7 LONG TITLE
8 General Description:
9 This bill enacts provisions related to the adoption and placement of high needs children.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ modifies terms;
14 ▸ requires a child placing agency to provide certain information and training for a
15 prospective adoptive parent of a high needs child;
16 ▸ prohibits a person from engaging in an unregulated custody transfer; and
17 ▸ makes technical changes.
18 Money Appropriated in this Bill:
20 Other Special Clauses:
22 Utah Code Sections Affected:
24 62A-4a-208, as last amended by Laws of Utah 2009, Chapter 75
25 62A-4a-601, as last amended by Laws of Utah 2006, Chapter 281
26 78A-6-105, as last amended by Laws of Utah 2016, Chapters 109 and 351
28 62A-4A-609, Utah Code Annotated 1953
29 62A-4A-711, Utah Code Annotated 1953
31 Be it enacted by the Legislature of the state of Utah:
32 Section 1. Section 62A-4a-208 is amended to read:
33 62A-4a-208. Child protection ombudsman -- Responsibility -- Authority.
34 (1) As used in this section:
35 (a) "Complainant" means a person who initiates a complaint with the ombudsman.
36 (b) "Ombudsman" means the child protection ombudsman appointed pursuant to this
38 (2) (a) There is created within the department the position of child protection
39 ombudsman. The ombudsman shall be appointed by and serve at the pleasure of the executive
41 (b) The ombudsman shall be:
42 (i) an individual of recognized executive and administrative capacity;
43 (ii) selected solely with regard to qualifications and fitness to discharge the duties of
44 ombudsman; and
45 (iii) have experience in child welfare, and in state laws and policies governing abused,
46 neglected, and dependent children.
47 (c) The ombudsman shall devote full time to the duties of office.
48 (3) (a) Except as provided in Subsection (3)(b), the ombudsman shall, upon receipt of a
49 complaint from any person, investigate whether an act or omission of the division with respect
50 to a particular child:
51 (i) is contrary to statute, rule, or policy;
52 (ii) places a child's health or safety at risk;
53 (iii) is made without an adequate statement of reason; or
54 (iv) is based on irrelevant, immaterial, or erroneous grounds.
55 (b) The ombudsman may decline to investigate any complaint. If the ombudsman
56 declines to investigate a complaint or continue an investigation, the ombudsman shall notify
57 the complainant and the division of the decision and of the reasons for that decision.
58 (c) The ombudsman may conduct an investigation on the ombudsman's own initiative.
59 (4) The ombudsman shall:
60 (a) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
61 make rules that govern the following:
62 (i) receiving and processing complaints;
63 (ii) notifying complainants and the division regarding a decision to investigate or to
64 decline to investigate a complaint;
65 (iii) prioritizing workload;
66 (iv) maximum time within which investigations shall be completed;
67 (v) conducting investigations;
68 (vi) notifying complainants and the division regarding the results of investigations; and
69 (vii) making recommendations based on the findings and results of recommendations;
70 (b) report findings and recommendations in writing to the complainant and the
71 division, in accordance with the provisions of this section;
72 (c) within appropriations from the Legislature, employ staff as may be necessary to
73 carry out the ombudsman's duties under this part;
74 (d) provide information regarding the role, duties, and functions of the ombudsman to
75 public agencies, private entities, and individuals;
76 (e) annually report to the:
77 (i) Child Welfare Legislative Oversight Panel;
78 (ii) governor;
79 (iii) Division of Child and Family Services;
80 (iv) executive director of the department; and
81 (v) director of the division; and
82 (f) as appropriate, make recommendations to the division regarding individual cases,
83 and the rules, policies, and operations of the division.
84 (5) (a) Upon rendering a decision to investigate a complaint, the ombudsman shall
85 notify the complainant and the division of that decision.
86 (b) The ombudsman may advise a complainant to pursue all administrative remedies or
87 channels of complaint before pursuing a complaint with the ombudsman. Subsequent to
88 processing a complaint, the ombudsman may conduct further investigations upon the request of
89 the complainant or upon the ombudsman's own initiative. Nothing in this subsection precludes
90 a complainant from making a complaint directly to the ombudsman before pursuing an
91 administrative remedy.
92 (c) If the ombudsman finds that an individual's act or omission violates state or federal
93 criminal law, the ombudsman shall immediately report that finding to the appropriate county or
94 district attorney or to the attorney general.
