The court may order another planned permanent living arrangement for a minor 16
751     years old or older upon entering the following findings:
752          (a) the Division of Child and Family Services has documented intensive, ongoing, and
753     unsuccessful efforts to reunify the minor with the minor's parent or parents, or to secure a
754     placement for the minor with a guardian, an adoptive parent, or an individual described in
755     Subsection 78A-6-306(6)(e);
756          (b) the Division of Child and Family Services has demonstrated that the division has
757     made efforts to normalize the life of the minor while in the division's custody, in accordance
758     with Sections 62A-4a-210 through 62A-4a-212;
759          (c) the minor prefers another planned permanent living arrangement; and
760          (d) there is a compelling reason why reunification or a placement described in
761     Subsection (5)(a) is not in the minor's best interest.
762          [(7)] (6) Except as provided in Subsection [(8)] (7), the court may not extend
763     reunification services beyond 12 months after the day on which the minor was initially
764     removed from the minor's home, in accordance with the provisions of Section 78A-6-312.
765          [(8)] (7) (a) Subject to Subsection [(8)] (7)(b), the court may extend reunification
766     services for no more than 90 days if the court finds, beyond a preponderance of the evidence,
767     that:
768          (i) there has been substantial compliance with the child and family plan;
769          (ii) reunification is probable within that 90-day period; and
770          (iii) the extension is in the best interest of the minor.
771          (b) (i) Except as provided in Subsection [(8)] (7)(c), the court may not extend any
772     reunification services beyond 15 months after the day on which the minor was initially
773     removed from the minor's home.
774          (ii) Delay or failure of a parent to establish paternity or seek custody does not provide a
775     basis for the court to extend services for that parent beyond the 12-month period described in
776     Subsection [(7)] (6).
777          (c) In accordance with Subsection [(8)] (7)(d), the court may extend reunification
778     services for one additional 90-day period, beyond the 90-day period described in Subsection
779     [(8)] (7)(a), if:
780          (i) the court finds, by clear and convincing evidence, that:
781          (A) the parent has substantially complied with the child and family plan;
782          (B) it is likely that reunification will occur within the additional 90-day period; and
783          (C) the extension is in the best interest of the child;
784          (ii) the court specifies the facts upon which the findings described in Subsection [(8)]
785     (7)(c)(i) are based; and
786          (iii) the court specifies the time period in which it is likely that reunification will occur.
787          (d) A court may not extend the time period for reunification services without
788     complying with the requirements of this Subsection [(8)] (7) before the extension.
789          (e) In determining whether to extend reunification services for a minor, a court shall
790     take into consideration the status of the minor siblings of the minor.
791          [(9)] (8) The court may, in its discretion:
792          (a) enter any additional order that it determines to be in the best interest of the minor,
793     so long as that order does not conflict with the requirements and provisions of Subsections (4)
794     through [(8)] (7); or
795          (b) order the division to provide protective supervision or other services to a minor and
796     the minor's family after the division's custody of a minor has been terminated.
797          [(10)] (9) If the final plan for the minor is to proceed toward termination of parental
798     rights, the petition for termination of parental rights shall be filed, and a pretrial held, within 45
799     calendar days after the permanency hearing.
800          [(11)] (10) (a) Any party to an action may, at any time, petition the court for an
801     expedited permanency hearing on the basis that continuation of reunification efforts are
802     inconsistent with the permanency needs of the minor.
803          (b) If the court so determines, it shall order, in accordance with federal law, that:
804          (i) the minor be placed in accordance with the permanency plan; and
805          (ii) whatever steps are necessary to finalize the permanent placement of the minor be
806     completed as quickly as possible.
807          [(12)] (11) Nothing in this section may be construed to:
808          (a) entitle any parent to reunification services for any specified period of time;
809          (b) limit a court's ability to terminate reunification services at any time prior to a
810     permanency hearing; or
811          (c) limit or prohibit the filing of a petition for termination of parental rights by any
812     party, or a hearing on termination of parental rights, at any time prior to a permanency hearing.
813          [(13)] (12) (a) Subject to Subsection [(13)] (12)(b), if a petition for termination of
814     parental rights is filed prior to the date scheduled for a permanency hearing, the court may
815     consolidate the hearing on termination of parental rights with the permanency hearing.
816          (b) For purposes of Subsection [(13)] (12)(a), if the court consolidates the hearing on
817     termination of parental rights with the permanency hearing:
818          (i) the court shall first make a finding regarding whether reasonable efforts have been
819     made by the Division of Child and Family Services to finalize the permanency plan for the
820     minor; and
821          (ii) any reunification services shall be terminated in accordance with the time lines
822     described in Section 78A-6-312.
823          (c) A decision on a petition for termination of parental rights shall be made within 18
824     months from the day on which the minor is removed from the minor's home.
825          [(14)] (13) If a court determines that a child will not be returned to a parent of the
826     child, the court shall consider appropriate placement options inside and outside of the state.