This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Mar 11, 2019 at 5:08 PM by estauffer.
Senator Wayne A. Harper proposes the following substitute bill:




Chief Sponsor: Wayne A. Harper

House Sponsor: Eric K. Hutchings


8     General Description:
9          This bill changes the administration of the Child Welfare Parental Defense Program
10     from the Department of Administrative Services to the Commission on Criminal and
11     Juvenile Justice.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     changes the administration of the Child Welfare Parental Defense Program from the
16     Department of Administrative Services to the Commission on Criminal and
17     Juvenile Justice;
18          ▸     modifies provisions relating to the duties and functions of the Child Welfare
19     Parental Defense Program; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          This bill appropriates in fiscal year 2020:
23          ▸     to Commission on Criminal and Juvenile Justice -- Child Welfare Parental Defense
24     Fund, as an ongoing appropriation:
25               •     from General Fund, $6,500.

26     Other Special Clauses:
27          None
28     Utah Code Sections Affected:
29     AMENDS:
30          63M-7-204, as last amended by Laws of Utah 2018, Chapters 54 and 126
31          77-32-802, as last amended by Laws of Utah 2018, Chapter 296
32     ENACTS:
33          63M-7-211, Utah Code Annotated 1953
34          63M-7-211.1, Utah Code Annotated 1953
35          63M-7-211.2, Utah Code Annotated 1953
36     REPEALS:
37          63A-11-101, as last amended by Laws of Utah 2011, Chapter 265
38          63A-11-102, as last amended by Laws of Utah 2011, Chapter 265
39          63A-11-103, as last amended by Laws of Utah 2011, Chapter 265
40          63A-11-104, as last amended by Laws of Utah 2011, Chapter 265
41          63A-11-105, as last amended by Laws of Utah 2011, Chapter 265
42          63A-11-106, as last amended by Laws of Utah 2011, Chapter 265
43          63A-11-107, as last amended by Laws of Utah 2008, Chapter 382
44          63A-11-201, as last amended by Laws of Utah 2011, Chapter 265
45          63A-11-202, as last amended by Laws of Utah 2011, Chapter 265
46          63A-11-203, as last amended by Laws of Utah 2013, Chapter 400
47          63A-11-204, as last amended by Laws of Utah 2011, Chapter 265

49     Be it enacted by the Legislature of the state of Utah:
50          Section 1. Section 63M-7-204 is amended to read:
51          63M-7-204. Duties of commission.
52          (1) The State Commission on Criminal and Juvenile Justice administration shall:
53          (a) promote the commission's purposes as enumerated in Section 63M-7-201;
54          (b) promote the communication and coordination of all criminal and juvenile justice
55     agencies;
56          (c) study, evaluate, and report on the status of crime in the state and on the

57     effectiveness of criminal justice policies, procedures, and programs that are directed toward the
58     reduction of crime in the state;
59          (d) study, evaluate, and report on programs initiated by state and local agencies to
60     address reducing recidivism, including changes in penalties and sentencing guidelines intended
61     to reduce recidivism, costs savings associated with the reduction in the number of inmates, and
62     evaluation of expenses and resources needed to meet goals regarding the use of treatment as an
63     alternative to incarceration, as resources allow;
64          (e) study, evaluate, and report on policies, procedures, and programs of other
65     jurisdictions which have effectively reduced crime;
66          (f) identify and promote the implementation of specific policies and programs the
67     commission determines will significantly reduce crime in Utah;
68          (g) provide analysis and recommendations on all criminal and juvenile justice
69     legislation, state budget, and facility requests, including program and fiscal impact on all
70     components of the criminal and juvenile justice system;
71          (h) provide analysis, accountability, recommendations, and supervision for state and
72     federal criminal justice grant money;
73          (i) provide public information on the criminal and juvenile justice system and give
74     technical assistance to agencies or local units of government on methods to promote public
75     awareness;
76          (j) promote research and program evaluation as an integral part of the criminal and
77     juvenile justice system;
78          (k) provide a comprehensive criminal justice plan annually;
79          (l) review agency forecasts regarding future demands on the criminal and juvenile
80     justice systems, including specific projections for secure bed space;
81          (m) promote the development of criminal and juvenile justice information systems that
82     are consistent with common standards for data storage and are capable of appropriately sharing
83     information with other criminal justice information systems by:
84          (i) developing and maintaining common data standards for use by all state criminal
85     justice agencies;
86          (ii) annually performing audits of criminal history record information maintained by
87     state criminal justice agencies to assess their accuracy, completeness, and adherence to

