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7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to placement of a minor.
10 Highlighted Provisions:
11 This bill:
12 ▸ addresses the weight to be given to the desires of a minor;
13 ▸ clarifies application to minors;
14 ▸ requires the court and the Division of Child and Family Services to make findings
15 explaining why their opinions differ from a minor's express wishes; and
16 ▸ makes technical and conforming changes.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 78A-6-305, as renumbered and amended by Laws of Utah 2008, Chapter 3
24 78A-6-307, as last amended by Laws of Utah 2018, Chapters 235 and 285
25 78A-6-307.5, as last amended by Laws of Utah 2018, Chapter 235
26 78A-6-314, as last amended by Laws of Utah 2018, Chapter 359
27
28 Be it enacted by the Legislature of the state of Utah:
29 Section 1. Section 78A-6-305 is amended to read:
30 78A-6-305. Opportunity for a minor to testify or address the court.
31 (1) For purposes of this section, "postadjudication hearing" means:
32 (a) a [
33 (b) a permanency hearing; or
34 (c) a review hearing, except a drug court review hearing.
35 (2) A [
36 the abuse, neglect, or dependency of the [
37 (a) requiring the [
38 detrimental to the [
39 (b) the [
40 in relation to the hearing.
41 (3) A court may, in the court's discretion, order that a [
42 Subsection (2) be present at a hearing that is not a postadjudication hearing.
43 (4) (a) Except as provided in Subsection (4)(b), at any hearing in a case relating to the
44 abuse, neglect, or dependency of a [
45 hearing, the court shall:
46 (i) ask the [
47 the court or testify; and
48 (ii) if the [
49 [
50 (b) Subsection (4)(a) does not apply if the court determines that:
51 (i) it would be detrimental to the [
52 (ii) the [
53 in relation to the hearing.
54 (c) Subject to applicable court rules, the court may allow the [
55 the court in camera.
56 (d) If a minor 14 years of age or older desires an opportunity to address the court or
57 testify, the court shall give the minor's desires added weight, but may not treat the minor's
58 desires as the single controlling factor in a postadjudication hearing or other hearing described
59 in Subsection (3).
60 (5) Nothing in this section prohibits a [
61 that the [
62 orders otherwise.
63 Section 2. Section 78A-6-307 is amended to read:
64 78A-6-307. Shelter hearing -- Placement -- DCFS custody.
65 (1) As used in this section:
66 (a) "Friend" means an adult the child knows and is comfortable with but who is not a
67 natural parent or relative.
68 (b) (i) "Natural parent," notwithstanding [
69 (A) a biological or adoptive mother of the child;
70 (B) an adoptive father of the child; or
71 (C) a biological father of the child who:
72 (I) was married to the child's biological mother at the time the child was conceived or
73 born; or
74 (II) has strictly complied with [
75 78B-6-122, [
76 custodial parent.
77 (ii) The definition of "natural parent" described in Subsection (1)(b)(i) applies
78 regardless of whether the child has been or will be placed with adoptive parents or whether
79 adoption has been or will be considered as a long-term goal for the child.
80 (c) "Relative" means:
81 (i) an adult who is the child's grandparent, great grandparent, aunt, great aunt, uncle,
82 great uncle, brother-in-law, sister-in-law, stepparent, first cousin, stepsibling, or sibling;
83 (ii) a first cousin of the child's parent;
84 (iii) an adult who is an adoptive parent of the child's sibling; or
85 (iv) in the case of a child defined as an "Indian" under the Indian Child Welfare Act, 25
86 U.S.C. Sec. 1903, "relative" also means an "extended family member" as defined by that
87 statute.
88 (2) (a) At the shelter hearing, when the court orders that a child be removed from the
89 custody of the child's parent in accordance with the requirements of Section 78A-6-306, the
90 court shall first determine whether there is another natural parent with whom the child was not
91 residing at the time the events or conditions that brought the child within the court's jurisdiction
92 occurred, who desires to assume custody of the child.
93 (b) If another natural parent requests custody under Subsection (2)(a), the court shall
94 place the child with that parent unless it finds that the placement would be unsafe or otherwise
95 detrimental to the child.