95 (d) The ombudsman shall immediately notify the division if the ombudsman finds that
96 a child needs protective custody[
97 (e) The ombudsman shall immediately comply with Part 4, Child Abuse or Neglect
98 Reporting Requirements.
99 (6) (a) All records of the ombudsman regarding individual cases shall be classified in
100 accordance with federal law and the provisions of Title 63G, Chapter 2, Government Records
101 Access and Management Act. The ombudsman may make public a report prepared pursuant to
102 this section in accordance with the provisions of Title 63G, Chapter 2, Government Records
103 Access and Management Act.
104 (b) The ombudsman shall have access to all of the department's written and electronic
105 records and databases, including those regarding individual cases. In accordance with Title
106 63G, Chapter 2, Government Records Access and Management Act, all documents and
107 information received by the ombudsman shall maintain the same classification that was
108 designated by the department.
109 (7) (a) The ombudsman shall prepare a written report of the findings and
110 recommendations, if any, of each investigation.
111 (b) The ombudsman shall make recommendations to the division if the ombudsman
112 finds that:
113 (i) a matter should be further considered by the division;
114 (ii) an administrative act should be addressed, modified, or canceled;
115 (iii) action should be taken by the division with regard to one of its employees; or
116 (iv) any other action should be taken by the division.
117 Section 2. Section 62A-4a-601 is amended to read:
118 62A-4a-601. Definitions.
119 For purposes of this part:
120 (1) "Child placing" means:
121 (a) receiving, accepting, or providing custody or care for a child, temporarily or
122 permanently, for the purpose of finding a person to adopt the child; or
123 (b) placing a child, temporarily or permanently, in a home for adoption or substitute
125 (2) "Child placing agency" means an individual, agency, firm, corporation, association,
126 or group children's home that engages in child placing.
127 (3) "High needs child" means a child:
128 (a) with an attachment or trauma-related disorder;
129 (b) who suffered from prenatal exposure to alcohol or drugs;
130 (c) who is the subject of an intercountry adoption;
131 (d) who was previously adopted; or
132 (e) who is in foster care.
133 Section 3. Section 62A-4A-609 is enacted to read:
134 62A-4A-609. Preplacement disclosure and training before high needs child
136 Before referring a high needs child for adoption or entering into a contract to provide
137 adoption services to a prospective adoptive parent of a high needs child, the child placing
138 agency shall ensure that the prospective adoptive parent receives:
139 (1) at a minimum, the following information:
140 (a) a social history of the high needs child to be adopted, including:
141 (i) a history of the high needs child's cultural, racial, religious, ethnic, linguistic, and
142 educational background; and
143 (ii) any conditions in the high needs child's country of origin, if applicable, to which
144 the child may have been exposed and that may have an impact on the child's physical or mental
145 health; and
146 (b) a record, if available, of the high needs child's:
147 (i) physical health, mental health, behavioral issues, or exposure to trauma, including
148 whether the child placing agency knows or suspects that the high needs child has been exposed
149 to alcohol or drugs in utero; and
150 (ii) history of institutionalization or previous adoptive or foster placements and, if
151 applicable, the reason a previous placement was terminated; and
152 (2) at a minimum, training on the following issues:
153 (a) the impact leaving familiar ties and surroundings may have on a high needs child,
154 and the grief, loss, and identity issues that a high needs child may experience in adoption;
155 (b) the potential impact of an institutional setting on a high needs child;
156 (c) attachment disorders, trauma-related disorders, fetal alcohol spectrum disorders,
157 and other emotional problems that a high needs child may suffer, particularly when the high
158 needs child has been institutionalized, traumatized, or cared for by multiple caregivers;
159 (d) the general characteristics of a successful adoption placement, including
160 information on the financial resources, time, and insurance coverage necessary for handling the
161 adoptive family's and the high needs child's adjustment following placement;
162 (e) the medical, therapeutic, and educational needs a high needs child may require,
163 including language acquisition training;
164 (f) how to access post-placement and post-adoption services that may assist the family
165 to respond effectively to adjustment, behavioral, and other difficulties that may arise after the
166 high needs child is placed or adopted;
167 (g) issues that may lead to the disruption of an adoptive placement or the dissolution of
168 an adoption, including how an adoptive parent may access resources to avoid disruption or
170 (h) the long-term implications for a family that becomes multicultural through
171 adoption; and
172 (i) for a prospective adoptive parent who is seeking to adopt two or more unrelated
173 children, the differing needs of children based on their respective ages, backgrounds, length of
174 time outside of family care, and the time management requirements and other challenges that
175 may be presented in a multi-child adoption.
176 Section 4. Section 62A-4A-711 is enacted to read:
177 62A-4A-711. Penalty.
178 An individual or entity that knowingly engages in an unregulated custody transfer, as
179 defined in Subsection 78A-6-105(48), is guilty of a class B misdemeanor.