88     standards;
89          (iii) defining and developing state and local programs and projects associated with the
90     improvement of information management for law enforcement and the administration of
91     justice; and
92          (iv) establishing general policies concerning criminal and juvenile justice information
93     systems and making rules as necessary to carry out the duties under Subsection (1)(k) and this
94     Subsection (1)(m);
95          (n) allocate and administer grants, from money made available, for approved education
96     programs to help prevent the sexual exploitation of children;
97          (o) allocate and administer grants funded from money from the Law Enforcement
98     Operations Account created in Section 51-9-411 for law enforcement operations and programs
99     related to reducing illegal drug activity and related criminal activity;
100          (p) request, receive, and evaluate data and recommendations collected and reported by
101     agencies and contractors related to policies recommended by the commission regarding
102     recidivism reduction;
103          (q) establish and administer a performance incentive grant program that allocates funds
104     appropriated by the Legislature to programs and practices implemented by counties that reduce
105     recidivism and reduce the number of offenders per capita who are incarcerated;
106          (r) oversee or designate an entity to oversee the implementation of juvenile justice
107     reforms;
108          (s) make rules and administer the juvenile holding room standards and juvenile jail
109     standards to align with the Juvenile Justice and Delinquency Prevention Act requirements
110     pursuant to 42 U.S.C. Sec. 5633;
111          (t) allocate and administer grants, from money made available, for pilot qualifying
112     education programs; [and]
113          (u) oversee the trauma-informed justice program described in Section 63M-7-209[.];
114     and
115          (v) administer the Child Welfare Parental Defense Program in accordance with
116     Sections 63M-7-211, 63M-7-211.1, and 63M-7-211.2.
117          (2) If the commission designates an entity under Subsection (1)(r), the commission
118     shall ensure that the membership of the entity includes representation from the three branches

119     of government and, as determined by the commission, representation from relevant stakeholder
120     groups across all parts of the juvenile justice system, including county representation.
121          Section 2. Section 63M-7-211 is enacted to read:
122          63M-7-211. Child welfare parental defense program -- Creation -- Duties --
123     Contracting -- Annual report -- Budget -- Records access.
124          (1) As used in this section and Sections 63M-7-211.1 and 63M-7-211.2:
125          (a) "Child welfare case" means a proceeding under Title 78A, Chapter 6, Part 3, Abuse,
126     Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act.
127          (b) "Commission" means the Commission on Criminal and Juvenile Justice created in
128     Section 63M-7-201.
129          (c) "Contracted parental defense attorney" means a parental defense attorney who is
130     under contract with the commission to provide parental defense in a child welfare case.
131          (d) "Executive director" means the executive director of the commission appointed
132     under Section 63M-7-203.
133          (e) "Fund" means the Child Welfare Parental Defense Fund established in Section
134     63M-7-211.2.
135          (f) "Parental defense attorney" means an attorney, law firm, or group of attorneys who:
136          (i) are authorized to practice law in the state; and
137          (ii) provide legal representation under contract with the commission, or a county in the
138     state, to a parent who is a party in a child welfare case.
139          (g) "Program" means the Child Welfare Parental Defense Program created in this
140     section.
141          (2) There is created within the commission the Child Welfare Parental Defense
142     Program.
143          (3) The commission shall:
144          (a) administer and enforce this section;
145          (b) manage the operation and budget of the program;
146          (c) provide assistance and advice to parental defense attorneys;
147          (d) develop and provide educational and training programs for parental defense
148     attorneys; and
149          (e) provide information and advice to assist a parental defense attorney to comply with

