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7 LONG TITLE
8 General Description:
9 This bill makes amendments to child welfare provisions.
10 Highlighted Provisions:
11 This bill:
12 ▸ clarifies that the division may support a finding of child abuse or neglect and that a
13 judge may substantiate a finding;
14 ▸ clarifies language regarding policies and rules;
15 ▸ clarifies procedures for the Department of Human Services regarding child
16 pornography;
17 ▸ requires the Office of Licensing, within the Department of Human Services, to run a
18 background check on employees of congregate care settings where a child may be
19 placed by the Division of Child and Family Services;
20 ▸ defines "threatened harm";
21 ▸ outlines requirements for a juvenile court to follow when a child is placed in a
22 residential treatment program;
23 ▸ limits who may be involved in the development of a child and family plan;
24 ▸ modifies the presumption that reunification services will not be provided to a parent
25 who voluntarily relinquishes parental rights under certain conditions;
26 ▸ requires that an attorney guardian ad litem only interview a child in the presence of
27 the child's parent if the parent consents or the parent's legal counsel is present;
28 ▸ clarifies when a court may order the division to provide protective supervision
29 services;
30 ▸ modifies provisions relating to who may adopt a child and with whom the division
31 may place a child who is in foster care;
32 ▸ modifies provisions relating to a court's consideration of multiple petitions for
33 adoption; and
34 ▸ makes technical changes.
35 Money Appropriated in this Bill:
36 None
37 Other Special Clauses:
38 None
39 Utah Code Sections Affected:
40 AMENDS:
41 51-9-405, as last amended by Laws of Utah 2016, Chapter 144
42 62A-1-118, as last amended by Laws of Utah 2015, Chapter 255
43 62A-1-122, as enacted by Laws of Utah 2018, Chapter 285
44 62A-2-120, as last amended by Laws of Utah 2017, Chapters 78, 181, and 400
45 62A-4a-101, as last amended by Laws of Utah 2017, Chapters 209, 323, and 459
46 62A-4a-102, as last amended by Laws of Utah 2015, Chapter 258
47 62A-4a-105.5, as enacted by Laws of Utah 1994, Chapter 260
48 62A-4a-110, as last amended by Laws of Utah 2009, Chapter 75
49 62A-4a-112, as last amended by Laws of Utah 2009, Chapter 75
50 62A-4a-117, as last amended by Laws of Utah 2016, Chapter 231
51 62A-4a-118, as last amended by Laws of Utah 2017, Chapter 478
52 62A-4a-201, as last amended by Laws of Utah 2017, Chapter 330
53 62A-4a-202.6, as last amended by Laws of Utah 2018, Chapter 415
54 62A-4a-205, as last amended by Laws of Utah 2017, Chapter 323
55 62A-4a-412, as last amended by Laws of Utah 2017, Chapters 209 and 459
56 62A-4a-602, as last amended by Laws of Utah 2017, Chapter 148
57 62A-4a-711, as enacted by Laws of Utah 2017, Chapter 401
58 62A-4a-905, as last amended by Laws of Utah 2009, Chapter 75
59 62A-4a-1003, as last amended by Laws of Utah 2017, Chapter 209
60 63G-4-402, as last amended by Laws of Utah 2011, Chapter 208
61 76-5-110, as last amended by Laws of Utah 2011, Chapter 366
62 78A-6-105, as last amended by Laws of Utah 2018, Chapters 45, 91, 192, 235, 285, and
63 415
64 78A-6-117, as last amended by Laws of Utah 2018, Chapters 117 and 285
65 78A-6-302, as last amended by Laws of Utah 2018, Chapter 91
66 78A-6-306, as last amended by Laws of Utah 2018, Chapter 91
67 78A-6-312, as last amended by Laws of Utah 2018, Chapter 91
68 78A-6-317, as last amended by Laws of Utah 2014, Chapters 90 and 275
69 78A-6-902, as last amended by Laws of Utah 2018, Chapter 359
70 78A-6-1103, as last amended by Laws of Utah 2014, Chapter 265
71 78A-6-1302, as last amended by Laws of Utah 2017, Chapter 330
72 78B-6-102, as renumbered and amended by Laws of Utah 2008, Chapter 3
73 78B-6-103, as last amended by Laws of Utah 2017, Chapters 110, 280, and 417
74 78B-6-117, as last amended by Laws of Utah 2018, Chapter 43 and further amended by
75 Revisor Instructions, Laws of Utah 2018, Chapter 446
76 78B-6-133, as last amended by Laws of Utah 2015, Chapter 194
77 ENACTS:
78 78A-6-311.5, Utah Code Annotated 1953
79
80 Be it enacted by the Legislature of the state of Utah:
81 Section 1. Section 51-9-405 is amended to read:
82 51-9-405. Substance Abuse Prevention Account established -- Funding -- Uses.
83 (1) There is created a restricted account within the General Fund known as the
84 Substance Abuse Prevention Account.
85 (2) (a) The Division of Finance shall allocate to the Substance Abuse Prevention
86 Account from the collected surcharge established in Section 51-9-401:
87 (i) 2.5% for the juvenile court, but not to exceed the amount appropriated by the
88 Legislature; and
89 (ii) 2.5% for the State Board of Education, but not to exceed the amount appropriated
90 by the Legislature.
91 (b) The juvenile court shall use the allocation to pay for compensatory service
92 programs required by [
93 (c) The State Board of Education shall use the allocation in public school programs for:
94 (i) substance abuse prevention and education;
95 (ii) substance abuse prevention training for teachers and administrators; and
96 (iii) district and school programs to supplement, not supplant, existing local prevention
97 efforts in cooperation with local substance abuse authorities.
98 Section 2. Section 62A-1-118 is amended to read:
99 62A-1-118. Access to abuse and neglect information to screen employees and
100 volunteers.
101 (1) The department may conduct a background check, pursuant to Subsections
102 62A-2-120(1) through (4), of department employees and volunteers who have direct access, as
103 defined in Section 62A-2-101, to a child or a vulnerable adult.
104 (2) In addition to conducting a background check described in Subsection (1), and
105 subject to the requirements of this section, the department may search the Division of Child
106 and Family Services' Management Information System described in Section 62A-4a-1003.
107 (3) With respect to department employees and volunteers, the department may only
108 access information in the systems and databases described in Subsection 62A-2-120(3) and in
109 the Division of Child and Family Services' Management Information System for the purpose of
110 determining at the time of hire and each year thereafter whether a department employee or
111 volunteer has a criminal history, an adjudication of abuse or neglect, or[
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116 (4) A department employee or volunteer to whom Subsection (1) applies shall submit
117 to the department the employee or volunteer's name, other personal identifying information,
118 and consent for the background check on a form specified by the department.
119 (5) The department shall make rules in accordance with Title 63G, Chapter 3, Utah
120 Administrative Rulemaking Act, defining permissible and impermissible work-related
121 activities for a department employee or volunteer with a criminal history or with one or more
122 substantiated or supported findings of abuse, neglect, or exploitation.
123 Section 3. Section 62A-1-122 is amended to read:
124 62A-1-122. Child pornography.
125 (1) As used in this section:
126 (a) "Child pornography" means the same as that term is defined in Section 76-5b-103.
127 (b) "Secure" means to prevent and prohibit access, electronic upload, transmission, or
128 transfer of an image.
129 (2) The department or a division within the department may not retain child
130 pornography longer than is necessary to comply with the requirements of this section.
131 (3) When the department or a division within the department obtains child
132 pornography as a result of an employee unlawfully viewing child pornography, the department
133 or division shall consult with and follow the guidance of the Department of Human Resource
134 Management regarding personnel action and local law enforcement regarding retention of the
135 child pornography.
136 (4) When the department or a division within the department obtains child
137 pornography as a result of a report or an investigation, the department or division shall[
138
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140 child pornography is digital, and contact the law enforcement office that has jurisdiction over
141 the area where the division's case is located.
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167 Section 4. Section 62A-2-120 is amended to read:
168 62A-2-120. Background check -- Direct access to children or vulnerable adults.
169 (1) As used in this section:
170 (a) (i) "Applicant" means:
171 [
172 [
173 likely have direct access to a child or a vulnerable adult;
174 [
175 parent on more than one occasion;
176 [
177 [
178 child or vulnerable adult who is receiving the service, if the individual is 12 years of age or
179 older and[
180 vulnerable adult who is receiving services; or
181 [
182 (F) a guardian submitting an application on behalf of an individual, other than the child
183 or vulnerable adult who is receiving the service, if the individual is 12 years of age or older and
184 is a person described in Subsection (1)(a)(i)(A), (B), (C), or (D).
185 (ii) "Applicant" does not mean an individual, including an adult, who is in the custody
186 of the Division of Child and Family Services or the Division of Juvenile Justice Services.
187 (b) "Application" means a background screening application to the office.
188 (c) "Bureau" means the Bureau of Criminal Identification within the Department of
189 Public Safety, created in Section 53-10-201.
190 (d) "Incidental care" means occasional care, not in excess of five hours per week and
191 never overnight, for a foster child.
192 (e) "Personal identifying information" means:
193 (i) current name, former names, nicknames, and aliases;
194 (ii) date of birth;
195 (iii) physical address and email address;
196 (iv) telephone number;
197 (v) driver license or other government-issued identification;
198 (vi) social security number;
199 (vii) only for applicants who are 18 years of age or older, fingerprints, in a form
200 specified by the office; and
201 (viii) other information specified by the office by rule made in accordance with Title
202 63G, Chapter 3, Utah Administrative Rulemaking Act.
203 (2) (a) Except as provided in Subsection [
204 following to the office:
205 (i) personal identifying information;
206 (ii) a fee established by the office under Section 63J-1-504; and
207 (iii) a form, specified by the office, for consent for:
208 (A) an initial background check upon submission of the information described under
209 this Subsection (2)(a);
210 (B) a background check at the applicant's annual renewal;
211 (C) a background check when the office determines that reasonable cause exists; and
212 (D) retention of personal identifying information, including fingerprints, for
213 monitoring and notification as described in Subsections (3)(d) and (4).
214 (b) In addition to the requirements described in Subsection (2)(a), if an applicant spent
215 time outside of the United States and its territories during the five years immediately preceding
216 the day on which the information described in Subsection (2)(a) is submitted to the office, the
217 office may require the applicant to submit documentation establishing whether the applicant
218 was convicted of a crime during the time that the applicant spent outside of the United States or
219 its territories.
220 (3) The office:
221 (a) shall perform the following duties as part of a background check of an applicant:
222 (i) check state and regional criminal background databases for the applicant's criminal
223 history by:
224 (A) submitting personal identifying information to the [
225 (B) using the applicant's personal identifying information to search state and regional
226 criminal background databases as authorized under Section 53-10-108;
227 (ii) submit the applicant's personal identifying information and fingerprints to the
228 [
229 databases;
230 (iii) search the Department of Human Services, Division of Child and Family Services'
231 Licensing Information System described in Section 62A-4a-1006;
232 (iv) search the Department of Human Services, Division of Aging and Adult Services'
233 vulnerable adult abuse, neglect, or exploitation database described in Section 62A-3-311.1;
234 (v) search the juvenile court records for substantiated findings of severe child abuse or
235 neglect described in Section 78A-6-323; and
236 (vi) search the juvenile court arrest, adjudication, and disposition records, as provided
237 under Section 78A-6-209;
238 (b) shall conduct a background check of an applicant for an initial background check
239 upon submission of the information described under Subsection (2)(a);
240 (c) may conduct all or portions of a background check of an applicant, as provided by
241 rule, made by the office in accordance with Title 63G, Chapter 3, Utah Administrative
242 Rulemaking Act:
243 (i) for an annual renewal; or
244 (ii) when the office determines that reasonable cause exists;
245 (d) may submit an applicant's personal identifying information, including fingerprints,
246 to the [
247 background databases and for notifying the office of new criminal activity associated with the
248 applicant;
249 (e) shall track the status of an approved applicant under this section to ensure that an
250 approved applicant is not required to duplicate the submission of the applicant's fingerprints if
251 the applicant applies for:
252 (i) more than one license;
253 (ii) direct access to a child or a vulnerable adult in more than one human services
254 program; or
255 (iii) direct access to a child or a vulnerable adult under a contract with the department;
256 (f) shall track the status of each license and each individual with direct access to a child
257 or a vulnerable adult and notify the [
258 individual's direct access to a child or a vulnerable adult has ceased;
259 (g) shall adopt measures to strictly limit access to personal identifying information
260 solely to the office employees responsible for processing the applications for background
261 checks and to protect the security of the personal identifying information the office reviews
262 under this Subsection (3); [
263 (h) as necessary to comply with the federal requirement to check a state's child abuse
264 and neglect registry regarding any individual working in a program under this section that
265 serves children, shall:
266 (i) search the Department of Human Services, Division of Child and Family Services'
267 Licensing Information System described in Section 62A-4a-1006; and
268 (ii) require the child abuse and neglect registry be checked in each state where an
269 applicant resided at any time during the five years immediately preceding the day on which the
270 applicant submits the information described in Subsection (2)(a) to the office; and
271 [
272 Administrative Rulemaking Act, to implement the provisions of this Subsection (3) relating to
273 background checks.
274 (4) (a) With the personal identifying information the office submits to the [
275 bureau under Subsection (3), the [
276 criminal background databases for the applicant's criminal history.
277 (b) With the personal identifying information and fingerprints the office submits to the
278 [
279 criminal background databases for the applicant's criminal history.
280 (c) Upon direction from the office, and with the personal identifying information and
281 fingerprints the office submits to the [
282 bureau shall:
283 (i) maintain a separate file of the fingerprints for search by future submissions to the
284 local and regional criminal records databases, including latent prints; and
285 (ii) monitor state and regional criminal background databases and identify criminal
286 activity associated with the applicant.
287 (d) The [
288 of Investigation Next Generation Identification System, to be retained in the Federal Bureau of
289 Investigation Next Generation Identification System for the purpose of:
290 (i) being searched by future submissions to the national criminal records databases,
291 including the Federal Bureau of Investigation Next Generation Identification System and latent
292 prints; and
293 (ii) monitoring national criminal background databases and identifying criminal
294 activity associated with the applicant.
295 (e) The Bureau shall notify and release to the office all information of criminal activity
296 associated with the applicant.