180 Section 5. Section 78A-6-105 is amended to read:
181 78A-6-105. Definitions.
182 As used in this chapter:
183 (1) (a) "Abuse" means:
184 (i) nonaccidental harm of a child;
185 (ii) threatened harm of a child;
186 (iii) sexual exploitation;
187 (iv) sexual abuse; or
188 (v) human trafficking of a child in violation of Section 76-5-308.5.
189 (b) that a child's natural parent:
190 (i) intentionally, knowingly, or recklessly causes the death of another parent of the
192 (ii) is identified by a law enforcement agency as the primary suspect in an investigation
193 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
194 (iii) is being prosecuted for or has been convicted of intentionally, knowingly, or
195 recklessly causing the death of another parent of the child.
196 (c) "Abuse" does not include:
197 (i) reasonable discipline or management of a child, including withholding privileges;
198 (ii) conduct described in Section 76-2-401; or
199 (iii) the use of reasonable and necessary physical restraint or force on a child:
200 (A) in self-defense;
201 (B) in defense of others;
202 (C) to protect the child; or
203 (D) to remove a weapon in the possession of a child for any of the reasons described in
204 Subsections (1)(b)(iii)(A) through (C).
205 (2) "Abused child" means a child who has been subjected to abuse.
206 (3) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
207 alleged in the petition have been proved. A finding of not competent to proceed pursuant to
208 Section 78A-6-1302 is not an adjudication.
209 (4) "Adult" means a person 18 years of age or over, except that a person 18 years or
210 over under the continuing jurisdiction of the juvenile court pursuant to Section 78A-6-120 shall
211 be referred to as a minor.
212 (5) "Board" means the Board of Juvenile Court Judges.
213 (6) "Child" means a person under 18 years of age.
214 (7) "Child placement agency" means:
215 (a) a private agency licensed to receive a child for placement or adoption under this
216 code; or
217 (b) a private agency that receives a child for placement or adoption in another state,
218 which agency is licensed or approved where such license or approval is required by law.
219 (8) "Clandestine laboratory operation" means the same as that term is defined in
220 Section 58-37d-3.
221 (9) "Commit" means, unless specified otherwise:
222 (a) with respect to a child, to transfer legal custody; and
223 (b) with respect to a minor who is at least 18 years of age, to transfer custody.
224 (10) "Court" means the juvenile court.
225 (11) "Dependent child" includes a child who is homeless or without proper care
226 through no fault of the child's parent, guardian, or custodian.
227 (12) "Deprivation of custody" means transfer of legal custody by the court from a
228 parent or the parents or a previous legal custodian to another person, agency, or institution.
229 (13) "Detention" means home detention and secure detention as defined in Section
230 62A-7-101 for the temporary care of a minor who requires secure custody in a physically
231 restricting facility:
232 (a) pending court disposition or transfer to another jurisdiction; or
233 (b) while under the continuing jurisdiction of the court.
234 (14) "Division" means the Division of Child and Family Services.
235 (15) "Formal referral" means a written report from a peace officer or other person
236 informing the court that a minor is or appears to be within the court's jurisdiction and that a
237 petition may be filed.
238 (16) "Group rehabilitation therapy" means psychological and social counseling of one
239 or more persons in the group, depending upon the recommendation of the therapist.
240 (17) "Guardianship of the person" includes the authority to consent to:
241 (a) marriage;
242 (b) enlistment in the armed forces;
243 (c) major medical, surgical, or psychiatric treatment; or
244 (d) legal custody, if legal custody is not vested in another person, agency, or institution.
245 (18) "Habitual truant" means the same as that term is defined in Section 53A-11-101.
246 (19) "Harm" means:
247 (a) physical or developmental injury or damage;
248 (b) emotional damage that results in a serious impairment in the child's growth,
249 development, behavior, or psychological functioning;
250 (c) sexual abuse; or
251 (d) sexual exploitation.
252 (20) (a) "Incest" means engaging in sexual intercourse with a person whom the
253 perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle, aunt,
254 nephew, niece, or first cousin.
255 (b) The relationships described in Subsection (20)(a) include:
256 (i) blood relationships of the whole or half blood, without regard to legitimacy;
257 (ii) relationships of parent and child by adoption; and
258 (iii) relationships of stepparent and stepchild while the marriage creating the
259 relationship of a stepparent and stepchild exists.