150     the attorney's professional, contractual, and ethical duties.
151          (4) The commission may contract with:
152          (a) a person who is qualified to perform the program duties under this section; and
153          (b) an attorney authorized to practice law in the state, as an independent contractor, to
154     serve as a parental defense attorney under this section.
155          (5) (a) On or before October 1 of each year, the executive director shall report to the
156     governor and the Child Welfare Legislative Oversight Panel regarding the preceding fiscal year
157     on the operations, activities, and goals of the program.
158          (b) The executive director shall prepare a budget of:
159          (i) the administrative expenses for the program; and
160          (ii) the amount estimated to fund needed contracts and other costs.
161          (c) The professional legislative staff may include summary data and nonidentifying
162     information in the staff's audits and reports to the Legislature.
163          (6) (a) (i) Notwithstanding Title 63G, Chapter 2, Government Records Access and
164     Management Act, and except as provided in Subsection (6)(b), a record of a contracted parental
165     defense attorney is protected and may not be released or made public upon subpoena, search
166     warrant, discovery proceedings, or otherwise.
167          (ii) A record of a contracted parental defense attorney is subject to legislative
168     subpoena, under Title 36, Chapter 14, Legislative Subpoena Powers.
169          (b) The Legislature shall maintain a record released in accordance with Subsection
170     (6)(a)(ii) as confidential.
171          Section 3. Section 63M-7-211.1 is enacted to read:
172          63M-7-211.1. Child welfare parental defense contracts.
173          (1) (a) The commission may enter into a contract with a parental defense attorney to
174     provide services for an indigent parent who is the subject of a petition alleging abuse, neglect,
175     or dependency, and requires a parental defense attorney under Section 78A-6-1111.
176          (b) Payment for the representation, costs, and expenses of a contracted parental defense
177     attorney shall be made from the Child Welfare Parental Defense Fund in accordance with
178     Section 63M-7-211.2.
179          (c) The parental defense attorney shall maintain the minimum qualifications as
180     provided by this section.

181          (2) A contracted parental defense attorney shall:
182          (a) adequately prepare for and attend all court hearings, including initial and continued
183     shelter hearings and mediations;
184          (b) fully advise the client of the nature of the proceedings and of the client's rights,
185     communicate to the client any offers of settlement or compromise, and advise the client
186     regarding the reasonably foreseeable consequences of any course of action in the proceedings;
187          (c) be reasonably available to consult with the client outside of court proceedings;
188          (d) where attendance is reasonably necessary, attend meetings regarding the client's
189     case with representatives of one or more of the Division of Child and Family Services, the
190     Office of the Attorney General, or the Office of Guardian Ad Litem;
191          (e) represent the interest of the client at all stages of the proceedings before the trial
192     court Ŝ→ , and on appeal as required by law ←Ŝ ; and
193          (f) participate in the training courses and otherwise maintain the standards described in
194     Subsection (4).
195          (3) If the commission enters into a contract with a firm to provide parental defense
196     attorney services under this section, the contract shall require that each attorney in the firm who
197     will provide representation of a parent in a child welfare case under the contract perform the
198     duties described in Subsection (2).
199          (4) (a) Except as otherwise provided in Subsection (4)(b), a contracted parental defense
200     attorney shall:
201          (i) complete a basic training course provided by the program;
202          (ii) have experience in child welfare cases; and
203          (iii) participate each calendar year in continuing legal education courses providing no
204     fewer than eight hours of instruction in child welfare law.
205          (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
206     commission may, by rule, exempt from the requirements of Subsection (4)(a) an attorney who
207     has equivalent training or adequate experience.
208          Section 4. Section 63M-7-211.2 is enacted to read:
209          63M-7-211.2. Child Welfare Parental Defense Fund -- Agreements for coverage
210     by the Child Welfare Parental Defense Fund.
211          (1) There is created an expendable special revenue fund known as the "Child Welfare