297 (f) Upon notice from the office that a license has expired or an individual's direct
298 access to a child or a vulnerable adult has ceased, the [
299 (i) discard and destroy any retained fingerprints; and
300 (ii) notify the Federal Bureau of Investigation when the license has expired or an
301 individual's direct access to a child or a vulnerable adult has ceased, so that the Federal Bureau
302 of Investigation will discard and destroy the retained fingerprints from the Federal Bureau of
303 Investigation Next Generation Identification System.
304 (5) (a) After conducting the background check described in Subsections (3) and (4), the
305 office shall deny an application to an applicant who, within three years before the day on which
306 the applicant submits information to the office under Subsection (2) for a background check,
307 has been convicted of any of the following, regardless of whether the offense is a felony, a
308 misdemeanor, or an infraction:
309 (i) an offense identified as domestic violence, lewdness, voyeurism, battery, cruelty to
310 animals, or bestiality;
311 (ii) a violation of any pornography law, including sexual exploitation of a minor;
312 (iii) prostitution;
313 (iv) an offense included in:
314 (A) Title 76, Chapter 5, Offenses Against the Person;
315 (B) Section 76-5b-201, Sexual Exploitation of a Minor; or
316 (C) Title 76, Chapter 7, Offenses Against the Family;
317 (v) aggravated arson, as described in Section 76-6-103;
318 (vi) aggravated burglary, as described in Section 76-6-203;
319 (vii) aggravated robbery, as described in Section 76-6-302;
320 (viii) identity fraud crime, as described in Section 76-6-1102; or
321 (ix) a conviction for a felony or misdemeanor offense committed outside of the state
322 that, if committed in the state, would constitute a violation of an offense described in
323 Subsections (5)(a)(i) through (viii).
324 (b) If the office denies an application to an applicant based on a conviction described in
325 Subsection (5)(a), the applicant is not entitled to a comprehensive review described in
326 Subsection (6).
327 (6) (a) The office shall conduct a comprehensive review of an applicant's background
328 check if the applicant:
329 (i) has a conviction for any felony offense, not described in Subsection (5)(a),
330 regardless of the date of the conviction;
331 (ii) has a conviction for a misdemeanor offense, not described in Subsection (5)(a), and
332 designated by the office, by rule, in accordance with Title 63G, Chapter 3, Utah Administrative
333 Rulemaking Act, if the conviction is within five years before the day on which the applicant
334 submits information to the office under Subsection (2) for a background check;
335 (iii) has a conviction for any offense described in Subsection (5)(a) that occurred more
336 than three years before the day on which the applicant submitted information under Subsection
337 (2)(a);
338 (iv) is currently subject to a plea in abeyance or diversion agreement for any offense
339 described in Subsection (5)(a);
340 (v) has a listing in the Department of Human Services, Division of Child and Family
341 Services' Licensing Information System described in Section 62A-4a-1006;
342 (vi) has a listing in the Department of Human Services, Division of Aging and Adult
343 Services' vulnerable adult abuse, neglect, or exploitation database described in Section
344 62A-3-311.1;
345 (vii) has a record in the juvenile court of a substantiated finding of severe child abuse
346 or neglect described in Section 78A-6-323;
347 (viii) has a record of an adjudication in juvenile court for an act that, if committed by
348 an adult, would be a felony or misdemeanor, if the applicant is:
349 (A) under 28 years of age; or
350 (B) 28 years of age or older and has been convicted of, has pleaded no contest to, or is
351 currently subject to a plea in abeyance or diversion agreement for a felony or a misdemeanor
352 offense described in Subsection (5)(a); or
353 (ix) has a pending charge for an offense described in Subsection (5)(a).
354 (b) The comprehensive review described in Subsection (6)(a) shall include an
355 examination of:
356 (i) the date of the offense or incident;
357 (ii) the nature and seriousness of the offense or incident;
358 (iii) the circumstances under which the offense or incident occurred;
359 (iv) the age of the perpetrator when the offense or incident occurred;
360 (v) whether the offense or incident was an isolated or repeated incident;
361 (vi) whether the offense or incident directly relates to abuse of a child or vulnerable
362 adult, including:
363 (A) actual or threatened, nonaccidental physical or mental harm;
364 (B) sexual abuse;
365 (C) sexual exploitation; or
366 (D) negligent treatment;
367 (vii) any evidence provided by the applicant of rehabilitation, counseling, psychiatric
368 treatment received, or additional academic or vocational schooling completed; and
369 (viii) any other pertinent information.
370 (c) At the conclusion of the comprehensive review described in Subsection (6)(a), the
371 office shall deny an application to an applicant if the office finds that approval would likely
372 create a risk of harm to a child or a vulnerable adult.
373 (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
374 office may make rules, consistent with this chapter, to establish procedures for the
375 comprehensive review described in this Subsection (6).
376 (7) Subject to Subsection (10), the office shall approve an application to an applicant
377 who is not denied under Subsection (5), (6), or (13).
378 (8) (a) The office may conditionally approve an application of an applicant, for a
379 maximum of 60 days after the day on which the office sends written notice to the applicant
380 under Subsection (12), without requiring that the applicant be directly supervised, if the office:
381 (i) is awaiting the results of the criminal history search of national criminal background
382 databases; and
383 (ii) would otherwise approve an application of the applicant under Subsection (7).
384 (b) Upon receiving the results of the criminal history search of national criminal
385 background databases, the office shall approve or deny the application of the applicant in
386 accordance with Subsections (5) through (7).
387 (9) A licensee or department contractor may not permit an individual to have direct
388 access to a child or a vulnerable adult unless, subject to Subsection (10):
389 (a) the individual is associated with the licensee or department contractor and:
390 (i) the individual's application is approved by the office under this section;
391 (ii) the individual's application is conditionally approved by the office under
392 Subsection (8); or
393 (iii) (A) the individual has submitted the background check information described in
394 Subsection (2) to the office;
395 (B) the office has not determined whether to approve the applicant's application; and
396 (C) the individual is directly supervised by an individual who has a current background
397 screening approval issued by the office under this section and is associated with the licensee or
398 department contractor;
399 (b) (i) the individual is associated with the licensee or department contractor;
400 (ii) the individual has a current background screening approval issued by the office
401 under this section;
402 (iii) one of the following circumstances, that the office has not yet reviewed under
403 Subsection (6), applies to the individual:
404 (A) the individual was charged with an offense described in Subsection (5)(a);
405 (B) the individual is listed in the Licensing Information System, described in Section
406 62A-4a-1006;
407 (C) the individual is listed in the vulnerable adult abuse, neglect, or exploitation
408 database, described in Section 62A-3-311.1;
409 (D) the individual has a record in the juvenile court of a substantiated finding of severe
410 child abuse or neglect, described in Section 78A-6-323; or
411 (E) the individual has a record of an adjudication in juvenile court for an act that, if
412 committed by an adult, would be a felony or a misdemeanor; and
413 (iv) the individual is directly supervised by an individual who:
414 (A) has a current background screening approval issued by the office under this
415 section; and
416 (B) is associated with the licensee or department contractor;
417 (c) the individual:
418 (i) is not associated with the licensee or department contractor; and
419 (ii) is directly supervised by an individual who:
420 (A) has a current background screening approval issued by the office under this
421 section; and
422 (B) is associated with the licensee or department contractor;
423 (d) the individual is the parent or guardian of the child, or the guardian of the
424 vulnerable adult;
425 (e) the individual is approved by the parent or guardian of the child, or the guardian of
426 the vulnerable adult, to have direct access to the child or the vulnerable adult;
427 (f) the individual is only permitted to have direct access to a vulnerable adult who
428 voluntarily invites the individual to visit; or
429 (g) the individual only provides incidental care for a foster child on behalf of a foster
430 parent who has used reasonable and prudent judgment to select the individual to provide the
431 incidental care for the foster child.
432 (10) An individual may not have direct access to a child or a vulnerable adult if the
433 individual is prohibited by court order from having that access.
434 (11) Notwithstanding any other provision of this section, an individual for whom the
435 office denies an application may not have supervised or unsupervised direct access to a child or
436 vulnerable adult unless the office approves a subsequent application by the individual.
437 (12) (a) Within 30 days after the day on which the office receives the background
438 check information for an applicant, the office shall give written notice to:
439 (i) the applicant, and the licensee or department contractor, of the office's decision
440 regarding the background check and findings; and
441 (ii) the applicant of any convictions and potentially disqualifying charges and
442 adjudications found in the search.
443 (b) With the notice described in Subsection (12)(a), the office shall also give the
444 applicant the details of any comprehensive review conducted under Subsection (6).
445 (c) If the notice under Subsection (12)(a) states that the applicant's application is
446 denied, the notice shall further advise the applicant that the applicant may, under Subsection
447 62A-2-111(2), request a hearing in the department's Office of Administrative Hearings, to
448 challenge the office's decision.
449 (d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
450 office shall make rules, consistent with this chapter:
451 (i) defining procedures for the challenge of its background check decision described in
452 Subsection (12)(c); and
453 (ii) expediting the process for renewal of a license under the requirements of this
454 section and other applicable sections.
455 (13) An individual or a department contractor who provides services in an adults only
456 substance use disorder program, as defined by rule, is exempt from this section. This
457 exemption does not extend to a program director or a member, as defined by Section
458 62A-2-108, of the program.
459 (14) (a) Except as provided in Subsection (14)(b), in addition to the other requirements
460 of this section, if the background check of an applicant is being conducted for the purpose of
461 licensing a prospective foster home or approving a prospective adoptive placement of a child in
462 state custody, the office shall:
463 (i) check the child abuse and neglect registry in each state where each applicant resided
464 in the five years immediately preceding the day on which the applicant applied to be a foster
465 parent or adoptive parent, to determine whether the prospective foster parent or prospective
466 adoptive parent is listed in the registry as having a substantiated or supported finding of child
467 abuse or neglect; and
468 (ii) check the child abuse and neglect registry in each state where each adult living in
469 the home of the applicant described in Subsection (14)(a)(i) resided in the five years
470 immediately preceding the day on which the applicant applied to be a foster parent or adoptive
471 parent, to determine whether the adult is listed in the registry as having a substantiated or
472 supported finding of child abuse or neglect.
473 (b) The requirements described in Subsection (14)(a) do not apply to the extent that:
474 (i) federal law or rule permits otherwise; or
475 (ii) the requirements would prohibit the Division of Child and Family Services or a
476 court from placing a child with:
477 (A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or
478 (B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307,
479 or 78A-6-307.5, pending completion of the background check described in Subsection (5).
480 (c) Notwithstanding Subsections (5) through (9), the office shall deny a license or a
481 license renewal to a prospective foster parent or a prospective adoptive parent if the applicant
482 has been convicted of:
483 (i) a felony involving conduct that constitutes any of the following:
484 (A) child abuse, as described in Section 76-5-109;
485 (B) commission of domestic violence in the presence of a child, as described in Section
486 76-5-109.1;
487 (C) abuse or neglect of a child with a disability, as described in Section 76-5-110;
488 (D) endangerment of a child or vulnerable adult, as described in Section 76-5-112.5;
489 (E) aggravated murder, as described in Section 76-5-202;
490 (F) murder, as described in Section 76-5-203;
491 (G) manslaughter, as described in Section 76-5-205;
492 (H) child abuse homicide, as described in Section 76-5-208;
493 (I) homicide by assault, as described in Section 76-5-209;
494 (J) kidnapping, as described in Section 76-5-301;
495 (K) child kidnapping, as described in Section 76-5-301.1;
496 (L) aggravated kidnapping, as described in Section 76-5-302;
497 (M) human trafficking of a child, as described in Section 76-5-308.5;
498 (N) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
499 (O) sexual exploitation of a minor, as described in Section 76-5b-201;
500 (P) aggravated arson, as described in Section 76-6-103;
501 (Q) aggravated burglary, as described in Section 76-6-203;
502 (R) aggravated robbery, as described in Section 76-6-302; or
503 (S) domestic violence, as described in Section 77-36-1; or
504 (ii) an offense committed outside the state that, if committed in the state, would
505 constitute a violation of an offense described in Subsection (14)(c)(i).
506 (d) Notwithstanding Subsections (5) through (9), the office shall deny a license or
507 license renewal to a prospective foster parent or a prospective adoptive parent if, within the
508 five years immediately preceding the day on which the individual's application or license would
509 otherwise be approved, the applicant was convicted of a felony involving conduct that
510 constitutes a violation of any of the following:
511 (i) aggravated assault, as described in Section 76-5-103;
512 (ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
513 (iii) mayhem, as described in Section 76-5-105;
514 (iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
515 (v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
516 (vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances
517 Act;
518 (vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance
519 Precursor Act; or
520 (viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
521 (e) In addition to the circumstances described in Subsection (6)(a), the office shall
522 conduct the comprehensive review of an applicant's background check pursuant to this section
523 if the registry check described in Subsection (14)(a) indicates that the individual is listed in a
524 child abuse and neglect registry of another state as having a substantiated or supported finding
525 of a severe type of child abuse or neglect as defined in Section 62A-4a-1002.
526 Section 5. Section 62A-4a-101 is amended to read:
527 62A-4a-101. Definitions.
528 As used in this chapter:
529 (1) "Abuse" means the same as that term is defined in Section 78A-6-105.
530 (2) "Adoption services" means:
531 (a) placing children for adoption;
532 (b) subsidizing adoptions under Section 62A-4a-105;
533 (c) supervising adoption placements until the adoption is finalized by the court;
534 (d) conducting adoption studies;
535 (e) preparing adoption reports upon request of the court; and
536 (f) providing postadoptive placement services, upon request of a family, for the
537 purpose of stabilizing a possible disruptive placement.
538 (3) "Child" means, except as provided in Part 7, Interstate Compact on Placement of
539 Children, a person under 18 years of age.
540 (4) "Child protection team" means a team consisting of:
541 (a) the caseworker assigned to the case;
542 (b) the caseworker who made the decision to remove the child;
543 (c) a representative of the school or school district where the child attends school;
544 (d) the peace officer who removed the child from the home;
545 (e) a representative of the appropriate Children's Justice Center, if one is established
546 within the county where the child resides;
547 (f) if appropriate, and known to the division, a therapist or counselor who is familiar
548 with the child's circumstances;
549 (g) members of a child protection unit; and
550 (h) any other individuals determined appropriate and necessary by the team coordinator
551 and chair.
552 (5) "Child protection unit" means any unit created by a chief of police or a sheriff of a
553 city, town, metro township, or county that is composed of at least the following individuals
554 who are trained in the prevention, identification, and treatment of abuse or neglect:
555 (a) a law enforcement officer, as defined in Section 53-13-103; and
556 (b) a child advocate selected by the chief of police or a sheriff.
557 (6) "Chronic abuse" means repeated or patterned abuse.
558 (7) "Chronic neglect" means repeated or patterned neglect.
559 (8) "Consult" means an interaction between two persons in which the initiating person:
560 (a) provides information to another person;
561 (b) provides the other person an opportunity to respond; and
562 (c) takes the other person's response, if any, into consideration.
563 (9) "Consumer" means a person who receives services offered by the division in
564 accordance with this chapter.
565 (10) "Custody," with regard to the division, means the custody of a minor in the
566 division as of the date of disposition.
567 (11) "Day-care services" means care of a child for a portion of the day which is less
568 than 24 hours:
569 (a) in the child's own home by a responsible person; or
570 (b) outside of the child's home in a:
571 (i) day-care center;
572 (ii) family group home; or
573 (iii) family child care home.
574 (12) "Dependent child" or "dependency" means a child, or the condition of a child, who
575 is homeless or without proper care through no fault of the child's parent, guardian, or custodian.
576 (13) "Director" means the director of the Division of Child and Family Services.
577 (14) "Division" means the Division of Child and Family Services.
578 (15) "Domestic violence services" means:
579 (a) temporary shelter, treatment, and related services to:
580 (i) a person who is a victim of abuse, as defined in Section 78B-7-102; and
581 (ii) the dependent children of a person [
582 victim of abuse, as defined in Section 78B-7-102; and
583 (b) treatment services for a person who is alleged to have committed, has been
584 convicted of, or has pled guilty to, an act of domestic violence as defined in Section 77-36-1.
585 (16) "Harm" means the same as that term is defined in Section 78A-6-105.
586 (17) "Homemaking service" means the care of individuals in their domiciles, and help
587 given to individual caretaker relatives to achieve improved household and family management
588 through the services of a trained homemaker.
589 (18) "Incest" means the same as that term is defined in Section 78A-6-105.
590 (19) "Indian child" means the same as that term is defined in 25 U.S.C. Sec. 1903.
591 (20) "Indian tribe" means the same as that term is defined in 25 U.S.C. Sec. 1903.