96 (c) [
97 Subsection (18)(b).
98 (d) (i) The court shall make a specific finding regarding the fitness of the parent
99 described in Subsection (2)(b) to assume custody, and the safety and appropriateness of the
100 placement.
101 (ii) The court shall, at a minimum, order the division to visit the parent's home, comply
102 with the criminal background check provisions described in Section 78A-6-308, and check the
103 division's management information system for any previous reports of abuse or neglect
104 received by the division regarding the parent at issue.
105 (iii) The court may order the division to conduct any further investigation regarding the
106 safety and appropriateness of the placement.
107 (iv) The division shall report its findings in writing to the court.
108 (v) The court may place the child in the temporary custody of the division, pending its
109 determination regarding that placement.
110 (3) If the court orders placement with a parent under Subsection (2):
111 (a) the child and the parent are under the continuing jurisdiction of the court;
112 (b) the court may order:
113 (i) that the parent assume custody subject to the supervision of the court; and
114 (ii) that services be provided to the parent from whose custody the child was removed,
115 the parent who has assumed custody, or both; and
116 (c) the court shall order reasonable parent-time with the parent from whose custody the
117 child was removed, unless parent-time is not in the best interest of the child.
118 (4) The court shall periodically review an order described in Subsection (3) to
119 determine whether:
120 (a) placement with the parent continues to be in the child's best interest;
121 (b) the child should be returned to the original custodial parent;
122 (c) the child should be placed in the custody of a relative, pursuant to Subsections (7)
123 through (12); or
124 (d) the child should be placed in the custody of the division.
125 (5) The time limitations described in Section 78A-6-312 with regard to reunification
126 efforts apply to children placed with a previously noncustodial parent in accordance with
127 Subsection (2).
128 (6) Legal custody of the child is not affected by an order entered under Subsection (2)
129 or (3). [
130 shall petition that court for modification of the order.
131 (7) If, at the time of the shelter hearing, a child is removed from the custody of the
132 child's parent and is not placed in the custody of the child's other parent, the court:
133 (a) shall, at that time, determine whether, subject to Subsections (18)(c) through (e),
134 there is a relative or a friend who is able and willing to care for the child, which may include
135 asking a child, who is of sufficient maturity to articulate the child's wishes in relation to a
136 placement, if there is a relative or friend with whom the child would prefer to reside;
137 (b) may order the division to conduct a reasonable search to determine whether, subject
138 to Subsections (18)(c) through (e), there are relatives or friends who are willing and
139 appropriate, in accordance with the requirements of this part and Title 62A, Chapter 4a, Part 2,
140 Child Welfare Services, for placement of the child;
141 (c) shall order the parents to cooperate with the division, within five working days, to,
142 subject to Subsections (18)(c) through (e), provide information regarding relatives or friends
143 who may be able and willing to care for the child; and
144 (d) may order that the child be placed in the custody of the division pending the
145 determination under Subsection (7)(a).
146 (8) This section may not be construed as a guarantee that an identified relative or friend
147 will receive custody of the child.
148 (9) Subject to Subsections (18)(c) through (e), preferential consideration shall be given
149 to a relative's or a friend's request for placement of the child, if it is in the best interest of the
150 child, and the provisions of this section are satisfied.
151 (10) (a) If a willing relative or friend is identified under Subsection (7)(a), the court
152 shall make a specific finding regarding:
153 (i) the fitness of that relative or friend as a placement for the child; and
154 (ii) the safety and appropriateness of placement with that relative or friend.
155 (b) [
156 relative or friend shall be willing to cooperate with the child's permanency goal.