212     Parental Defense Fund."
213          (2) Subject to availability, the commission may make distributions from the fund as
214     required in this section or Section 63M-7-211 or 63M-7-211.1 for the following purposes:
215          (a) to pay for the representation, costs, expert witness fees, and expenses of parental
216     defense attorneys who are under contract with the commission to provide parental defense in
217     child welfare cases for an indigent parent that is the subject of a petition alleging abuse,
218     neglect, or dependency;
219          (b) for administrative costs under this section or Section 63M-7-211 or 63M-7-211.1;
220     and
221          (c) for reasonable expenses directly related to the functioning of the program, including
222     training and travel expenses.
223          (3) The fund consists of:
224          (a) appropriations made to the fund by the Legislature;
225          (b) interest and earnings from the investment of fund money;
226          (c) proceeds deposited by participating counties under this section; and
227          (d) private contributions to the fund.
228          (4) The state treasurer shall invest the money in the fund by following the procedures
229     and requirements of Title 51, Chapter 7, State Money Management Act.
230          (5) (a) If the commission anticipates a deficit in the fund during a fiscal year:
231          (i) the commission shall request an appropriation from the Legislature; and
232          (ii) the Legislature may fund the anticipated deficit through appropriation.
233          (b) If the anticipated deficit is not funded by the Legislature, the commission may
234     request an interim assessment to participating counties as described in Subsection (6) to fund
235     the anticipated deficit.
236          (6) (a) A county legislative body and the commission may annually enter into a written
237     agreement for the commission to provide parental defense attorney services in the county out of
238     the fund.
239          (b) The agreement described under Subsection (6)(a) shall:
240          (i) require the county to pay into the fund an amount defined by a formula established
241     by the commission by rule under Title 63G, Chapter 3, Utah Administrative Rulemaking Act;
242     and

243          (ii) provide for revocation of the agreement for failure to pay an assessment on the due
244     date established by the commission by rule under Title 63G, Chapter 3, Utah Administrative
245     Rulemaking Act.
246          (7) (a) After the first year of operation of the fund, any county that elects to initiate
247     participation in the fund, or reestablish participation in the fund after participation was
248     terminated, shall be required to make an equity payment, in addition to the assessment
249     provided in Subsection (5).
250          (b) The commission shall determine the amount of the equity payment described in
251     Subsection (7)(a) by rule established by the commission under Title 63G, Chapter 3, Utah
252     Administrative Rulemaking Act.
253          (8) A county that elects to withdraw from participation in the fund, or whose
254     participation in the fund is revoked due to failure to pay the county's assessment, as described
255     in Subsection (6), when due, shall forfeit any right to any previously paid assessment by the
256     county or coverage from the fund.
257          Section 5. Section 77-32-802 is amended to read:
258          77-32-802. Commission members -- Member qualifications -- Terms -- Vacancy.
259          (1) The commission is composed of 14 voting members and one ex officio, nonvoting
260     member.
261          (a) The governor, with the consent of the Senate, shall appoint the following 12 voting
262     members:
263          (i) two practicing criminal defense attorneys recommended by the Utah Association of
264     Criminal Defense Lawyers;
265          (ii) one attorney practicing in juvenile delinquency defense recommended by the Utah
266     Association of Criminal Defense Lawyers;
267          (iii) an attorney representing minority interests recommended by the Utah Minority Bar
268     Association;
269          (iv) one member recommended by the Utah Association of Counties from a county of
270     the first or second class;
271          (v) one member recommended by the Utah Association of Counties from a county of
272     the third through sixth class;
273          (vi) a director of a county public defender organization recommended by the Utah