592 (21) "Minor" means, except as provided in Part 7, Interstate Compact on Placement of
593 Children:
594 (a) a child; or
595 (b) a person:
596 (i) who is at least 18 years of age and younger than 21 years of age; and
597 (ii) for whom the division has been specifically ordered by the juvenile court to provide
598 services.
599 (22) "Molestation" means the same as that term is defined in Section 78A-6-105.
600 (23) "Mutual case" means a case that has been:
601 (a) opened by the division under the division's discretion and procedures;
602 (b) opened by the law enforcement agency with jurisdiction over the case; and
603 (c) accepted for investigation by the child protection unit established by the chief of
604 police or sheriff, as applicable.
605 (24) "Natural parent" means a minor's biological or adoptive parent, and includes a
606 minor's noncustodial parent.
607 (25) "Neglect" means the same as that term is defined in Section 78A-6-105.
608 (26) "Protective custody," with regard to the division, means the shelter of a child by
609 the division from the time the child is removed from the child's home until the earlier of:
610 (a) the shelter hearing; or
611 (b) the child's return home.
612 (27) "Protective services" means expedited services that are provided:
613 (a) in response to evidence of neglect, abuse, or dependency of a child;
614 (b) to a cohabitant who is neglecting or abusing a child, in order to:
615 (i) help the cohabitant develop recognition of the cohabitant's duty of care and of the
616 causes of neglect or abuse; and
617 (ii) strengthen the cohabitant's ability to provide safe and acceptable care; and
618 (c) in cases where the child's welfare is endangered:
619 (i) to bring the situation to the attention of the appropriate juvenile court and law
620 enforcement agency;
621 (ii) to cause a protective order to be issued for the protection of the child, when
622 appropriate; and
623 (iii) to protect the child from the circumstances that endanger the child's welfare
624 including, when appropriate:
625 (A) removal from the child's home;
626 (B) placement in substitute care; and
627 (C) petitioning the court for termination of parental rights.
628 (28) "Severe abuse" means the same as that term is defined in Section 78A-6-105.
629 (29) "Severe neglect" means the same as that term is defined in Section 78A-6-105.
630 (30) "Sexual abuse" means the same as that term is defined in Section 78A-6-105.
631 (31) "Sexual exploitation" means the same as that term is defined in Section
632 78A-6-105.
633 (32) "Shelter care" means the temporary care of a minor in a nonsecure facility.
634 (33) "Sibling" means a child who shares or has shared at least one parent in common
635 either by blood or adoption.
636 (34) "Sibling visitation" means services provided by the division to facilitate the
637 interaction between a child in division custody with a sibling of that child.
638 (35) "State" means:
639 (a) a state of the United States;
640 (b) the District of Columbia;
641 (c) the Commonwealth of Puerto Rico;
642 (d) the Virgin Islands;
643 (e) Guam;
644 (f) the Commonwealth of the Northern Mariana Islands; or
645 (g) a territory or possession administered by the United States.
646 (36) "State plan" means the written description of the programs for children, youth, and
647 family services administered by the division in accordance with federal law.
648 (37) "Status offense" means a violation of the law that would not be a violation but for
649 the age of the offender.
650 (38) "Substance abuse" means the same as that term is defined in Section 78A-6-105.
651 (39) "Substantiated" or "substantiation" means a judicial finding based on a
652 preponderance of the evidence that abuse or neglect occurred. Each allegation made or
653 identified in a given case shall be considered separately in determining whether there should be
654 a finding of substantiated.
655 (40) "Substitute care" means:
656 (a) the placement of a minor in a family home, group care facility, or other placement
657 outside the minor's own home, either at the request of a parent or other responsible relative, or
658 upon court order, when it is determined that continuation of care in the minor's own home
659 would be contrary to the minor's welfare;
660 (b) services provided for a minor awaiting placement; and
661 (c) the licensing and supervision of a substitute care facility.
662 (41) "Supported" means a finding by the division based on the evidence available at the
663 completion of an investigation that there is a reasonable basis to conclude that abuse, neglect,
664 or dependency occurred. Each allegation made or identified during the course of the
665 investigation shall be considered separately in determining whether there should be a finding of
666 supported.
667 (42) "Temporary custody," with regard to the division, means the custody of a child in
668 the division from the date of the shelter hearing until disposition.
669 (43) "Threatened harm" means the same as that term is defined in Section 78A-6-105.
670 [
671 with escort service, if necessary, to and from community facilities and resources as part of a
672 service plan.
673 [
674 evidence to conclude that abuse or neglect occurred.
675 [
676 investigation that there is insufficient evidence to conclude that abuse, neglect, or dependency
677 occurred. However, a finding of unsupported means also that the division [
678 conclude that the allegation was without merit.
679 [
680 the division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur,
681 or that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.
682 Section 6. Section 62A-4a-102 is amended to read:
683 62A-4a-102. Rulemaking responsibilities of division.
684 (1) The Division of Child and Family Services, created in Section 62A-4a-103, is
685 responsible for establishing [
686 3, Utah Administrative Rulemaking Act, in accordance with the requirements of this chapter
687 and Title 78A, Chapter 6, Juvenile Court Act, regarding abuse, neglect, and dependency
688 proceedings, and domestic violence services. The division is responsible to see that the
689 legislative purposes for the division are carried out.
690 (2) The division shall:
691 (a) approve fee schedules for programs within the division;
692 (b) in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
693 establish[
694 private contract providers, allied state and local agencies, and others are provided with an
695 opportunity to comment and provide input regarding any new [
696 of an existing [
697 (c) provide a mechanism for:
698 (i) systematic and regular review of existing [
699 review of all division [
700 and
701 (ii) consideration of [
702 described in Subsection (2)(b).
703 (3) (a) The division shall establish rules for the determination of eligibility for services
704 offered by the division in accordance with this chapter.
705 (b) The division may, by rule, establish eligibility standards for consumers.
706 (4) The division shall adopt and maintain rules regarding placement for adoption or
707 foster care that are consistent with, and no more restrictive than, applicable statutory
708 provisions.
709 Section 7. Section 62A-4a-105.5 is amended to read:
710 62A-4a-105.5. Employees -- Failure to comply with division policy --
711 Termination.
712 (1) The director shall ensure that all employees are fully trained to comply with state
713 [
714 their assigned duties and functions.
715 (2) If, after training and supervision, the employee consistently fails to comply with
716 those laws, rules, [
717 shall be terminated.
718 Section 8. Section 62A-4a-110 is amended to read:
719 62A-4a-110. Receipt of gifts -- Volunteer services.
720 (1) The division may receive gifts, grants, devises, and donations. These gifts, grants,
721 devises, donations, or their proceeds shall be credited to the program which the donor
722 designates and may be used for the purposes requested by the donor, if the request conforms to
723 state and federal [
724 gift, grant, devise, or donation for the best interest of the division.
725 (2) The division may:
726 (a) accept and use volunteer labor or services of applicants, recipients, and other
727 members of the community. The division may reimburse volunteers for necessary expenses,
728 including transportation, and provide recognition awards and recognition meals for services
729 rendered. The division may cooperate with volunteer organizations in collecting funds to be
730 used in the volunteer program. Those donated funds shall be considered as private, nonlapsing
731 funds until used by the division, and may be invested under guidelines established by the state
732 treasurer;
733 (b) encourage merchants and providers of services to donate goods and services or to
734 provide them at a nominal price or below cost;
735 (c) distribute goods to applicants or consumers free or for a nominal charge and tax
736 free; and
737 (d) appeal to the public for funds to meet applicants' and consumers' needs which are
738 not otherwise provided for by law. Those appeals may include Sub-for-Santa Programs,
739 recreational programs for minors, and requests for household appliances and home repairs,
740 under rules established by the division.
741 Section 9. Section 62A-4a-112 is amended to read:
742 62A-4a-112. Request to examine family services payment.
743 (1) An individual who is a taxpayer and resident of this state and who desires to
744 examine a payment for services offered by the division in accordance with this chapter, shall
745 sign a statement using a form prescribed by the division. That statement shall include the
746 assertion that the individual is a taxpayer and a resident, and shall include a commitment that
747 any information obtained will not be used for commercial or political purposes. No partial or
748 complete list of names, addresses, or amounts of payment may be made by any individual
749 under this subsection, and none of that information may be removed from the offices of the
750 division.
751 (2) The division shall, after due consideration of the public interest, define the nature
752 of confidential information to be safeguarded by the division and shall establish [
753 rules to govern the custody and disclosure of confidential information, as well as to provide
754 access to information regarding payments for services offered by the division.
755 (3) This section does not prohibit the division or its agents, or individuals,
756 commissions, or agencies duly authorized for the purpose, from making special studies or from
757 issuing or publishing statistical material and reports of a general character. This section does
758 not prohibit the division or its representatives or employees from conveying or providing to
759 local, state, or federal governmental agencies written information that would affect an
760 individual's eligibility or ineligibility for financial service, or other beneficial programs offered
761 by that governmental agency. Access to the division's program plans, policies, and records, as
762 well as consumer records and data, is governed by Title 63G, Chapter 2, Government Records
763 Access and Management Act.
764 (4) Violation of this section is a class B misdemeanor.
765 Section 10. Section 62A-4a-117 is amended to read:
766 62A-4a-117. Performance monitoring system -- Annual report.
767 (1) As used in this section:
768 (a) " Council" means the Child Welfare Improvement Council established under
769 Section 62A-4a-311.
770 (b) "Performance indicators" means actual performance in a program, activity, or other
771 function for which there is a performance standard.
772 (c) (i) "Performance standards" means the targeted or expected level of performance of
773 each area in the child welfare system, including:
774 (A) child protection services;
775 (B) adoption;
776 (C) foster care; and
777 (D) other substitute care.
778 (ii) "Performance standards" includes the performance goals and measures in effect in
779 2008 that the division was subject to under federal court oversight, as amended pursuant to
780 Subsection (2), including:
781 (A) the qualitative case review; and
782 (B) the case process review.
783 (2) (a) The division may not amend the performance standards unless the amendment
784 is:
785 (i) necessary and proper for the effective administration of the division; or
786 (ii) necessary to comply with, or implement changes in, the law.
787 (b) Before amending the performance standards, the division shall provide written
788 notice of the proposed amendment to the council.
789 (c) The notice described in Subsection (2)(b) shall include:
790 (i) the proposed amendment;
791 (ii) a summary of the reason for the proposed amendment; and
792 (iii) the proposed effective date of the amendment.
793 (d) Within 45 days after the day on which the division provides the notice described in
794 Subsection (2)(b) to the council, the council shall provide to the division written comments on
795 the proposed amendment.
796 (e) The division may not implement a proposed amendment to the performance
797 standards until the earlier of:
798 (i) seven days after the day on which the division receives the written comments
799 regarding the proposed change described in Subsection (2)(d); or
800 (ii) 52 days after the day on which the division provides the notice described in
801 Subsection (2)(b) to the council.
802 (f) The division shall:
803 (i) give full, fair, and good faith consideration to all comments and objections received
804 from the council;
805 (ii) notify the council in writing of:
806 (A) the division's decision regarding the proposed amendment; and
807 (B) the reasons that support the decision;
808 (iii) include complete information on all amendments to the performance standards in
809 the report described in Subsection (4); and
810 (iv) post the changes on the division's website.
811 (3) The division shall maintain a performance monitoring system to regularly:
812 (a) collect information on performance indicators; and
813 (b) compare performance indicators to performance standards.
814 (4) Before January 1 each year, the director shall submit a written report to the Child
815 Welfare Legislative Oversight Panel and the Social Services Appropriations Subcommittee that
816 includes:
817 (a) a comparison between the performance indicators for the prior fiscal year and the
818 performance standards;
819 (b) for each performance indicator that does not meet the performance standard:
820 (i) the reason the standard was not met;
821 (ii) the measures that need to be taken to meet the standard; and
822 (iii) the division's plan to comply with the standard for the current fiscal year;
823 (c) data on the extent to which new and experienced division employees have received
824 training pursuant to statute, administrative rule, and division policy; and
825 (d) an analysis of the use and efficacy of in-home services, both before and after
826 removal of a child from the child's home.
827 Section 11. Section 62A-4a-118 is amended to read:
828 62A-4a-118. Annual review of child welfare referrals and cases by executive
829 director -- Accountability to the Legislature -- Review by legislative auditor general.
830 (1) The division shall use principles of quality management systems, including
831 statistical measures of processes of service, and the routine reporting of performance data to
832 employees.
833 (2) (a) In addition to development of quantifiable outcome measures and performance
834 measures in accordance with Section 62A-4a-117, the executive director, or [
835 director's designee, shall annually review a randomly selected sample of child welfare referrals
836 to and cases handled by the division. The purpose of that review shall be to assess whether the
837 division is adequately protecting children and providing appropriate services to families, in
838 accordance with the provisions of Title 62A, Chapter 4a, Child and Family Services, and Title
839 78A, Chapter 6, Part 3, Abuse, Neglect, and Dependency Proceedings, and Part 5, Termination
840 of Parental Rights Act. The review shall focus directly on the outcome of cases to children and
841 families, and not simply on procedural compliance with specified criteria.
842 (b) The executive director shall report[
843 executive director's review to the legislative auditor general and the Child Welfare Legislative
844 Oversight Panel.
845 (c) Information obtained as a result of the review shall be provided to caseworkers,
846 supervisors, and division personnel involved in the respective cases, for purposes of education,
847 training, and performance evaluation.
848 (3) The executive director's review and report to the [
849 general and the Child Welfare Legislative Oversight Panel shall include:
850 (a) the criteria used by the executive director, or [
851 in making the evaluation;
852 (b) findings regarding whether state statutes, division [
853 policy, and division policy were followed in each sample case;
854 (c) findings regarding whether, in each sample case, referrals, removals, or cases were
855 appropriately handled by the division and its employees, and whether children were adequately
856 and appropriately protected and appropriate services provided to families, in accordance with
857 the provisions of Title 62A, Chapter 4a, Child and Family Services, Title 78A, Chapter 6, Part
858 3, Abuse, Neglect, and Dependency Proceedings, and Part 5, Termination of Parental Rights
859 Act, and division [
860 (d) an assessment of the division's intake procedures and decisions, including an
861 assessment of the appropriateness of decisions not to accept referrals; and
862 (e) an assessment of the appropriateness of the division's assignment of priority.
863 (4) (a) In addition to the executive director's review under Subsection (2), the
864 legislative auditor general shall audit, subject to the prioritization of the Legislative Audit
865 Subcommittee, a sample of child welfare referrals to and cases handled by the division and
866 report the findings to the Child Welfare Legislative Oversight Panel.
867 (b) An audit under Subsection (4)(a) may be initiated by:
868 (i) the Audit Subcommittee of the Legislative Management Committee;
869 (ii) the Child Welfare Legislative Oversight Panel; or
870 (iii) the legislative auditor general, based on the results of the executive director's
871 review under Subsection (2).