157 (11) (a) In making the finding described in Subsection (10)(a), the court shall, at a
158 minimum, order the division to:
159 (i) if the child may be placed with a relative, conduct a background check that includes:
160 (A) completion of a nonfingerprint-based, Utah Bureau of Criminal Identification
161 background check of the relative;
162 (B) a completed search, relating to the relative, of the Management Information System
163 described in Section 62A-4a-1003; and
164 (C) a background check that complies with the criminal background check provisions
165 described in Section 78A-6-308, of each nonrelative, as defined in [
166 62A-4a-209[
167 (ii) if the child will be placed with a noncustodial parent, complete a background check
168 that includes:
169 (A) the background check requirements applicable to an emergency placement with a
170 noncustodial parent that are described in Subsections 62A-4a-209(5) and (7);
171 (B) a completed search, relating to the noncustodial parent of the child, of the
172 Management Information System described in Section 62A-4a-1003; and
173 (C) a background check that complies with the criminal background check provisions
174 described in Section 78A-6-308, of each nonrelative, as defined in [
175 62A-4a-209[
176 (iii) if the child may be placed with an individual other than a noncustodial parent or a
177 relative, conduct a criminal background check of the individual, and each adult that resides in
178 the household where the child may be placed, that complies with the criminal background
179 check provisions described in Section 78A-6-308;
180 (iv) visit the relative's or friend's home;
181 (v) check the division's management information system for any previous reports of
182 abuse or neglect regarding the relative or friend at issue;
183 (vi) report the division's findings in writing to the court; and
184 (vii) provide sufficient information so that the court may determine whether:
185 (A) the relative or friend has any history of abusive or neglectful behavior toward other
186 children that may indicate or present a danger to this child;
187 (B) the child is comfortable with the relative or friend;
188 (C) the relative or friend recognizes the parent's history of abuse and is committed to
189 protect the child;
190 (D) the relative or friend is strong enough to resist inappropriate requests by the parent
191 for access to the child, in accordance with court orders;
192 (E) the relative or friend is committed to caring for the child as long as necessary; and
193 (F) the relative or friend can provide a secure and stable environment for the child.
194 (b) The division may determine to conduct, or the court may order the division to
195 conduct, any further investigation regarding the safety and appropriateness of the placement.
196 (c) The division shall complete and file its assessment regarding placement with a
197 relative or friend as soon as practicable, in an effort to facilitate placement of the child with a
198 relative or friend.
199 (12) (a) The court may place a child described in Subsection (2)(a) in the temporary
200 custody of the division, pending the division's investigation pursuant to Subsections (10) and
201 (11), and the court's determination regarding the appropriateness of that placement.
202 (b) The court shall ultimately base its determination regarding the appropriateness of a
203 placement with a relative or friend on the best interest of the child.
204 (13) When a court places a child described in Subsection (7) in the custody of the
205 child's relative or friend:
206 (a) the court:
207 (i) shall order the relative or friend assume custody, subject to the continuing
208 supervision of the court; and
209 (ii) may order the division provide necessary services to the child and the child's
210 relative or friend, including the monitoring of the child's safety and well-being;
211 (b) the child and the relative or friend in whose custody the child is placed are under
212 the continuing jurisdiction of the court;
213 (c) the court may enter any order that it considers necessary for the protection and best
214 interest of the child;
215 (d) the court shall provide for reasonable parent-time with the parent or parents from
216 whose custody the child was removed, unless parent-time is not in the best interest of the child;
217 and
218 (e) the court shall conduct a periodic review no less often than every six months, to
219 determine whether:
220 (i) placement with the relative or friend continues to be in the child's best interest;
221 (ii) the child should be returned home; or
222 (iii) the child should be placed in the custody of the division.
223 (14) No later than 12 months after placement with a relative or friend, the court shall
224 schedule a hearing for the purpose of entering a permanent order in accordance with the best
225 interest of the child.
226 (15) The time limitations described in Section 78A-6-312, with regard to reunification
227 efforts, apply to children placed with a relative or friend pursuant to Subsection (7).
228 (16) (a) If the court awards custody of a child to the division, and the division places
229 the child with a relative, the division shall:
230 (i) conduct a criminal background check of the relative that complies with the criminal
231 background check provisions described in Section 78A-6-308; and
232 (ii) if the results of the criminal background check described in Subsection (16)(a)(i)
233 would prohibit the relative from having direct access to the child under Section 62A-2-120, the
234 division shall:
235 (A) take the child into physical custody; and
236 (B) within three days, excluding weekends and holidays, after taking the child into
237 physical custody under Subsection (16)(a)(ii)(A), give written notice to the court, and all
238 parties to the proceedings, of the division's action.
239 (b) Nothing in Subsection (16)(a) prohibits the division from placing a child with a
240 relative, pending the results of the background check described in Subsection (16)(a) on the
241 relative.