260 (21) "Intellectual disability" means:
261 (a) significantly subaverage intellectual functioning, an IQ of approximately 70 or
262 below on an individually administered IQ test, for infants, a clinical judgment of significantly
263 subaverage intellectual functioning;
264 (b) concurrent deficits or impairments in present adaptive functioning, the person's
265 effectiveness in meeting the standards expected for his or her age by the person's cultural
266 group, in at least two of the following areas: communication, self-care, home living,
267 social/interpersonal skills, use of community resources, self-direction, functional academic
268 skills, work, leisure, health, and safety; and
269 (c) the onset is before the person reaches the age of 18 years.
270 (22) "Legal custody" means a relationship embodying the following rights and duties:
271 (a) the right to physical custody of the minor;
272 (b) the right and duty to protect, train, and discipline the minor;
273 (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary
274 medical care;
275 (d) the right to determine where and with whom the minor shall live; and
276 (e) the right, in an emergency, to authorize surgery or other extraordinary care.
277 (23) "Mental disorder" means a serious emotional and mental disturbance that severely
278 limits a minor's development and welfare over a significant period of time.
279 (24) "Minor" means:
280 (a) a child; or
281 (b) a person who is:
282 (i) at least 18 years of age and younger than 21 years of age; and
283 (ii) under the jurisdiction of the juvenile court.
284 (25) "Molestation" means that a person, with the intent to arouse or gratify the sexual
285 desire of any person:
286 (a) touches the anus or any part of the genitals of a child;
287 (b) takes indecent liberties with a child; or
288 (c) causes a child to take indecent liberties with the perpetrator or another.
289 (26) "Natural parent" means a minor's biological or adoptive parent, and includes the
290 minor's noncustodial parent.
291 (27) (a) "Neglect" means action or inaction causing:
292 (i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
293 Relinquishment of a Newborn Child;
294 (ii) lack of proper parental care of a child by reason of the fault or habits of the parent,
295 guardian, or custodian;
296 (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
297 subsistence, education, or medical care, or any other care necessary for the child's health,
298 safety, morals, or well-being; [
299 (iv) a child to be at risk of being neglected or abused because another child in the same
300 home is neglected or abused[
301 (v) abandonment of a child through an unregulated custody transfer.
302 (b) The aspect of neglect relating to education, described in Subsection (27)(a)(iii),
303 means that, after receiving a notice of compulsory education violation under Section
304 53A-11-101.5, or notice that a parent or guardian has failed to cooperate with school
305 authorities in a reasonable manner as required under Subsection 53A-11-101.7(5)(a), the parent
306 or guardian fails to make a good faith effort to ensure that the child receives an appropriate
308 (c) A parent or guardian legitimately practicing religious beliefs and who, for that
309 reason, does not provide specified medical treatment for a child, is not guilty of neglect.
310 (d) (i) Notwithstanding Subsection (27)(a), a health care decision made for a child by
311 the child's parent or guardian does not constitute neglect unless the state or other party to the
312 proceeding shows, by clear and convincing evidence, that the health care decision is not
313 reasonable and informed.
314 (ii) Nothing in Subsection (27)(d)(i) may prohibit a parent or guardian from exercising
315 the right to obtain a second health care opinion and from pursuing care and treatment pursuant
316 to the second health care opinion, as described in Section 78A-6-301.5.
317 (28) "Neglected child" means a child who has been subjected to neglect.
318 (29) "Nonjudicial adjustment" means closure of the case by the assigned probation
319 officer without judicial determination upon the consent in writing of:
320 (a) the assigned probation officer; and
321 (b) (i) the minor; or
322 (ii) the minor and the minor's parent, legal guardian, or custodian.
323 (30) "Not competent to proceed" means that a minor, due to a mental disorder,
324 intellectual disability, or related condition as defined, lacks the ability to:
325 (a) understand the nature of the proceedings against them or of the potential disposition
326 for the offense charged; or
327 (b) consult with counsel and participate in the proceedings against them with a
328 reasonable degree of rational understanding.
329 (31) "Physical abuse" means abuse that results in physical injury or damage to a child.
330 (32) "Probation" means a legal status created by court order following an adjudication
331 on the ground of a violation of law or under Section 78A-6-103, whereby the minor is
332 permitted to remain in the minor's home under prescribed conditions and under supervision by
333 the probation department or other agency designated by the court, subject to return to the court
334 for violation of any of the conditions prescribed.
335 (33) "Protective supervision" means a legal status created by court order following an
336 adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
337 remain in the minor's home, and supervision and assistance to correct the abuse, neglect, or
338 dependency is provided by the probation department or other agency designated by the court.