872 (c) With regard to the sample of referrals, removals, and cases, the Legislative Auditor
873 General's report may include:
874 (i) findings regarding whether state statutes, division [
875 policy, and division policy were followed by the division and its employees;
876 (ii) a determination regarding whether referrals, removals, and cases were appropriately
877 handled by the division and its employees, and whether children were adequately and
878 appropriately protected and appropriate services provided for families, in accordance with the
879 provisions of Title 62A, Chapter 4a, Child and Family Services, Title 78A, Chapter 6, Part 3,
880 Abuse, Neglect, and Dependency Proceedings, and Part 5, Termination of Parental Rights Act,
881 and division [
882 (iii) an assessment of the division's intake procedures and decisions, including an
883 assessment of the appropriateness of decisions not to accept referrals;
884 (iv) an assessment of the appropriateness of the division's assignment of priority;
885 (v) a determination regarding whether the department's review process is effecting
886 beneficial change within the division and accomplishing the mission established by the
887 Legislature and the department for that review process; and
888 (vi) findings regarding any other issues identified by the auditor or others under this
889 Subsection (4).
890 Section 12. Section 62A-4a-201 is amended to read:
891 62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
892 state.
893 (1) (a) Under both the United States Constitution and the constitution of this state, a
894 parent possesses a fundamental liberty interest in the care, custody, and management of the
895 parent's children. A fundamentally fair process must be provided to parents if the state moves
896 to challenge or interfere with parental rights. A governmental entity must support any actions
897 or allegations made in opposition to the rights and desires of a parent regarding the parent's
898 children by sufficient evidence to satisfy a parent's constitutional entitlement to heightened
899 protection against government interference with the parent's fundamental rights and liberty
900 interests and, concomitantly, the right of the child to be reared by the child's natural parent.
901 (b) The fundamental liberty interest of a parent concerning the care, custody, and
902 management of the parent's children is recognized, protected, and does not cease to exist
903 simply because a parent may fail to be a model parent or because the parent's child is placed in
904 the temporary custody of the state. At all times, a parent retains a vital interest in preventing
905 the irretrievable destruction of family life. Prior to an adjudication of unfitness, government
906 action in relation to parents and their children may not exceed the least restrictive means or
907 alternatives available to accomplish a compelling state interest. Until the state proves parental
908 unfitness, and the child suffers, or is substantially likely to suffer, serious detriment as a result,
909 the child and the child's parents share a vital interest in preventing erroneous termination of
910 their natural relationship and the state cannot presume that a child and the child's parents are
911 adversaries.
912 (c) It is in the best interest and welfare of a child to be raised under the care and
913 supervision of the child's natural parents. A child's need for a normal family life in a
914 permanent home, and for positive, nurturing family relationships is usually best met by the
915 child's natural parents. Additionally, the integrity of the family unit and the right of parents to
916 conceive and raise their children are constitutionally protected. The right of a fit, competent
917 parent to raise the parent's child without undue government interference is a fundamental
918 liberty interest that has long been protected by the laws and Constitution and is a fundamental
919 public policy of this state.
920 (d) The state recognizes that:
921 (i) a parent has the right, obligation, responsibility, and authority to raise, manage,
922 train, educate, provide and care for, and reasonably discipline the parent's children; and
923 (ii) the state's role is secondary and supportive to the primary role of a parent.
924 (e) It is the public policy of this state that parents retain the fundamental right and duty
925 to exercise primary control over the care, supervision, upbringing, and education of their
926 children.
927 (f) Subsections (2) through (7) shall be interpreted and applied consistent with this
928 Subsection (1).
929 (2) It is also the public policy of this state that children have the right to protection
930 from abuse and neglect, and that the state retains a compelling interest in investigating,
931 prosecuting, and punishing abuse and neglect, as defined in this chapter, and in Title 78A,
932 Chapter 6, Juvenile Court Act. Therefore, the state, as parens patriae, has an interest in and
933 responsibility to protect children whose parents abuse them or do not adequately provide for
934 their welfare. There may be circumstances where a parent's conduct or condition is a
935 substantial departure from the norm and the parent is unable or unwilling to render safe and
936 proper parental care and protection. Under those circumstances, the state may take action for
937 the welfare and protection of the parent's children.
938 (3) When the division intervenes on behalf of an abused, neglected, or dependent child,
939 it shall take into account the child's need for protection from immediate harm and the extent to
940 which the child's extended family may provide needed protection. Throughout its involvement,
941 the division shall utilize the least intrusive and least restrictive means available to protect a
942 child, in an effort to ensure that children are brought up in stable, permanent families, rather
943 than in temporary foster placements under the supervision of the state.
944 (4) When circumstances within the family pose a threat to the child's immediate safety
945 or welfare, the division may seek custody of the child for a planned, temporary period and
946 place the child in a safe environment, subject to the requirements of this section and in
947 accordance with the requirements of Title 78A, Chapter 6, Part 3, Abuse, Neglect, and
948 Dependency Proceedings, and:
949 (a) when safe and appropriate, return the child to the child's parent; or
950 (b) as a last resort, pursue another permanency plan.
951 (5) In determining and making "reasonable efforts" with regard to a child, pursuant to
952 the provisions of Section 62A-4a-203, both the division's and the court's paramount concern
953 shall be the child's health, safety, and welfare. The desires of a parent for the parent's child,
954 and the constitutionally protected rights of a parent, as described in this section, shall be given
955 full and serious consideration by the division and the court.
956 (6) In cases where actual sexual abuse, sexual exploitation, abandonment, severe
957 abuse, or severe neglect are established, the state has no duty to make "reasonable efforts" or
958 to, in any other way, attempt to maintain a child in the child's home, provide reunification
959 services, or to attempt to rehabilitate the offending parent or parents. This Subsection (6) does
960 not exempt the division from providing court-ordered services.
961 (7) (a) In accordance with Subsection (1), the division shall strive to achieve
962 appropriate permanency for children who are abused, neglected, or dependent. The division
963 shall provide in-home services, where appropriate and safe, in an effort to help a parent to
964 correct the behavior that resulted in abuse, neglect, or dependency of the parent's child. The
965 division may pursue a foster placement only if in-home services fail or are otherwise
966 insufficient or inappropriate, kinship placement is not safe or appropriate, or in-home services
967 and kinship placement fail and cannot be corrected. The division shall also seek qualified
968 extended family support or a kinship placement to maintain a sense of security and stability for
969 the child.
970 (b) If the use or continuation of "reasonable efforts," as described in Subsections (5)
971 and (6), is determined to be inconsistent with the permanency plan for a child, then measures
972 shall be taken, in a timely manner, to place the child in accordance with the permanency plan,
973 and to complete whatever steps are necessary to finalize the permanent placement of the child.
974 (c) Subject to the parental rights recognized and protected under this section, if,
975 because of a parent's conduct or condition, the parent is determined to be unfit or incompetent
976 based on the grounds for termination of parental rights described in Title 78A, Chapter 6, Part
977 5, Termination of Parental Rights Act, the continuing welfare and best interest of the child is of
978 paramount importance, and shall be protected in determining whether that parent's rights
979 should be terminated.
980 (8) The state's right to direct or intervene in the provision of medical or mental health
981 care for a child is subject to Subsections 78A-6-105[
982 Section 78A-6-301.5.
983 Section 13. Section 62A-4a-202.6 is amended to read:
984 62A-4a-202.6. Conflict child protective services investigations -- Authority of
985 investigators.
986 (1) (a) The division shall contract with an independent child protective service
987 investigator from the private sector to investigate reports of abuse or neglect of a child that
988 occur while the child is in the custody of the division.
989 (b) The executive director shall designate an entity within the department, other than
990 the division, to monitor the contract for the investigators described in Subsection (1)(a).
991 (c) Subject to Subsection (4), when a report is made that a child is abused or neglected
992 while in the custody of the division:
993 (i) the attorney general may, in accordance with Section 67-5-16, and with the consent
994 of the division, employ a child protective services investigator to conduct a conflict
995 investigation of the report; or
996 (ii) a law enforcement officer, as defined in Section 53-13-103, may, with the consent
997 of the division, conduct a conflict investigation of the report.
998 (d) Subsection (1)(c)(ii) does not prevent a law enforcement officer from, without the
999 consent of the division, conducting a criminal investigation of abuse or neglect under Title 53,
1000 Public Safety Code.
1001 (2) The investigators described in Subsections (1)(c) and (d) may also investigate
1002 allegations of abuse or neglect of a child by a department employee or a licensed substitute care
1003 provider.
1004 (3) The investigators described in Subsection (1), if not [
1005 enforcement officers, shall have the same rights, duties, and authority of a child protective
1006 services investigator employed by the division to:
1007 (a) make a thorough investigation upon receiving either an oral or written report of
1008 alleged abuse or neglect of a child, with the primary purpose of that investigation being the
1009 protection of the child;
1010 (b) make an inquiry into the child's home environment, emotional, or mental health, the
1011 nature and extent of the child's injuries, and the child's physical safety;
1012 (c) make a written report of their investigation, including determination regarding
1013 whether the alleged abuse or neglect was [
1014 unsupported, or without merit, and forward a copy of that report to the division within the time
1015 mandates for investigations established by the division; and
1016 (d) immediately consult with school authorities to verify the child's status in
1017 accordance with Sections 53G-6-201 through 53G-6-206 when a report is based upon or
1018 includes an allegation of educational neglect.
1019 (4) If there is a lapse in the contract with a private child protective service investigator
1020 and no other investigator is available under Subsection (1)(a) or (c), the department may
1021 conduct an independent investigation.
1022 Section 14. Section 62A-4a-205 is amended to read:
1023 62A-4a-205. Child and family plan -- Parent-time and relative visitation.
1024 (1) No more than 45 days after a child enters the temporary custody of the division, the
1025 child's child and family plan shall be finalized.
1026 (2) (a) The division may use an interdisciplinary team approach in developing each
1027 child and family plan.
1028 (b) The interdisciplinary team described in Subsection (2)(a) may include
1029 representatives from the following fields:
1030 (i) mental health;
1031 (ii) education; and
1032 (iii) if appropriate, law enforcement.
1033 (3) (a) The division shall involve all of the following in the development of a child's
1034 child and family plan:
1035 (i) both of the child's natural parents, unless the whereabouts of a parent are unknown;
1036 (ii) the child;
1037 (iii) the child's foster parents; and
1038 (iv) if appropriate, the child's stepparent[
1039 [
1040 (b) In relation to all information considered by the division in developing a child and
1041 family plan, additional weight and attention shall be given to the input of the child's natural and
1042 foster parents upon their involvement pursuant to Subsections (3)(a)(i) and (iii).
1043 (c) (i) The division shall make a substantial effort to develop a child and family plan
1044 with which the child's parents agree.
1045 (ii) If a parent does not agree with a child and family plan:
1046 (A) the division shall strive to resolve the disagreement between the division and the
1047 parent; and
1048 (B) if the disagreement is not resolved, the division shall inform the court of the
1049 disagreement.
1050 (d) Subsection (3)(a) does not prohibit the child's guardian ad litem from meeting with
1051 the child about the child's child and family plan at a time other than the time at which the
1052 parties described in Subsection (3)(a) meet to discuss the development of the child's child and
1053 family plan.
1054 (4) A copy of the child and family plan shall, immediately upon completion, or as soon
1055 as reasonably possible thereafter, be provided to the:
1056 (a) guardian ad litem;
1057 (b) child's natural parents; and
1058 (c) child's foster parents.
1059 (5) Each child and family plan shall:
1060 (a) specifically provide for the safety of the child, in accordance with federal law; and
1061 (b) clearly define what actions or precautions will, or may be, necessary to provide for
1062 the health, safety, protection, and welfare of the child.
1063 (6) The child and family plan shall set forth, with specificity, at least the following:
1064 (a) the reason the child entered into the custody of the division;
1065 (b) documentation of the:
1066 (i) reasonable efforts made to prevent placement of the child in the custody of the
1067 division; or
1068 (ii) emergency situation that existed and that prevented the reasonable efforts described
1069 in Subsection (6)(b)(i), from being made;
1070 (c) the primary permanency plan for the child and the reason for selection of that plan;
1071 (d) the concurrent permanency plan for the child and the reason for the selection of that
1072 plan;
1073 (e) if the plan is for the child to return to the child's family:
1074 (i) specifically what the parents must do in order to enable the child to be returned
1075 home;
1076 (ii) specifically how the requirements described in Subsection (6)(e)(i) may be
1077 accomplished; and
1078 (iii) how the requirements described in Subsection (6)(e)(i) will be measured;
1079 (f) the specific services needed to reduce the problems that necessitated placing the
1080 child in the division's custody;
1081 (g) the name of the person who will provide for and be responsible for case
1082 management;
1083 (h) subject to Subsection (10), a parent-time schedule between the natural parent and
1084 the child;
1085 (i) subject to Subsection (7), the health and mental health care to be provided to
1086 address any known or diagnosed mental health needs of the child;
1087 (j) if residential treatment rather than a foster home is the proposed placement, a
1088 requirement for a specialized assessment of the child's health needs including an assessment of
1089 mental illness and behavior and conduct disorders;
1090 (k) social summaries that include case history information pertinent to case planning;
1091 and
1092 (l) subject to Subsection (12), a sibling visitation schedule.
1093 (7) (a) Subject to Subsection (7)(b), in addition to the information required under
1094 Subsection (6)(i), the plan shall include a specialized assessment of the medical and mental
1095 health needs of a child, if the child:
1096 (i) is placed in residential treatment; and
1097 (ii) has medical or mental health issues that need to be addressed.
1098 (b) Notwithstanding Subsection (7)(a), a parent shall retain the right to seek a separate
1099 medical or mental health diagnosis of the parent's child from a licensed practitioner of the
1100 parent's choice.
1101 (8) (a) Each child and family plan shall be specific to each child and the child's family,
1102 rather than general.
1103 (b) The division shall train its workers to develop child and family plans that comply
1104 with:
1105 (i) federal mandates; and
1106 (ii) the specific needs of the particular child and the child's family.
1107 (c) All child and family plans and expectations shall be individualized and contain
1108 specific time frames.
1109 (d) Subject to Subsection (8)(h), child and family plans shall address problems that:
1110 (i) keep a child in placement; and
1111 (ii) keep a child from achieving permanence in the child's life.
1112 (e) Each child and family plan shall be designed to minimize disruption to the normal
1113 activities of the child's family, including employment and school.
1114 (f) In particular, the time, place, and amount of services, hearings, and other
1115 requirements ordered by the court in the child and family plan shall be designed, as much as
1116 practicable, to help the child's parents maintain or obtain employment.
1117 (g) The child's natural parents, foster parents, and where appropriate, stepparents, shall
1118 be kept informed of and supported to participate in important meetings and procedures related
1119 to the child's placement.
1120 (h) For purposes of Subsection (8)(d), a child and family plan may only include
1121 requirements that:
1122 (i) address findings made by the court; or
1123 (ii) (A) are requested or consented to by a parent or guardian of the child; and
1124 (B) are agreed to by the division and the guardian ad litem.
1125 (9) (a) Except as provided in Subsection (9)(b), with regard to a child who is three
1126 years of age or younger, if the plan is not to return the child home, the primary permanency
1127 plan for that child shall be adoption.
1128 (b) Notwithstanding Subsection (9)(a), if the division documents to the court that there
1129 is a compelling reason that adoption, reunification, guardianship, and a placement described in
1130 Subsection 78A-6-306(6)(e) are not in the child's best interest, the court may order another
1131 planned permanent living arrangement in accordance with federal law.
1132 (10) (a) Except as provided in Subsection (10)(b), parent-time may only be denied by a
1133 court order issued pursuant to Subsections 78A-6-312(3), (6), and (7).
1134 (b) Notwithstanding Subsection (10)(a), the person designated by the division or a
1135 court to supervise a parent-time session may deny parent-time for that session if the supervising
1136 person determines that, based on the parent's condition, it is necessary to deny parent-time in
1137 order to:
1138 (i) protect the physical safety of the child;
1139 (ii) protect the life of the child; or
1140 (iii) consistent with Subsection (10)(c), prevent the child from being traumatized by
1141 contact with the parent.