242 (17) When the court orders that a child be removed from the custody of the child's
243 parent and does not award custody and guardianship to another parent, relative, or friend under
244 this section, the court shall order that the child be placed in the temporary custody of the
245 [
246 and to be provided with care and services in accordance with this chapter and Title 62A,
247 Chapter 4a, Child and Family Services.
248 (18) (a) Any preferential consideration that a relative or friend is initially granted
249 pursuant to Subsection (9) expires 120 days from the date of the shelter hearing. After that time
250 period has expired, a relative or friend who has not obtained custody or asserted an interest in a
251 child, may not be granted preferential consideration by the division or the court.
252 (b) When the time period described in Subsection (18)(a) has expired, the preferential
253 consideration, which is initially granted to a natural parent in accordance with Subsection (2),
254 is limited. After that time the court shall base its custody decision on the best interest of the
255 child.
256 (c) [
257 (18)(a), the following order of preference shall be applied when determining the [
258 individual with whom a child will be placed, provided that the [
259 and has the ability, to care for the child:
260 (i) a noncustodial parent of the child;
261 (ii) a relative of the child;
262 (iii) subject to Subsection (18)(d), a friend, if the friend is a licensed foster parent; and
263 (iv) other placements that are consistent with the requirements of law.
264 (d) (i) In determining whether a friend is a willing and appropriate placement for a
265 child, neither the court, nor the division, is required to consider more than one friend
266 designated by each parent of the child and one friend designated by the child, if the child is of
267 sufficient maturity to articulate the child's wishes in relation to a placement.
268 (ii) The court or the division may limit the number of designated friends to two, one of
269 whom shall be a friend designated by the child, if the child is of sufficient maturity to articulate
270 the child's wishes in relation to a placement.
271 (iii) The court and the division shall give preference to a friend designated by the child,
272 if:
273 (A) the child is of sufficient maturity to articulate the child's wishes; and
274 (B) the basis for removing the child under Section 78A-6-306 is sexual abuse of the
275 child.
276 (e) If a parent of the child or the child, if the child is of sufficient maturity to articulate
277 the child's wishes in relation to a placement, is not able to designate a friend who is a licensed
278 foster parent for placement of the child, but is able to identify a friend who is willing to become
279 licensed as a foster parent:
280 (i) the department shall fully cooperate to expedite the licensing process for the friend;
281 and
282 (ii) if the friend becomes licensed as a foster parent within the time frame described in
283 Subsection (18)(a), the court shall determine whether it is in the best interests of the child to
284 place the child with the friend.
285 (19) If, following the shelter hearing, the child is placed with [
286 who is not a parent, a relative, a friend, or a former foster parent of the child, priority shall be
287 given to a foster placement with a man and a woman who are married to each other, unless it is
288 in the best interests of the child to place the child with a single foster parent.
289 (20) In determining the placement of a child, neither the court, nor the division, may
290 take into account, or discriminate against, the religion of [
291 the child may be placed, unless the purpose of taking religion into account is to place the child
292 with [
293 (21) If the court's decision differs from a child's express wishes, if the child is of
294 sufficient maturity to articulate the wishes in relation to the child's placement, the court shall
295 make findings explaining why the court's decision differs from the child's wishes.
296 Section 3. Section 78A-6-307.5 is amended to read:
297 78A-6-307.5. Post-shelter hearing placement of a minor who is in division
298 custody.
299 (1) If the court awards custody of a [
300 78A-6-307, or as otherwise permitted by law, the division shall determine ongoing placement
301 of the [
302 (2) In placing a [
303 (a) except as provided in Subsections (2)(b) and (d), shall comply with the applicable
304 background check provisions described in Section 78A-6-307;
305 (b) is not required to receive approval from the court [
306 placement;
307 (c) shall, within three days, excluding weekends and holidays, after making the
308 placement, give written notice to the court, and [
309 placement has been made;
310 (d) may place the [
311 same criteria established for an emergency placement under Section 62A-4a-209, pending the
312 results of:
313 (i) the background check described in Subsection 78A-6-307(16)(a); and
314 (ii) evaluation with the noncustodial parent, relative, or friend to determine the
315 individual's capacity to provide ongoing care to the [
316 (e) shall take into consideration the will of the [
317 sufficient maturity to articulate the [
318 placement.