339 (34) "Related condition" means a condition closely related to intellectual disability in
340 accordance with 42 C.F.R. Part 435.1010 and further defined in Rule R539-1-3, Utah
341 Administrative Code.
342 (35) (a) "Residual parental rights and duties" means those rights and duties remaining
343 with the parent after legal custody or guardianship, or both, have been vested in another person
344 or agency, including:
345 (i) the responsibility for support;
346 (ii) the right to consent to adoption;
347 (iii) the right to determine the child's religious affiliation; and
348 (iv) the right to reasonable parent-time unless restricted by the court.
349 (b) If no guardian has been appointed, "residual parental rights and duties" also include
350 the right to consent to:
351 (i) marriage;
352 (ii) enlistment; and
353 (iii) major medical, surgical, or psychiatric treatment.
354 (36) "Secure facility" means any facility operated by or under contract with the
355 Division of Juvenile Justice Services, that provides 24-hour supervision and confinement for
356 youth offenders committed to the division for custody and rehabilitation.
357 (37) "Severe abuse" means abuse that causes or threatens to cause serious harm to a
359 (38) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
361 (39) "Sexual abuse" means:
362 (a) an act or attempted act of sexual intercourse, sodomy, incest, or molestation by an
363 adult directed towards a child;
364 (b) an act or attempted act of sexual intercourse, sodomy, incest, or molestation
365 committed by a child towards another child if:
366 (i) there is an indication of force or coercion;
367 (ii) the children are related, as defined in Subsections (20)(a) and (20)(b);
368 (iii) there have been repeated incidents of sexual contact between the two children,
369 unless the children are 14 years of age or older; or
370 (iv) there is a disparity in chronological age of four or more years between the two
371 children; or
372 (c) engaging in any conduct with a child that would constitute an offense under any of
373 the following, regardless of whether the person who engages in the conduct is actually charged
374 with, or convicted of, the offense:
375 (i) Title 76, Chapter 5, Part 4, Sexual Offenses, except for Section 76-5-401, if the
376 alleged perpetrator of an offense described in Section 76-5-401 is a minor;
377 (ii) child bigamy, Section 76-7-101.5;
378 (iii) incest, Section 76-7-102;
379 (iv) lewdness, Section 76-9-702;
380 (v) sexual battery, Section 76-9-702.1;
381 (vi) lewdness involving a child, Section 76-9-702.5; or
382 (vii) voyeurism, Section 76-9-702.7.
383 (40) "Sexual exploitation" means knowingly:
384 (a) employing, using, persuading, inducing, enticing, or coercing any child to:
385 (i) pose in the nude for the purpose of sexual arousal of any person; or
386 (ii) engage in any sexual or simulated sexual conduct for the purpose of photographing,
387 filming, recording, or displaying in any way the sexual or simulated sexual conduct;
388 (b) displaying, distributing, possessing for the purpose of distribution, or selling
389 material depicting a child:
390 (i) in the nude, for the purpose of sexual arousal of any person; or
391 (ii) engaging in sexual or simulated sexual conduct; or
392 (c) engaging in any conduct that would constitute an offense under Section 76-5b-201,
393 sexual exploitation of a minor, regardless of whether the person who engages in the conduct is
394 actually charged with, or convicted of, the offense.
395 (41) "Shelter" means the temporary care of a child in a physically unrestricted facility
396 pending court disposition or transfer to another jurisdiction.
397 (42) "State supervision" means a disposition that provides a more intensive level of
398 intervention than standard probation but is less intensive or restrictive than a community
399 placement with the Division of Juvenile Justice Services.
400 (43) "Substance abuse" means the misuse or excessive use of alcohol or other drugs or
402 (44) "Substantiated" means the same as that term is defined in Section 62A-4a-101.
403 (45) "Supported" means the same as that term is defined in Section 62A-4a-101.
404 (46) "Termination of parental rights" means the permanent elimination of all parental
405 rights and duties, including residual parental rights and duties, by court order.
406 (47) "Therapist" means:
407 (a) a person employed by a state division or agency for the purpose of conducting
408 psychological treatment and counseling of a minor in its custody; or
409 (b) any other person licensed or approved by the state for the purpose of conducting
410 psychological treatment and counseling.
411 (48) "Unregulated custody transfer" means the placement of a child:
412 (a) with a person who is not the child's parent, step-parent, grandparent, adult sibling,
413 adult uncle or aunt, or legal guardian, or a friend of the family who is an adult and with whom
414 the child is familiar, or a member of the child's federally recognized tribe;
415 (b) with the intent of severing the child's existing parent-child or guardian-child
416 relationship; and
417 (c) without taking:
418 (i) reasonable steps to ensure the safety of the child and permanency of the placement;
420 (ii) the necessary steps to transfer the legal rights and responsibilities of parenthood or
421 guardianship to the person taking custody of the child.
Legislative Review Note
Office of Legislative Research and General Counsel