1142 (c) In determining whether the condition of the parent described in Subsection (10)(b)
1143 will traumatize a child, the person supervising the parent-time session shall consider the impact
1144 that the parent's condition will have on the child in light of:
1145 (i) the child's fear of the parent; and
1146 (ii) the nature of the alleged abuse or neglect.
1147 (11) The division shall consider visitation with their grandparents for children in state
1148 custody if the division determines visitation to be in the best interest of the child and:
1149 (a) there are no safety concerns regarding the behavior or criminal background of the
1150 grandparents;
1151 (b) allowing visitation would not compete with or undermine the reunification plan;
1152 (c) there is a substantial relationship between the grandparents and children; and
1153 (d) the visitation will not unduly burden the foster parents.
1154 (12) The child and family plan shall incorporate reasonable efforts to:
1155 (a) provide sibling visitation when:
1156 (i) siblings are separated due to foster care or adoptive placement;
1157 (ii) visitation is in the best interest of the child for whom the plan is developed; and
1158 (iii) the division has consent for sibling visitation from the legal guardian of the
1159 sibling; and
1160 (b) obtain consent for sibling visitation from the sibling's legal guardian when the
1161 criteria of Subsections (12)(a)(i) and (ii) are met.
1162 Section 15. Section 62A-4a-412 is amended to read:
1163 62A-4a-412. Reports and information confidential.
1164 (1) Except as otherwise provided in this chapter, reports made under this part, as well
1165 as any other information in the possession of the division obtained as the result of a report are
1166 private, protected, or controlled records under Title 63G, Chapter 2, Government Records
1167 Access and Management Act, and may only be made available to:
1168 (a) a police or law enforcement agency investigating a report of known or suspected
1169 abuse or neglect, including members of a child protection unit;
1170 (b) a physician who reasonably believes that a child may be the subject of abuse or
1171 neglect;
1172 (c) an agency that has responsibility or authority to care for, treat, or supervise a minor
1173 who is the subject of a report;
1174 (d) a contract provider that has a written contract with the division to render services to
1175 a minor who is the subject of a report;
1176 (e) except as provided in Subsection 63G-2-202(10), a subject of the report, the natural
1177 parents of the child, and the guardian ad litem;
1178 (f) a court, upon a finding that access to the records may be necessary for the
1179 determination of an issue before the court, provided that in a divorce, custody, or related
1180 proceeding between private parties, the record alone is:
1181 (i) limited to objective or undisputed facts that were verified at the time of the
1182 investigation; and
1183 (ii) devoid of conclusions drawn by the division or any of the division's workers on the
1184 ultimate issue of whether or not a person's acts or omissions constituted any level of abuse or
1185 neglect of another person;
1186 (g) an office of the public prosecutor or its deputies in performing an official duty;
1187 (h) a person authorized by a Children's Justice Center, for the purposes described in
1188 Section 67-5b-102;
1189 (i) a person engaged in bona fide research, when approved by the director of the
1190 division, if the information does not include names and addresses;
1191 (j) the State Board of Education, acting on behalf of itself or on behalf of a school
1192 district, for the purpose of evaluating whether an individual should be permitted to obtain or
1193 retain a license as an educator or serve as an employee or volunteer in a school, limited to
1194 information with substantiated or supported findings involving an alleged sexual offense, an
1195 alleged felony or class A misdemeanor drug offense, or any alleged offense against the person
1196 under Title 76, Chapter 5, Offenses Against the Person, and with the understanding that the
1197 office must provide the subject of a report received under Subsection (1)(k) with an
1198 opportunity to respond to the report before making a decision concerning licensure or
1199 employment;
1200 (k) any person identified in the report as a perpetrator or possible perpetrator of abuse
1201 or neglect, after being advised of the screening prohibition in Subsection (2);
1202 (l) except as provided in Subsection 63G-2-202(10), a person filing a petition for a
1203 child protective order on behalf of a child who is the subject of the report;
1204 (m) a licensed child-placing agency or person who is performing a preplacement
1205 adoptive evaluation in accordance with the requirements of Sections 78B-6-128 and
1206 78B-6-130; or
1207 (n) an Indian tribe to:
1208 (i) certify or license a foster home;
1209 (ii) render services to a subject of a report; or
1210 (iii) investigate an allegation of abuse, neglect, or dependency.
1211 (2) (a) A person, unless listed in Subsection (1), may not request another person to
1212 obtain or release a report or any other information in the possession of the division obtained as
1213 a result of the report that is available under Subsection (1)(k) to screen for potential
1214 perpetrators of abuse or neglect.
1215 (b) A person who requests information knowing that it is a violation of Subsection
1216 (2)(a) to do so is subject to the criminal penalty in Subsection (4).
1217 (3) (a) Except as provided in Section 62A-4a-1007 and Subsection (3)(b), the division
1218 and law enforcement officials shall ensure the anonymity of the person or persons making the
1219 initial report and any others involved in its subsequent investigation.
1220 (b) Notwithstanding any other provision of law, excluding Section 78A-6-317, but
1221 including this chapter and Title 63G, Chapter 2, Government Records Access and Management
1222 Act, when the division makes a report or other information in its possession available under
1223 Subsection (1)(e) to a subject of the report or a parent of a child, the division shall remove from
1224 the report or other information only the names, addresses, and telephone numbers of
1225 individuals or specific information that could:
1226 (i) identify the referent;
1227 (ii) impede a criminal investigation; or
1228 (iii) endanger a person's safety.
1229 (4) Any person who wilfully permits, or aides and abets the release of data or
1230 information obtained as a result of this part, in the possession of the division or contained on
1231 any part of the Management Information System, in violation of this part or Sections
1232 62A-4a-1003 through 62A-4a-1007, is guilty of a class C misdemeanor.
1233 (5) The physician-patient privilege is not a ground for excluding evidence regarding a
1234 child's injuries or the cause of those injuries, in any proceeding resulting from a report made in
1235 good faith pursuant to this part.
1236 (6) A child-placing agency or person who receives a report in connection with a
1237 preplacement adoptive evaluation pursuant to Sections 78B-6-128 and 78B-6-130:
1238 (a) may provide this report to the person who is the subject of the report; and
1239 (b) may provide this report to a person who is performing a preplacement adoptive
1240 evaluation in accordance with the requirement of Sections 78B-6-128 and 78B-6-130, or to a
1241 licensed child-placing agency or to an attorney seeking to facilitate an adoption.
1242 Section 16. Section 62A-4a-602 is amended to read:
1243 62A-4a-602. Licensure requirements -- Prohibited acts.
1244 (1) No person may engage in child placing, or solicit money or other assistance for
1245 child placing, without a valid license issued by the Office of Licensing, in accordance with
1246 Chapter 2, Licensure of Programs and Facilities. When a child-placing agency's license is
1247 suspended or revoked in accordance with that chapter, the care, control, or custody of any child
1248 who has been in the care, control, or custody of that agency shall be transferred to the division.
1249 (2) (a) An attorney, physician, or other person may assist a parent in identifying or
1250 locating a person interested in adopting the parent's child, or in identifying or locating a child to
1251 be adopted. However, no payment, charge, fee, reimbursement of expense, or exchange of
1252 value of any kind, or promise or agreement to make the same, may be made for that assistance.
1253 (b) An attorney, physician, or other person may not:
1254 (i) issue or cause to be issued to any person a card, sign, or device indicating that he is
1255 available to provide that assistance;
1256 (ii) cause, permit, or allow any sign or marking indicating that he is available to
1257 provide that assistance, on or in any building or structure;
1258 (iii) announce or cause, permit, or allow an announcement indicating that he is
1259 available to provide that assistance, to appear in any newspaper, magazine, directory, or on
1260 radio or television; or
1261 (iv) advertise by any other means that he is available to provide that assistance.
1262 (3) Nothing in this part precludes payment of fees for medical, legal, or other lawful
1263 services rendered in connection with the care of a mother, delivery and care of a child, or
1264 lawful adoption proceedings; and no provision of this part abrogates the right of procedures for
1265 independent adoption as provided by law.
1266 (4) In accordance with federal law, only agents or employees of the division and of
1267 licensed child placing agencies may certify to the United States Immigration and Naturalization
1268 Service that a family meets the division's preadoption requirements.
1269 (5) (a) [
1270 any attorney practicing in this state may place a child for adoption, either temporarily or
1271 permanently, with any individual or individuals that would not be qualified for adoptive
1272 placement pursuant to the provisions of Sections 78B-6-117, 78B-6-102, and 78B-6-137.
1273 (b) [
1274 not place a child in foster care with any individual or individuals that would not be qualified
1275 for adoptive placement pursuant to the provisions of Sections 78B-6-117, 78B-6-102, and
1276 78B-6-137. However, nothing in this Subsection (5)(b) limits the placement of a child in foster
1277 care with the child's biological or adoptive parent.
1278 (c) [
1279 the state, the division shall establish a [
1280
1281 married under the laws of this state. However, nothing in this Subsection (5)(c) limits the
1282 placement of a child with the child's biological or adoptive parent.
1283 Section 17. Section 62A-4a-711 is amended to read:
1284 62A-4a-711. Penalty.
1285 An individual or entity that knowingly engages in an unregulated custody transfer, as
1286 defined in [
1287 Section 18. Section 62A-4a-905 is amended to read:
1288 62A-4a-905. Supplemental adoption assistance.
1289 (1) The division may, based upon annual legislative appropriations for adoption
1290 assistance and division rules, provide supplemental adoption assistance for [
1291 a child who has a special need. Supplemental adoption assistance shall be provided only after
1292 all other resources for which a child is eligible have been exhausted.
1293 (2) (a) The department shall, by rule, establish in each region at least one advisory
1294 committee to review and make recommendations to the division on individual requests for
1295 supplemental adoption assistance. The committee shall be comprised of [
1296
1297 (i) an adoption expert;
1298 (ii) an adoptive parent;
1299 (iii) a division representative;
1300 (iv) a foster parent; and
1301 (v) an adoption caseworker.
1302 (b) The division [
1303 [
1304 that require review by the committee established in this Subsection (2).
1305 Section 19. Section 62A-4a-1003 is amended to read:
1306 62A-4a-1003. Management Information System -- Requirements -- Contents --
1307 Purpose -- Access.
1308 (1) (a) The division shall develop and implement a Management Information System
1309 that meets the requirements of this section and the requirements of federal law and regulation.
1310 (b) The information and records contained in the Management Information System:
1311 (i) are protected records under Title 63G, Chapter 2, Government Records Access and
1312 Management Act; and
1313 (ii) except as provided in Subsections (1)(c) and (d), are available only to a person with
1314 statutory authorization under Title 63G, Chapter 2, Government Records Access and
1315 Management Act, to review the information and records described in this Subsection (1)(b).
1316 (c) Notwithstanding Subsection (1)(b)(ii), the information and records described in
1317 Subsection (1)(b) are available to a person:
1318 (i) as provided under Subsection (6) or Section 62A-4a-1006; or
1319 (ii) who has specific statutory authorization to access the information or records for the
1320 purpose of assisting the state with state and federal requirements to maintain information solely
1321 for the purpose of protecting minors and providing services to families in need.
1322 (d) Notwithstanding Subsection (1)(b)(ii), the information and records described in
1323 Subsection (1)(b) may, to the extent required by Title IV-B or IV-E of the Social Security Act,
1324 be provided by the division:
1325 (i) to comply with abuse and neglect registry checks requested by other states; and
1326 (ii) to the United States Department of Health and Human Services for purposes of
1327 maintaining an electronic national registry of supported or substantiated cases of abuse and
1328 neglect.
1329 (2) With regard to all child welfare cases, the Management Information System shall
1330 provide each caseworker and the department's office of licensing, exclusively for the purposes
1331 of foster parent licensure and monitoring, with a complete history of each child in that worker's
1332 caseload, including:
1333 (a) a record of all past action taken by the division with regard to that child and the
1334 child's siblings;
1335 (b) the complete case history and all reports and information in the control or keeping
1336 of the division regarding that child and the child's siblings;
1337 (c) the number of times the child has been in the custody of the division;
1338 (d) the cumulative period of time the child has been in the custody of the division;
1339 (e) a record of all reports of abuse or neglect received by the division with regard to
1340 that child's parent, parents, or guardian including:
1341 (i) for each report, documentation of the:
1342 (A) latest status; or
1343 (B) final outcome or determination; and
1344 (ii) information that indicates whether each report was found to be:
1345 (A) supported;
1346 (B) unsupported;
1347 (C) substantiated [
1348 (D) unsubstantiated [
1349 (E) without merit;
1350 (f) the number of times the child's parent or parents failed any child and family plan;
1351 and
1352 (g) the number of different caseworkers who have been assigned to that child in the
1353 past.
1354 (3) The division's Management Information System shall:
1355 (a) contain all key elements of each family's current child and family plan, including:
1356 (i) the dates and number of times the plan has been administratively or judicially
1357 reviewed;
1358 (ii) the number of times the parent or parents have failed that child and family plan;
1359 and
1360 (iii) the exact length of time the child and family plan has been in effect; and
1361 (b) alert caseworkers regarding deadlines for completion of and compliance with
1362 policy, including child and family plans.
1363 (4) With regard to all child protective services cases, the Management Information
1364 System shall:
1365 (a) monitor the compliance of each case with:
1366 (i) division rule [
1367 (ii) state law; and
1368 (iii) federal law and regulation; and
1369 (b) include the age and date of birth of the alleged perpetrator at the time the abuse or
1370 neglect is alleged to have occurred, in order to ensure accuracy regarding the identification of
1371 the alleged perpetrator.
1372 (5) Except as provided in Subsection (6) regarding contract providers and Section
1373 62A-4a-1006 regarding limited access to the Licensing Information System, all information
1374 contained in the division's Management Information System is available to the department,
1375 upon the approval of the executive director, on a need-to-know basis.
1376 (6) (a) Subject to this Subsection (6), the division may allow the division's contract
1377 providers, court clerks designated by the Administrative Office of the Courts, the Office of
1378 Guardian Ad Litem, or an Indian tribe to have limited access to the Management Information
1379 System.
1380 (b) A division contract provider or Indian tribe has access only to information about a
1381 person who is currently receiving services from that specific contract provider or Indian tribe.
1382 (c) (i) Designated court clerks may only have access to information necessary to
1383 comply with Subsection 78B-7-202(2).
1384 (ii) The Office of Guardian Ad Litem may access only the information that:
1385 (A) relates to children and families where the Office of Guardian Ad Litem is
1386 appointed by a court to represent the interests of the children; and
1387 (B) except as provided in Subsection (6)(d), is entered into the Management
1388 Information System on or after July 1, 2004.
1389 (d) Notwithstanding Subsection (6)(c)(ii)(B), the Office of Guardian Ad Litem shall
1390 have access to all abuse and neglect referrals about children and families where the office has
1391 been appointed by a court to represent the interests of the children, regardless of the date that
1392 the information is entered into the Management Information System.
1393 (e) Each contract provider, designated representative of the Office of Guardian Ad
1394 Litem, and Indian tribe who requests access to information contained in the Management
1395 Information System shall:
1396 (i) take all necessary precautions to safeguard the security of the information contained
1397 in the Management Information System;
1398 (ii) train its employees regarding:
1399 (A) requirements for protecting the information contained in the Management
1400 Information System as required by this chapter and under Title 63G, Chapter 2, Government
1401 Records Access and Management Act; and
1402 (B) the criminal penalties under Sections 62A-4a-412 and 63G-2-801 for improper
1403 release of information; and
1404 (iii) monitor its employees to ensure that they protect the information contained in the
1405 Management Information System as required by law.
1406 (f) The division shall take reasonable precautions to ensure that its contract providers
1407 comply with the requirements of this Subsection (6).