319 (3) If the division's placement decision differs from a minor's express wishes if the
320 minor is of sufficient maturity to state the wishes in relation to the minor's placement, the
321 division shall make findings explaining why the division's decision differs from the minor's
322 wishes in a writing provided to the court and the minor's guardian ad litem.
323 Section 4. Section 78A-6-314 is amended to read:
324 78A-6-314. Permanency hearing -- Final plan -- Petition for termination of
325 parental rights filed -- Hearing on termination of parental rights.
326 (1) (a) When reunification services have been ordered in accordance with Section
327 78A-6-312, with regard to a minor who is in the custody of the Division of Child and Family
328 Services, a permanency hearing shall be held by the court no later than 12 months after the day
329 on which the minor was initially removed from the minor's home.
330 (b) If reunification services were not ordered at the dispositional hearing, a permanency
331 hearing shall be held within 30 days after the day on which the dispositional hearing ends.
332 (2) (a) If reunification services were ordered by the court in accordance with Section
333 78A-6-312, the court shall, at the permanency hearing, determine, consistent with Subsection
334 (3), whether the minor may safely be returned to the custody of the minor's parent.
335 (b) If the court finds, by a preponderance of the evidence, that return of the minor to
336 the minor's parent would create a substantial risk of detriment to the minor's physical or
337 emotional well-being, the minor may not be returned to the custody of the minor's parent.
338 (c) Prima facie evidence that return of the minor to a parent or guardian would create a
339 substantial risk of detriment to the minor is established if:
340 (i) the parent or guardian fails to:
341 (A) participate in a court approved child and family plan;
342 (B) comply with a court approved child and family plan in whole or in part; or
343 (C) meet the goals of a court approved child and family plan; or
344 (ii) the [
345 (A) intentionally, knowingly, or recklessly causes the death of another parent of the
346 [
347 (B) is identified by a law enforcement agency as the primary suspect in an investigation
348 for intentionally, knowingly, or recklessly causing the death of another parent of the [
349 minor; or
350 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
351 recklessly causing the death of another parent of the [
352 (3) In making a determination under Subsection (2)(a), the court shall review and
353 consider:
354 (a) the report prepared by the Division of Child and Family Services;
355 (b) any admissible evidence offered by the minor's guardian ad litem;
356 (c) any report submitted by the division under Subsection 78A-6-315(3)(a)(i);
357 (d) any evidence regarding the efforts or progress demonstrated by the parent; and
358 (e) the extent to which the parent cooperated and [
359 (4) With regard to a case where reunification services were ordered by the court, if a
360 minor is not returned to the minor's parent or guardian at the permanency hearing, the court
361 shall, unless the time for the provision of reunification services is extended under Subsection
362 [
363 (a) order termination of reunification services to the parent;
364 (b) make a final determination regarding whether termination of parental rights,
365 adoption, or permanent custody and guardianship is the most appropriate final plan for the
366 minor, taking into account the minor's primary permanency plan established by the court
367 pursuant to Section 78A-6-312; and
368 (c) establish a concurrent permanency plan that identifies the second most appropriate
369 final plan for the minor, if appropriate.
370 (5) The court may order another planned permanent living arrangement for a minor 16
371 years old or older upon entering the following findings:
372 (a) the Division of Child and Family Services has documented intensive, ongoing, and
373 unsuccessful efforts to reunify the minor with the minor's parent or parents, or to secure a
374 placement for the minor with a guardian, an adoptive parent, or an individual described in
375 Subsection 78A-6-306(6)(e);
376 (b) the Division of Child and Family Services has demonstrated that the division has
377 made efforts to normalize the life of the minor while in the division's custody, in accordance
378 with Sections 62A-4a-210 through 62A-4a-212;
379 (c) the minor prefers another planned permanent living arrangement; and
380 (d) there is a compelling reason why reunification or a placement described in
381 Subsection (5)(a) is not in the minor's best interest.
382 (6) Except as provided in Subsection (7), the court may not extend reunification
383 services beyond 12 months after the day on which the minor was initially removed from the
384 minor's home, in accordance with the provisions of Section 78A-6-312.