274     Association of Criminal Defense Lawyers;
275          (vii) two members recommended by the Utah League of Cities and Towns from its
276     membership;
277          (viii) a retired judge recommended by the Judicial Council;
278          (ix) one member of the Utah Legislature selected jointly by the Speaker of the House
279     and President of the Senate; and
280           (x) one attorney practicing in the area of parental defense, recommended by an entity
281     funded under [Title 63A, Chapter 11,] the Child Welfare Parental Defense Program created in
282     Section 63M-7-211.
283          (b) The Judicial Council shall appoint a voting member from the Administrative Office
284     of the Courts.
285          (c) The executive director of the State Commission on Criminal and Juvenile Justice or
286     the executive director's designee is a voting member of the commission.
287          (d) The director of the commission, appointed under Section 77-32-803, is an ex
288     officio, nonvoting member of the commission.
289          (2) A member appointed by the governor shall serve a four-year term, except as
290     provided in Subsection (3).
291          (3) The governor shall stagger the initial terms of appointees so that approximately half
292     of the members appointed by the governor are appointed every two years.
293          (4) A member appointed to the commission shall have significant experience in
294     indigent criminal defense , parental defense, or juvenile defense in delinquency proceedings or
295     have otherwise demonstrated a strong commitment to providing effective representation in
296     indigent defense services.
297          (5) A person who is currently employed solely as a criminal prosecuting attorney may
298     not serve as a member of the commission .
299          (6) A commission member shall hold office until the member's successor is appointed.
300          (7) The commission may remove a member for incompetence, dereliction of duty,
301     malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
302          (8) If a vacancy occurs in the membership for any reason, a replacement shall be
303     appointed for the remaining unexpired term in the same manner as the original appointment.
304          (9) The commission shall annually elect a chair from the commission's membership to

305     serve a one-year term. A commission member may not serve as chair of the commission for
306     more than three consecutive terms.
307          (10) A member may not receive compensation or benefits for the member's service, but
308     may receive per diem and travel expenses in accordance with:
309          (a) Section 63A-3-106;
310          (b) Section 63A-3-107; and
311          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
312     63A-3-107.
313          (11) (a) A majority of the members of the commission constitutes a quorum.
314          (b) If a quorum is present, the action of a majority of the voting members present
315     constitutes the action of the commission.
316          Section 6. Repealer.
317          This bill repeals:
318          Section 63A-11-101, Title.
319          Section 63A-11-102, Definitions.
320          Section 63A-11-103, Creation of program.
321          Section 63A-11-104, Program -- Duties -- Contracting.
322          Section 63A-11-105, Program -- Duties, functions, and responsibilities.
323          Section 63A-11-106, Annual report -- Budget.
324          Section 63A-11-107, Records access.
325          Section 63A-11-201, Child welfare parental defense contracts -- Qualifications.
326          Section 63A-11-202, Contracted parental defense attorney.
327          Section 63A-11-203, Child Welfare Parental Defense Fund -- Creation.
328          Section 63A-11-204, Agreements for coverage by the Child Welfare Parental
329     Defense Fund -- Eligibility -- County and state obligations -- Termination -- Revocation.
330          Section 7. Appropriation.
331          The following sums of money are appropriated for the fiscal year beginning July 1,
332     2019, and ending June 30, 2020. These are additions to amounts previously appropriated for
333     fiscal year 2020. The Legislature has reviewed the following expendable funds. The Legislature
334     authorizes the State Division of Finance to transfer amounts between funds and accounts as
335     indicated. Outlays and expenditures from the funds or accounts to which the money is

336     transferred may be made without further legislative action, in accordance with statutory
337     provisions relating to the funds or accounts.
338     ITEM 1
339          To Commission on Criminal and Juvenile Justice -- Child Welfare Parental
340               Defense Fund
341               From General Fund

342               Schedule of Programs:
343                    Child Welfare Parental Defense Fund          $6,500