1408 (7) The division shall take all necessary precautions, including password protection and
1409 other appropriate and available technological techniques, to prevent unauthorized access to or
1410 release of information contained in the Management Information System.
1411 Section 20. Section 63G-4-402 is amended to read:
1412 63G-4-402. Judicial review -- Informal adjudicative proceedings.
1413 (1) (a) The district courts have jurisdiction to review by trial de novo all final agency
1414 actions resulting from informal adjudicative proceedings, except that the juvenile courts have
1415 jurisdiction over all [
1416 (i) the removal or placement of children in state custody;
1417 (ii) the support of children under Subsection (1)(a)(i) as determined administratively
1418 under Section 78A-6-1106; and
1419 (iii) [
1420 Child and Family Services[
1421 (b) Venue for judicial review of informal adjudicative proceedings shall be as provided
1422 in the statute governing the agency or, in the absence of such a venue provision, in the county
1423 where the petitioner resides or maintains the petitioner's principal place of business.
1424 (2) (a) The petition for judicial review of informal adjudicative proceedings shall be a
1425 complaint governed by the Utah Rules of Civil Procedure and shall include:
1426 (i) the name and mailing address of the party seeking judicial review;
1427 (ii) the name and mailing address of the respondent agency;
1428 (iii) the title and date of the final agency action to be reviewed, together with a copy,
1429 summary, or brief description of the agency action;
1430 (iv) identification of the persons who were parties in the informal adjudicative
1431 proceedings that led to the agency action;
1432 (v) a copy of the written agency order from the informal proceeding;
1433 (vi) facts demonstrating that the party seeking judicial review is entitled to obtain
1434 judicial review;
1435 (vii) a request for relief, specifying the type and extent of relief requested; and
1436 (viii) a statement of the reasons why the petitioner is entitled to relief.
1437 (b) All additional pleadings and proceedings in the district court are governed by the
1438 Utah Rules of Civil Procedure.
1439 (3) (a) The court, without a jury, shall determine all questions of fact and law and any
1440 constitutional issue presented in the pleadings.
1441 (b) The Utah Rules of Evidence apply in judicial proceedings under this section.
1442 Section 21. Section 76-5-110 is amended to read:
1443 76-5-110. Abuse or neglect of a child with a disability.
1444 (1) As used in this section:
1445 (a) "Abuse" means:
1446 (i) inflicting physical injury, as that term is defined in Section 76-5-109;
1447 (ii) having the care or custody of a child with a disability, causing or permitting another
1448 to inflict physical injury, as that term is defined in Section 76-5-109; or
1449 (iii) unreasonable confinement.
1450 (b) "Caretaker" means:
1451 (i) any parent, legal guardian, or other person having under that person's care and
1452 custody a child with a disability; or
1453 (ii) any person, corporation, or public institution that has assumed by contract or court
1454 order the responsibility to provide food, shelter, clothing, medical, and other necessities to a
1455 child with a disability.
1456 (c) "Child with a disability" means any person under 18 years of age who is impaired
1457 because of mental illness, mental deficiency, physical illness or disability, or other cause, to the
1458 extent that the person is unable to care for the person's own personal safety or to provide
1459 necessities such as food, shelter, clothing, and medical care.
1460 (d) "Neglect" means failure by a caretaker to provide care, nutrition, clothing, shelter,
1461 supervision, or medical care.
1462 (2) Any caretaker who intentionally, knowingly, or recklessly abuses or neglects a child
1463 with a disability is guilty of a third degree felony.
1464 (3) (a) A parent or legal guardian who provides a child with treatment by spiritual
1465 means alone through prayer, in lieu of medical treatment, in accordance with the tenets and
1466 practices of an established church or religious denomination of which the parent or legal
1467 guardian is a member or adherent shall not, for that reason alone, be considered to be in
1468 violation under this section.
1469 (b) Subject to Subsection 78A-6-117(2)[
1470 (3)(a) does not preclude a court from ordering medical services from a physician licensed to
1471 engage in the practice of medicine to be provided to the child where there is substantial risk of
1472 harm to the child's health or welfare if the treatment is not provided.
1473 (c) A caretaker of a child with a disability does not violate this section by selecting a
1474 treatment option for a medical condition of a child with a disability, if the treatment option is
1475 one that a reasonable caretaker would believe to be in the best interest of the child with a
1476 disability.
1477 Section 22. Section 78A-6-105 is amended to read:
1478 78A-6-105. Definitions.
1479 As used in this chapter:
1480 (1) (a) "Abuse" means:
1481 (i) (A) nonaccidental harm of a child;
1482 (B) threatened harm of a child;
1483 (C) sexual exploitation;
1484 (D) sexual abuse; or
1485 (E) human trafficking of a child in violation of Section 76-5-308.5; or
1486 (ii) that a child's natural parent:
1487 (A) intentionally, knowingly, or recklessly causes the death of another parent of the
1488 child;
1489 (B) is identified by a law enforcement agency as the primary suspect in an investigation
1490 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
1491 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
1492 recklessly causing the death of another parent of the child.
1493 (b) "Abuse" does not include:
1494 (i) reasonable discipline or management of a child, including withholding privileges;
1495 (ii) conduct described in Section 76-2-401; or
1496 (iii) the use of reasonable and necessary physical restraint or force on a child:
1497 (A) in self-defense;
1498 (B) in defense of others;
1499 (C) to protect the child; or
1500 (D) to remove a weapon in the possession of a child for any of the reasons described in
1501 Subsections (1)(b)(iii)(A) through (C).
1502 (2) "Abused child" means a child who has been subjected to abuse.
1503 (3) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
1504 alleged in the petition have been proved. A finding of not competent to proceed pursuant to
1505 Section 78A-6-1302 is not an adjudication.
1506 (4) "Adult" means an individual 18 years of age or over, except that an individual 18
1507 years or over under the continuing jurisdiction of the juvenile court pursuant to Section
1508 78A-6-120 shall be referred to as a minor.
1509 (5) "Board" means the Board of Juvenile Court Judges.
1510 (6) "Child" means an individual under 18 years of age.
1511 (7) "Child placement agency" means:
1512 (a) a private agency licensed to receive a child for placement or adoption under this
1513 code; or
1514 (b) a private agency that receives a child for placement or adoption in another state,
1515 which agency is licensed or approved where such license or approval is required by law.
1516 (8) "Clandestine laboratory operation" means the same as that term is defined in
1517 Section 58-37d-3.
1518 (9) "Commit" means, unless specified otherwise:
1519 (a) with respect to a child, to transfer legal custody; and
1520 (b) with respect to a minor who is at least 18 years of age, to transfer custody.
1521 (10) "Court" means the juvenile court.
1522 (11) "Criminogenic risk factors" means evidence-based factors that are associated with
1523 a minor's likelihood of reoffending.
1524 (12) "Delinquent act" means an act that would constitute a felony or misdemeanor if
1525 committed by an adult.
1526 (13) "Dependent child" includes a child who is homeless or without proper care
1527 through no fault of the child's parent, guardian, or custodian.
1528 (14) "Deprivation of custody" means transfer of legal custody by the court from a
1529 parent or the parents or a previous legal custodian to another person, agency, or institution.
1530 (15) "Detention" means home detention and secure detention as defined in Section
1531 62A-7-101 for the temporary care of a minor who requires secure custody in a physically
1532 restricting facility:
1533 (a) pending court disposition or transfer to another jurisdiction; or
1534 (b) while under the continuing jurisdiction of the court.
1535 (16) "Detention risk assessment tool" means an evidence-based tool established under
1536 Section 78A-6-124, on and after July 1, 2018, that assesses a minor's risk of failing to appear in
1537 court or reoffending pre-adjudication and designed to assist in making detention
1538 determinations.
1539 (17) "Division" means the Division of Child and Family Services.
1540 (18) "Educational neglect" means that, after receiving a notice of compulsory education
1541 violation under Section 53G-6-202, the parent or guardian fails to make a good faith effort to
1542 ensure that the child receives an appropriate education.
1543 (19) "Evidence-based" means a program or practice that has had multiple randomized
1544 control studies or a meta-analysis demonstrating that the program or practice is effective for a
1545 specific population or has been rated as effective by a standardized program evaluation tool.
1546 (20) "Formal probation" means a minor is under field supervision by the probation
1547 department or other agency designated by the court and subject to return to the court in
1548 accordance with Section 78A-6-123 on and after July 1, 2018.
1549 (21) "Formal referral" means a written report from a peace officer or other person
1550 informing the court that a minor is or appears to be within the court's jurisdiction and that a
1551 case must be reviewed.
1552 (22) "Group rehabilitation therapy" means psychological and social counseling of one
1553 or more individuals in the group, depending upon the recommendation of the therapist.
1554 (23) "Guardianship of the person" includes the authority to consent to:
1555 (a) marriage;
1556 (b) enlistment in the armed forces;
1557 (c) major medical, surgical, or psychiatric treatment; or
1558 (d) legal custody, if legal custody is not vested in another individual, agency, or
1559 institution.
1560 (24) "Habitual truant" means the same as that term is defined in Section 53G-6-201.
1561 (25) "Harm" means:
1562 (a) physical or developmental injury or damage;
1563 (b) emotional damage that results in a serious impairment in the child's growth,
1564 development, behavior, or psychological functioning;
1565 (c) sexual abuse; or
1566 (d) sexual exploitation.
1567 (26) (a) "Incest" means engaging in sexual intercourse with an individual whom the
1568 perpetrator knows to be the perpetrator's ancestor, descendant, brother, sister, uncle, aunt,
1569 nephew, niece, or first cousin.
1570 (b) The relationships described in Subsection (26)(a) include:
1571 (i) blood relationships of the whole or half blood, without regard to legitimacy;
1572 (ii) relationships of parent and child by adoption; and
1573 (iii) relationships of stepparent and stepchild while the marriage creating the
1574 relationship of a stepparent and stepchild exists.
1575 (27) "Intake probation" means a period of court monitoring that does not include field
1576 supervision, but is overseen by a juvenile probation officer, during which a minor is subject to
1577 return to the court in accordance with Section 78A-6-123 on and after July 1, 2018.
1578 (28) "Intellectual disability" means:
1579 (a) significantly subaverage intellectual functioning, an IQ of approximately 70 or
1580 below on an individually administered IQ test, for infants, a clinical judgment of significantly
1581 subaverage intellectual functioning;
1582 (b) concurrent deficits or impairments in present adaptive functioning, regarding the
1583 individual's effectiveness in meeting the standards expected for the individual's age by the
1584 individual's cultural group, in at least two of the following areas: communication, self-care,
1585 home living, social/interpersonal skills, use of community resources, self-direction, functional
1586 academic skills, work, leisure, health, and safety; and
1587 (c) the onset is before the individual reaches the age of 18 years.
1588 (29) "Legal custody" means a relationship embodying the following rights and duties:
1589 (a) the right to physical custody of the minor;
1590 (b) the right and duty to protect, train, and discipline the minor;
1591 (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary
1592 medical care;
1593 (d) the right to determine where and with whom the minor shall live; and
1594 (e) the right, in an emergency, to authorize surgery or other extraordinary care.
1595 (30) "Material loss" means an uninsured:
1596 (a) property loss;
1597 (b) out-of-pocket monetary loss;
1598 (c) lost wages; or
1599 (d) medical expenses.
1600 (31) "Mental disorder" means a serious emotional and mental disturbance that severely
1601 limits a minor's development and welfare over a significant period of time.
1602 (32) "Minor" means:
1603 (a) a child; or
1604 (b) an individual who is:
1605 (i) at least 18 years of age and younger than 21 years of age; and
1606 (ii) under the jurisdiction of the juvenile court.
1607 (33) "Mobile crisis outreach team" means a crisis intervention service for minors or
1608 families of minors experiencing behavioral health or psychiatric emergencies.
1609 (34) "Molestation" means that an individual, with the intent to arouse or gratify the
1610 sexual desire of any individual, touches the anus, buttocks, pubic area, or genitalia of any child,
1611 or the breast of a female child, or takes indecent liberties with a child as defined in Section
1612 76-5-416.
1613 (35) "Natural parent" means a minor's biological or adoptive parent, and includes the
1614 minor's noncustodial parent.
1615 (36) (a) "Neglect" means action or inaction causing:
1616 (i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
1617 Relinquishment of a Newborn Child;
1618 (ii) lack of proper parental care of a child by reason of the fault or habits of the parent,
1619 guardian, or custodian;
1620 (iii) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
1621 subsistence or medical care, or any other care necessary for the child's health, safety, morals, or
1622 well-being;
1623 (iv) a child to be at risk of being neglected or abused because another child in the same
1624 home is neglected or abused;
1625 (v) abandonment of a child through an unregulated custody transfer; or
1626 (vi) educational neglect.
1627 (b) "Neglect" does not include:
1628 (i) a parent or guardian legitimately practicing religious beliefs and who, for that
1629 reason, does not provide specified medical treatment for a child;
1630 (ii) a health care decision made for a child by the child's parent or guardian, unless the
1631 state or other party to a proceeding shows, by clear and convincing evidence, that the health
1632 care decision is not reasonable and informed;
1633 (iii) a parent or guardian exercising the right described in Section 78A-6-301.5; or
1634 (iv) permitting a child, whose basic needs are met and who is of sufficient age and
1635 maturity to avoid harm or unreasonable risk of harm, to engage in independent activities,
1636 including:
1637 (A) traveling to and from school, including by walking, running, or bicycling;
1638 (B) traveling to and from nearby commercial or recreational facilities;
1639 (C) engaging in outdoor play;
1640 (D) remaining in a vehicle unattended, except under the conditions described in
1641 Subsection 76-10-2202(2);
1642 (E) remaining at home unattended; or
1643 (F) engaging in a similar independent activity.
1644 (37) "Neglected child" means a child who has been subjected to neglect.
1645 (38) "Nonjudicial adjustment" means closure of the case by the assigned probation
1646 officer without judicial determination upon the consent in writing of:
1647 (a) the assigned probation officer; and
1648 (b) (i) the minor; or
1649 (ii) the minor and the minor's parent, legal guardian, or custodian.
1650 (39) "Not competent to proceed" means that a minor, due to a mental disorder,
1651 intellectual disability, or related condition as defined, lacks the ability to:
1652 (a) understand the nature of the proceedings against them or of the potential disposition
1653 for the offense charged; or
1654 (b) consult with counsel and participate in the proceedings against them with a
1655 reasonable degree of rational understanding.
1656 (40) "Physical abuse" means abuse that results in physical injury or damage to a child.
1657 (41) "Probation" means a legal status created by court order following an adjudication
1658 on the ground of a violation of law or under Section 78A-6-103, whereby the minor is
1659 permitted to remain in the minor's home under prescribed conditions.
1660 (42) "Protective supervision" means a legal status created by court order following an
1661 adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
1662 remain in the minor's home, and supervision and assistance to correct the abuse, neglect, or
1663 dependency is provided by the probation department or other agency designated by the court.