385 (7) (a) Subject to Subsection (7)(b), the court may extend reunification services for no
386 more than 90 days if the court finds, beyond a preponderance of the evidence, that:
387 (i) there has been substantial compliance with the child and family plan;
388 (ii) reunification is probable within that 90-day period; and
389 (iii) the extension is in the best interest of the minor.
390 (b) (i) Except as provided in Subsection (7)(c), the court may not extend any
391 reunification services beyond 15 months after the day on which the minor was initially
392 removed from the minor's home.
393 (ii) Delay or failure of a parent to establish paternity or seek custody does not provide a
394 basis for the court to extend services for that parent beyond the 12-month period described in
395 Subsection (6).
396 (c) In accordance with Subsection (7)(d), the court may extend reunification services
397 for one additional 90-day period, beyond the 90-day period described in Subsection (7)(a), if:
398 (i) the court finds, by clear and convincing evidence, that:
399 (A) the parent has substantially complied with the child and family plan;
400 (B) it is likely that reunification will occur within the additional 90-day period; and
401 (C) the extension is in the best interest of the [
402 (ii) the court specifies the facts upon which the findings described in Subsection
403 (7)(c)(i) are based; and
404 (iii) the court specifies the time period in which it is likely that reunification will occur.
405 (d) A court may not extend the time period for reunification services without
406 complying with the requirements of this Subsection (7) before the extension.
407 (e) In determining whether to extend reunification services for a minor, a court shall
408 take into consideration the status of the minor siblings of the minor.
409 (8) The court may, in its discretion:
410 (a) enter any additional order that it determines to be in the best interest of the minor,
411 so long as that order does not conflict with the requirements and provisions of Subsections (4)
412 through (7); or
413 (b) order the division to provide protective supervision or other services to a minor and
414 the minor's family after the division's custody of a minor has been terminated.
415 (9) (a) If the final plan for the minor is to proceed toward termination of parental
416 rights, the petition for termination of parental rights shall be filed, and a pretrial held, within 45
417 calendar days after the permanency hearing.
418 (b) If the division opposes the plan to terminate parental rights, the court may not
419 require the division to file a petition for the termination of parental rights, except as required
420 under Subsection 78A-6-316(2).
421 (10) (a) Any party to an action may, at any time, petition the court for an expedited
422 permanency hearing on the basis that continuation of reunification efforts are inconsistent with
423 the permanency needs of the minor.
424 (b) If the court so determines, it shall order, in accordance with federal law, that:
425 (i) the minor be placed in accordance with the permanency plan; and
426 (ii) whatever steps are necessary to finalize the permanent placement of the minor be
427 completed as quickly as possible.
428 (11) Nothing in this section may be construed to:
429 (a) entitle any parent to reunification services for any specified period of time;
430 (b) limit a court's ability to terminate reunification services at any time [
431 a permanency hearing; or
432 (c) limit or prohibit the filing of a petition for termination of parental rights by any
433 party, or a hearing on termination of parental rights, at any time prior to a permanency hearing.
434 (12) (a) Subject to Subsection (12)(b), if a petition for termination of parental rights is
435 filed prior to the date scheduled for a permanency hearing, the court may consolidate the
436 hearing on termination of parental rights with the permanency hearing.
437 (b) For purposes of Subsection (12)(a), if the court consolidates the hearing on
438 termination of parental rights with the permanency hearing:
439 (i) the court shall first make a finding regarding whether reasonable efforts have been
440 made by the Division of Child and Family Services to finalize the permanency plan for the
441 minor; and
442 (ii) any reunification services shall be terminated in accordance with the time lines
443 described in Section 78A-6-312.
444 (c) A decision on a petition for termination of parental rights shall be made within 18
445 months from the day on which the minor is removed from the minor's home.
446 (13) If a court determines that a [
447 [
448 state.
449 (14) (a) If a minor 14 years of age or older desires an opportunity to address the court
450 or testify regarding permanency or placement, the court shall give the minor's wishes added
451 weight, but may not treat the minor's wishes as the single controlling factor under this section.
452 (b) If the court's decision under this section differs from a minor's express wishes if the
453 minor is of sufficient maturity to articulate the wishes in relation to permanency or the minor's
454 placement, the court shall make findings explaining why the court's decision differs from the
455 minor's wishes.