1664 (43) "Related condition" means a condition closely related to intellectual disability in
1665 accordance with 42 C.F.R. Part 435.1010 and further defined in Rule R539-1-3, Utah
1666 Administrative Code.
1667 (44) (a) "Residual parental rights and duties" means those rights and duties remaining
1668 with the parent after legal custody or guardianship, or both, have been vested in another person
1669 or agency, including:
1670 (i) the responsibility for support;
1671 (ii) the right to consent to adoption;
1672 (iii) the right to determine the child's religious affiliation; and
1673 (iv) the right to reasonable parent-time unless restricted by the court.
1674 (b) If no guardian has been appointed, "residual parental rights and duties" also include
1675 the right to consent to:
1676 (i) marriage;
1677 (ii) enlistment; and
1678 (iii) major medical, surgical, or psychiatric treatment.
1679 (45) "Secure facility" means any facility operated by or under contract with the
1680 Division of Juvenile Justice Services, that provides 24-hour supervision and confinement for
1681 youth offenders committed to the division for custody and rehabilitation pursuant to Subsection
1682 78A-6-117(2)(d).
1683 (46) "Severe abuse" means abuse that causes or threatens to cause serious harm to a
1684 child.
1685 (47) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
1686 child.
1687 (48) "Sexual abuse" means:
1688 (a) an act or attempted act of sexual intercourse, sodomy, incest, or molestation by an
1689 adult directed towards a child;
1690 (b) an act or attempted act of sexual intercourse, sodomy, incest, or molestation
1691 committed by a child towards another child if:
1692 (i) there is an indication of force or coercion;
1693 (ii) the children are related, as described in Subsection (26), including siblings by
1694 marriage while the marriage exists or by adoption;
1695 (iii) there have been repeated incidents of sexual contact between the two children,
1696 unless the children are 14 years of age or older; or
1697 (iv) there is a disparity in chronological age of four or more years between the two
1698 children;
1699 (c) engaging in any conduct with a child that would constitute an offense under any of
1700 the following, regardless of whether the individual who engages in the conduct is actually
1701 charged with, or convicted of, the offense:
1702 (i) Title 76, Chapter 5, Part 4, Sexual Offenses, except for Section 76-5-401, if the
1703 alleged perpetrator of an offense described in Section 76-5-401 is a minor;
1704 (ii) child bigamy, Section 76-7-101.5;
1705 (iii) incest, Section 76-7-102;
1706 (iv) lewdness, Section 76-9-702;
1707 (v) sexual battery, Section 76-9-702.1;
1708 (vi) lewdness involving a child, Section 76-9-702.5; or
1709 (vii) voyeurism, Section 76-9-702.7; or
1710 (d) subjecting a child to participate in or threatening to subject a child to participate in
1711 a sexual relationship, regardless of whether that sexual relationship is part of a legal or cultural
1712 marriage.
1713 (49) "Sexual exploitation" means knowingly:
1714 (a) employing, using, persuading, inducing, enticing, or coercing any child to:
1715 (i) pose in the nude for the purpose of sexual arousal of any individual; or
1716 (ii) engage in any sexual or simulated sexual conduct for the purpose of photographing,
1717 filming, recording, or displaying in any way the sexual or simulated sexual conduct;
1718 (b) displaying, distributing, possessing for the purpose of distribution, or selling
1719 material depicting a child:
1720 (i) in the nude, for the purpose of sexual arousal of any individual; or
1721 (ii) engaging in sexual or simulated sexual conduct; or
1722 (c) engaging in any conduct that would constitute an offense under Section 76-5b-201,
1723 sexual exploitation of a minor, regardless of whether the individual who engages in the conduct
1724 is actually charged with, or convicted of, the offense.
1725 (50) "Shelter" means the temporary care of a child in a physically unrestricted facility
1726 pending court disposition or transfer to another jurisdiction.
1727 (51) "Status offense" means a violation of the law that would not be a violation but for
1728 the age of the offender.
1729 (52) "Substance abuse" means the misuse or excessive use of alcohol or other drugs or
1730 substances.
1731 (53) "Substantiated" means the same as that term is defined in Section 62A-4a-101.
1732 (54) "Supported" means the same as that term is defined in Section 62A-4a-101.
1733 (55) "Termination of parental rights" means the permanent elimination of all parental
1734 rights and duties, including residual parental rights and duties, by court order.
1735 (56) "Therapist" means:
1736 (a) an individual employed by a state division or agency for the purpose of conducting
1737 psychological treatment and counseling of a minor in its custody; or
1738 (b) any other individual licensed or approved by the state for the purpose of conducting
1739 psychological treatment and counseling.
1740 (57) "Threatened harm" means actions, inactions, or credible verbal threats, indicating
1741 that the child is at an unreasonable risk of harm or neglect.
1742 [
1743 (a) with an individual who is not the child's parent, step-parent, grandparent, adult
1744 sibling, adult uncle or aunt, or legal guardian, or a friend of the family who is an adult and with
1745 whom the child is familiar, or a member of the child's federally recognized tribe;
1746 (b) with the intent of severing the child's existing parent-child or guardian-child
1747 relationship; and
1748 (c) without taking:
1749 (i) reasonable steps to ensure the safety of the child and permanency of the placement;
1750 and
1751 (ii) the necessary steps to transfer the legal rights and responsibilities of parenthood or
1752 guardianship to the individual taking custody of the child.
1753 (59) "Unsupported" means the same as that term is defined in Section 62A-4a-101.
1754 [
1755 62A-4a-101.
1756 [
1757 assesses a minor's risk of reoffending and a minor's criminogenic needs.
1758 [
1759 62A-4a-101.
1760 Section 23. Section 78A-6-117 is amended to read:
1761 78A-6-117. Adjudication of jurisdiction of juvenile court -- Disposition of cases --
1762 Enumeration of possible court orders -- Considerations of court.
1763 (1) (a) When a minor is found to come within Section 78A-6-103, the court shall so
1764 adjudicate. The court shall make a finding of the facts upon which it bases its jurisdiction over
1765 the minor. However, in cases within Subsection 78A-6-103(1), findings of fact are not
1766 necessary.
1767 (b) If the court adjudicates a minor for a crime of violence or an offense in violation of
1768 Title 76, Chapter 10, Part 5, Weapons, it shall order that notice of the adjudication be provided
1769 to the school superintendent of the district in which the minor resides or attends school. Notice
1770 shall be made to the district superintendent within three days of the adjudication and shall
1771 include:
1772 (i) the specific offenses for which the minor was adjudicated; and
1773 (ii) if available, if the victim:
1774 (A) resides in the same school district as the minor; or
1775 (B) attends the same school as the minor.
1776 (c) An adjudicated minor shall undergo a risk screening or, if indicated, a validated risk
1777 and needs assessment. Results of the screening or assessment shall be used to inform
1778 disposition decisions and case planning. Assessment results, if available, may not be shared
1779 with the court before adjudication.
1780 (2) Upon adjudication the court may make the following dispositions by court order:
1781 (a) (i) the court may place the minor on probation or under protective supervision in
1782 the minor's own home and upon conditions determined by the court, including community or
1783 compensatory service;
1784 (ii) a condition ordered by the court under Subsection (2)(a)(i):
1785 (A) shall be individualized and address a specific risk or need;
1786 (B) shall be based on information provided to the court, including the results of a
1787 validated risk and needs assessment conducted under Subsection (1)(c); [
1788 (C) if the court orders treatment, shall be based on a validated risk and needs
1789 assessment conducted under Subsection (1)(c); and
1790 (D) if the court orders protective supervision, may not designate the division as the
1791 provider of protective supervision unless there is a petition regarding abuse, neglect, or
1792 dependency before the court from the division or the guardian ad litem requesting that the
1793 division provide protective supervision;
1794 (iii) a court may not issue a standard order that contains control-oriented conditions;
1795 (iv) prohibitions on weapon possession, where appropriate, shall be specific to the
1796 minor and not the minor's family;
1797 (v) if the court orders probation, the court may direct that notice of the court's order be
1798 provided to designated persons in the local law enforcement agency and the school or
1799 transferee school, if applicable, that the minor attends. The designated persons may receive the
1800 information for purposes of the minor's supervision and student safety; and
1801 (vi) an employee of the local law enforcement agency and the school that the minor
1802 attends who discloses the court's order of probation is not:
1803 (A) civilly liable except when the disclosure constitutes fraud or willful misconduct as
1804 provided in Section 63G-7-202; and
1805 (B) civilly or criminally liable except when the disclosure constitutes a knowing
1806 violation of Section 63G-2-801.
1807 (b) The court may place the minor in the legal custody of a relative or other suitable
1808 person, with or without probation or other court-specified child welfare services, but the
1809 juvenile court may not assume the function of developing foster home services.
1810 (c) (i) The court shall only vest legal custody of the minor in the Division of Juvenile
1811 Justice Services and order the Division of Juvenile Justice Services to provide dispositional
1812 recommendations and services if:
1813 (A) nonresidential treatment options have been exhausted or nonresidential treatment
1814 options are not appropriate; and
1815 (B) the minor is adjudicated under this section for a felony offense, a misdemeanor
1816 when the minor has five prior misdemeanors or felony adjudications arising from separate
1817 criminal episodes, or a misdemeanor involving the use of a dangerous weapon as defined in
1818 Section 76-1-601.
1819 (ii) The court may not vest legal custody of a minor in the Division of Juvenile Justice
1820 Services for:
1821 (A) contempt of court except to the extent permitted under Section 78A-6-1101;
1822 (B) a violation of probation;
1823 (C) failure to pay a fine, fee, restitution, or other financial obligation;
1824 (D) unfinished compensatory or community service hours;
1825 (E) an infraction; or
1826 (F) a status offense.
1827 (iii) (A) A minor who is 18 years old or older, but younger than 21 years old, may
1828 petition the court to express the minor's desire to be removed from the jurisdiction of the
1829 juvenile court and from the custody of the Division of Child and Family Services if the minor
1830 is in the division's custody on grounds of abuse, neglect, or dependency.
1831 (B) If the minor's parent's rights have not been terminated in accordance with Part 5,
1832 Termination of Parental Rights Act, the minor's petition shall contain a statement from the
1833 minor's parent or guardian agreeing that the minor should be removed from the custody of the
1834 Division of Child and Family Services.
1835 (C) The minor and the minor's parent or guardian shall sign the petition.
1836 (D) The court shall review the petition within 14 days.
1837 (E) The court shall remove the minor from the custody of the Division of Child and
1838 Family Services if the minor and the minor's parent or guardian have met the requirements
1839 described in Subsections (2)(c)(iii)(B) and (C) and if the court finds, based on input from the
1840 Division of Child and Family Services, the minor's guardian ad litem, and the Office of the
1841 Attorney General, that the minor does not pose an imminent threat to self or others.
1842 (F) A minor removed from custody under Subsection (2)(c)(iii)(E) may, within 90 days
1843 of the date of removal, petition the court to re-enter custody of the Division of Child and
1844 Family Services.
1845 (G) Upon receiving a petition under Subsection (2)(c)(iii)(F), the court shall order the
1846 Division of Child and Family Services to take custody of the minor based on the findings the
1847 court entered when the court originally vested custody in the Division of Child and Family
1848 Services.
1849 (d) (i) The court shall only commit a minor to the Division of Juvenile Justice Services
1850 for secure confinement if the court finds that the minor poses a risk of harm to others and is
1851 adjudicated under this section for:
1852 (A) a felony offense;
1853 (B) a misdemeanor if the minor has five prior misdemeanor or felony adjudications
1854 arising from separate criminal episodes; or
1855 (C) a misdemeanor involving use of a dangerous weapon as defined in Section
1856 76-1-601.
1857 (ii) A minor under the jurisdiction of the court solely on the ground of abuse, neglect,
1858 or dependency under Subsection 78A-6-103(1)(b) may not be committed to the Division of
1859 Juvenile Justice Services.
1860 (iii) The court may not commit a minor to the Division of Juvenile Justice Services for
1861 secure confinement for:
1862 (A) contempt of court;
1863 (B) a violation of probation;
1864 (C) failure to pay a fine, fee, restitution, or other financial obligation;
1865 (D) unfinished compensatory or community service hours;
1866 (E) an infraction; or
1867 (F) a status offense.
1868 (e) The court may order nonresidential, diagnostic assessment, including substance use
1869 disorder, mental health, psychological, or sexual behavior risk assessment.
1870 (f) (i) The court may commit a minor to a place of detention or an alternative to
1871 detention for a period not to exceed 30 cumulative days per adjudication subject to the court
1872 retaining continuing jurisdiction over the minor. This commitment may not be suspended upon
1873 conditions ordered by the court.
1874 (ii) This Subsection (2)(f) applies only to a minor adjudicated for:
1875 (A) an act which if committed by an adult would be a criminal offense; or
1876 (B) contempt of court under Section 78A-6-1101.
1877 (iii) The court may not commit a minor to a place of detention for:
1878 (A) contempt of court except to the extent allowed under Section 78A-6-1101;
1879 (B) a violation of probation;
1880 (C) failure to pay a fine, fee, restitution, or other financial obligation;
1881 (D) unfinished compensatory or community service hours;
1882 (E) an infraction; or
1883 (F) a status offense.
1884 (iv) (A) Time spent in detention pre-adjudication shall be credited toward the 30
1885 cumulative days eligible as a disposition under Subsection (2)(f)(i). If the minor spent more
1886 than 30 days in a place of detention before disposition, the court may not commit a minor to
1887 detention under this section.
1888 (B) Notwithstanding Subsection (2)(f)(iv)(A), the court may commit a minor for a
1889 maximum of seven days while a minor is awaiting placement under Subsection (2)(c)(i). Only
1890 the seven days under this Subsection (2)(f)(iv)(B) may be combined with a nonsecure
1891 placement.
1892 (v) Notwithstanding Subsection (2)(t), no more than seven days of detention may be
1893 ordered in combination with an order under Subsection (2)(c)(i).
1894 (g) The court may vest legal custody of an abused, neglected, or dependent minor in
1895 the Division of Child and Family Services or any other appropriate person in accordance with
1896 the requirements and procedures of Title 78A, Chapter 6, Part 3, Abuse, Neglect, and
1897 Dependency Proceedings.
1898 (h) (i) The court may order a minor to repair, replace, or otherwise make restitution for
1899 material loss caused by the minor's wrongful act or for conduct for which the minor agrees to
1900 make restitution.
1901 (ii) A victim has the meaning defined under Subsection 77-38a-102(14). A victim of an
1902 offense that involves as an element a scheme, a conspiracy, or a pattern of criminal activity,
1903 includes any person directly harmed by the minor's delinquency conduct in the course of the
1904 scheme, conspiracy, or pattern.
1905 (iii) If the victim and the minor agree to participate, the court may refer the case to a
1906 restorative justice program such as victim offender mediation to address how loss resulting
1907 from the adjudicated act may be addressed.
1908 (iv) For the purpose of determining whether and how much restitution is appropriate,
1909 the court shall consider the following:
1910 (A) restitution shall only be ordered for the victim's material loss;
1911 (B) restitution may not be ordered if the court finds that the minor is unable to pay or
1912 acquire the means to pay; and
1913 (C) any amount paid by the minor to the victim in civil penalty shall be credited against
1914 restitution owed.
1915 (v) Any amount paid to the victim in restitution shall be credited against liability in a
1916 civil suit.
1917 (vi) The court may also require a minor to reimburse an individual, entity, or
1918 governmental agency who offered and paid a reward to a person or persons for providing
1919 information resulting in a court adjudication that the minor is within the jurisdiction of the
1920 juvenile court due to the commission of a criminal offense.
1921 (vii) If a minor is returned to this state under the Interstate Compact on Juveniles, the
1922 court may order the minor to make restitution for costs expended by any governmental entity
1923 for the return.
1924 (viii) The prosecutor shall submit a request for restitution to the court at the time of
1925 disposition, if feasible, otherwise within three months after disposition.
1926 (ix) A financial disposition ordered shall prioritize the payment of restitution.
1927 (i) The court may issue orders necessary for the collection of restitution and fines
1928 ordered by the court, including garnishments, wage withholdings, and executions, except for an
1929 order that changes the custody of the minor, including detention or other secure or nonsecure
1930 residential placements.
1931 (j) (i) The court may through its probation department encourage the development of
1932 nonresidential employment or work programs to enable minors to fulfill their obligations under
1933 Subsection (2)(h) and for other purposes considered desirable by the court.
1934 (ii) Consistent with the order of the court, the probation officer may permit a minor
1935 found to be within the jurisdiction of the court to participate in a program of work restitution or
1936 compensatory service in lieu of paying part or all of the fine imposed by the court.
1937 (iii) The court may order the minor to:
1938 (A) pay a fine, fee, restitution, or other cost; or
1939 (B) complete service hours.
1940 (iv) If the court orders a minor to pay a fine, fee, restitution, or other cost, or to
1941 complete service hours, those dispositions shall be considered collectively to ensure that the
1942 order is reasonable and prioritizes restitution.
1943 (v) If the court orders a minor to pay a fine, fee, or other cost, or complete service
1944 hours, the cumulative order shall be limited per criminal episode as follows:
1945 (A) for children under age 16 at adjudication, the court may impose up to $180 or up to
1946 24 hours of service; and
1947 (B) for minors 16 and older at adjudication, the court may impose up to $270 or up to
1948 36 hours of service.
1949 (vi) The cumulative order under Subsection (2)(j)(v) does not include restitution.
1950 (vii) If the court converts a fine, fee, or restitution amount to service hours, the rate of
1951 conversion shall be no less than the minimum wage.
1952 (k) (i) In violations of traffic laws within the court's jurisdiction, when the court finds
1953 that as part of the commission of the violation the minor was in actual physical control of a
1954 motor vehicle, the court may, in addition to any other disposition authorized by this section:
1955 (A) restrain the minor from driving for periods of time the court considers necessary;
1956 and
1957 (B) take possession of the minor's driver license.
1958 (ii) The court may enter any other eligible disposition under Subsection (2)(k)(i) except
1959 for a disposition under Subsection (2)(c), (d), or (f). However, the suspension of driving
1960 privileges for an offense under Section 78A-6-606 is governed only by Section 78A-6-606.
1961 (l) (i) The court may order a minor to complete community or compensatory service
1962 hours in accordance with Subsections (2)(j)(iv) and (v).
1963 (ii) When community service is ordered, the presumptive service order shall include
1964 between five and 10 hours of service.
1965 (iii) Satisfactory completion of an approved substance use disorder prevention or
1966 treatment program or other court-ordered condition may be credited by the court as
1967 compensatory service hours.
1968 (iv) When a minor is found within the jurisdiction of the juvenile court under Section
1969 78A-6-103 because of a violation of Section 76-6-106 or 76-6-206 using graffiti, the court may
1970 order the minor to clean up graffiti created by the minor or any other person at a time and place
1971 within the jurisdiction of the court. Compensatory service ordered under this section may be
1972 performed in the presence and under the direct supervision of the minor's parent or legal
1973 guardian. The parent or legal guardian shall report completion of the order to the court. The
1974 court may also require the minor to perform other alternative forms of restitution or repair to
1975 the damaged property pursuant to Subsection (2)(h).
1976 (m) (i) Subject to Subsection (2)(m)(iii), the court may order that a minor:
1977 (A) be examined or treated by a physician, surgeon, psychiatrist, or psychologist; or
1978 (B) receive other special care.
1979 (ii) For purposes of receiving the examination, treatment, or care described in
1980 Subsection (2)(m)(i), the court may place the minor in a hospital or other suitable facility that is
1981 not a secure facility or secure detention.
1982 (iii) In determining whether to order the examination, treatment, or care described in
1983 Subsection (2)(m)(i), the court shall consider:
1984 (A) the desires of the minor;
1985 (B) if the minor is under the age of 18, the desires of the parents or guardian of the
1986 minor; and
1987 (C) whether the potential benefits of the examination, treatment, or care outweigh the
1988 potential risks and side-effects, including behavioral disturbances, suicidal ideation, brain
1989 function impairment, or emotional or physical harm resulting from the compulsory nature of
1990 the examination, treatment, or care.
1991 (iv) The Division of Child and Family Services shall take reasonable measures to
1992 notify a parent or guardian of any non-emergency health treatment or care scheduled for a
1993 child, shall include the parent or guardian as fully as possible in making health care decisions
1994 for the child, and shall defer to the parent's or guardian's reasonable and informed decisions
1995 regarding the child's health care to the extent that the child's health and well being are not
1996 unreasonably compromised by the parent's or guardian's decision.
1997 (v) The Division of Child and Family Services shall notify the parent or guardian of a
1998 child within five business days after a child in the custody of the Division of Child and Family
1999 Services receives emergency health care or treatment.
2000 (vi) The Division of Child and Family Services shall use the least restrictive means to
2001 accomplish a compelling interest in the care and treatment of a child described in this
2002 Subsection (2)(m).
2003 (n) (i) The court may appoint a guardian for the minor if it appears necessary in the
2004 interest of the minor, and may appoint as guardian a public or private institution or agency, but
2005 not a nonsecure residential placement provider, in which legal custody of the minor is vested.
2006 (ii) In placing a minor under the guardianship or legal custody of an individual or of a
2007 private agency or institution, the court shall give primary consideration to the welfare of the
2008 minor. When practicable, the court may take into consideration the religious preferences of the
2009 minor and of a child's parents.
2010 (o) (i) In support of a decree under Section 78A-6-103, the court may order reasonable
2011 conditions to be complied with by a minor's parents or guardian, a minor's custodian, or any
2012 other person who has been made a party to the proceedings. Conditions may include:
2013 (A) parent-time by the parents or one parent;
2014 (B) restrictions on the minor's associates;
2015 (C) restrictions on the minor's occupation and other activities; and
2016 (D) requirements to be observed by the parents or custodian.
2017 (ii) A minor whose parents or guardians successfully complete a family or other
2018 counseling program may be credited by the court for detention, confinement, or probation time.
2019 (p) The court may order the child to be committed to the physical custody of a local
2020 mental health authority, in accordance with the procedures and requirements of Title 62A,
2021 Chapter 15, Part 7, Commitment of Persons Under Age 18 to Division of Substance Abuse and
2022 Mental Health.
2023 (q) (i) The court may make an order committing a minor within the court's jurisdiction
2024 to the Utah State Developmental Center if the minor has an intellectual disability in accordance
2025 with Title 62A, Chapter 5, Part 3, Admission to an Intermediate Care Facility for People with
2026 an Intellectual Disability.
2027 (ii) The court shall follow the procedure applicable in the district courts with respect to
2028 judicial commitments to the Utah State Developmental Center when ordering a commitment
2029 under Subsection (2)(q)(i).
2030 (r) The court may terminate all parental rights upon a finding of compliance with Title
2031 78A, Chapter 6, Part 5, Termination of Parental Rights Act.
2032 (s) The court may make other reasonable orders for the best interest of the minor and as
2033 required for the protection of the public, except that a child may not be committed to jail,
2034 prison, secure detention, or the custody of the Division of Juvenile Justice Services under
2035 Subsections (2)(c) and (d).
2036 (t) The court may combine the dispositions listed in this section if it is permissible and
2037 they are compatible.
2038 (u) Before depriving any parent of custody, the court shall give due consideration to the
2039 rights of parents concerning their child. The court may transfer custody of a minor to another
2040 person, agency, or institution in accordance with the requirements and procedures of Title 78A,
2041 Chapter 6, Part 3, Abuse, Neglect, and Dependency Proceedings.
2042 (v) Except as provided in Subsection (2)(x)(i), an order under this section for probation
2043 or placement of a minor with an individual or an agency shall include a date certain for a
2044 review and presumptive termination of the case by the court in accordance with Subsection (6)
2045 and Section 62A-7-404. A new date shall be set upon each review.
2046 (w) In reviewing foster home placements, special attention shall be given to making
2047 adoptable children available for adoption without delay.
2048 (x) (i) The juvenile court may enter an order of permanent custody and guardianship
2049 with an individual or relative of a child where the court has previously acquired jurisdiction as
2050 a result of an adjudication of abuse, neglect, or dependency. The juvenile court may enter an
2051 order for child support on behalf of the child against the natural or adoptive parents of the
2052 child.
2053 (ii) Orders under Subsection (2)(x)(i):
2054 (A) shall remain in effect until the child reaches majority;
2055 (B) are not subject to review under Section 78A-6-118; and
2056 (C) may be modified by petition or motion as provided in Section 78A-6-1103.
2057 (iii) Orders permanently terminating the rights of a parent, guardian, or custodian and
2058 permanent orders of custody and guardianship do not expire with a termination of jurisdiction
2059 of the juvenile court.
2060 (3) In addition to the dispositions described in Subsection (2), when a minor comes
2061 within the court's jurisdiction, the minor may be given a choice by the court to serve in the
2062 National Guard in lieu of other sanctions, provided:
2063 (a) the minor meets the current entrance qualifications for service in the National
2064 Guard as determined by a recruiter, whose determination is final;
2065 (b) the minor is not under the jurisdiction of the court for any act that:
2066 (i) would be a felony if committed by an adult;
2067 (ii) is a violation of Title 58, Chapter 37, Utah Controlled Substances Act; or
2068 (iii) was committed with a weapon; and
2069 (c) the court retains jurisdiction over the minor under conditions set by the court and
2070 agreed upon by the recruiter or the unit commander to which the minor is eventually assigned.
2071 (4) (a) A DNA specimen shall be obtained from a minor who is under the jurisdiction
2072 of the court as described in Subsection 53-10-403(3). The specimen shall be obtained by
2073 designated employees of the court or, if the minor is in the legal custody of the Division of
2074 Juvenile Justice Services, then by designated employees of the division under Subsection
2075 53-10-404(5)(b).
2076 (b) The responsible agency shall ensure that employees designated to collect the saliva
2077 DNA specimens receive appropriate training and that the specimens are obtained in accordance
2078 with accepted protocol.
2079 (c) Reimbursements paid under Subsection 53-10-404(2)(a) shall be placed in the DNA
2080 Specimen Restricted Account created in Section 53-10-407.
2081 (d) Payment of the reimbursement is second in priority to payments the minor is
2082 ordered to make for restitution under this section and treatment under Section 78A-6-321.
2083 (5) (a) A disposition made by the court pursuant to this section may not be suspended,
2084 except for the following:
2085 (i) If a minor qualifies for commitment to the Division of Juvenile Justice Services
2086 under Subsection (2)(c) or (d), the court may suspend a custody order pursuant to Subsection
2087 (2)(c) or (d) in lieu of immediate commitment, upon the condition that the minor commit no
2088 new misdemeanor or felony offense during the three months following the day of disposition.
2089 (ii) The duration of a suspended custody order made under Subsection (5)(a)(i) may not
2090 exceed three months post-disposition and may not be extended under any circumstance.
2091 (iii) The court may only impose a custody order suspended under Subsection (5)(a)(i)
2092 following adjudication of a new misdemeanor or felony offense committed by the minor during
2093 the period of suspension set out under Subsection (5)(a)(ii) or if a new assessment or
2094 evaluation has been completed and recommends that a higher level of care is needed and
2095 nonresidential treatment options have been exhausted or nonresidential treatment options are
2096 not appropriate.
2097 (iv) A suspended custody order may not be imposed without notice to the minor, notice
2098 to counsel, and a hearing.
2099 (b) The court pursuant to Subsection (5)(a) shall terminate jurisdiction over the minor
2100 at the end of the presumptive time frame unless at least one the following circumstances exists:
2101 (i) termination pursuant to Subsection (6)(a)(ii) would interrupt the completion of a
2102 program determined to be necessary by the results of a validated risk and needs assessment
2103 with completion found by the court after considering the recommendation of a licensed service
2104 provider on the basis of the minor completing the goals of the necessary treatment program;
2105 (ii) the minor commits a new misdemeanor or felony offense;
2106 (iii) service hours have not been completed; or
2107 (iv) there is an outstanding fine.
2108 (6) When the court places a minor on probation under Subsection (2)(a) or vests legal
2109 custody of the minor in the Division of Juvenile Justice Services under Subsection (2)(c), the
2110 court shall do so for a defined period of time pursuant to this section.
2111 (a) For the purposes of placing a minor on probation under Subsection (2)(a), the court
2112 shall establish a presumptive term of probation as specified in this Subsection (6):
2113 (i) the presumptive maximum length of intake probation may not exceed three months;
2114 and
2115 (ii) the presumptive maximum length of formal probation may not exceed four to six
2116 months.
2117 (b) For the purposes of vesting legal custody of the minor in the Division of Juvenile
2118 Justice Services under Subsection (2)(c), the court shall establish a maximum term of custody
2119 and a maximum term of aftercare as specified in this Subsection (6):
2120 (i) the presumptive maximum length of out-of-home placement may not exceed three
2121 to six months; and
2122 (ii) the presumptive maximum length of aftercare supervision, for those previously
2123 placed out-of-home, may not exceed three to four months, and minors may serve the term of
2124 aftercare in the home of a qualifying relative or guardian or at an independent living program
2125 contracted or operated by the Division of Juvenile Justice Services.
2126 (c) The court pursuant to Subsections (6)(a) and (b), and the Youth Parole Authority
2127 pursuant to Subsection (6)(b), shall terminate jurisdiction over the minor at the end of the
2128 presumptive time frame unless at least one of the following circumstances exists:
2129 (i) termination pursuant to Subsection (6)(a)(ii) would interrupt the completion of a
2130 court ordered program determined to be necessary by the results of a validated assessment, with
2131 completion found by the court after considering the recommendations of a licensed service
2132 provider or facilitator of court ordered treatment or intervention program on the basis of the
2133 minor completing the goals of the necessary treatment program;
2134 (ii) termination pursuant to Subsection (6)(a)(i) or (6)(b) would interrupt the
2135 completion of a program determined to be necessary by the results of a validated assessment,
2136 with completion determined on the basis of whether the minor has regularly and consistently
2137 attended the treatment program and completed the goals of the necessary treatment program as
2138 determined by the court or Youth Parole Authority after considering the recommendation of a
2139 licensed service provider or facilitator of court ordered treatment or intervention program ;
2140 (iii) the minor commits a new misdemeanor or felony offense;
2141 (iv) service hours have not been completed; or
2142 (v) there is an outstanding fine.
2143 (d) (i) Subject to Subsection (6)(g), if one of the circumstances under Subsection
2144 (6)(c)(i), (ii), (iii), or (iv) exists, the court may extend jurisdiction for the time needed to
2145 address the specific circumstance.
2146 (ii) Subject to Subsection (6)(g), if one of the circumstances under Subsection (6)(c)(i),
2147 (ii), (iii), or (iv) exists, and the Youth Parole Authority has jurisdiction, the Youth Parole
2148 Authority may extend jurisdiction for the time needed to address the specific circumstance.
2149 (e) If the circumstance under Subsection (6)(c)(iv) exists, the court, or the Youth
2150 Parole Authority if the Youth Parole Authority has jurisdiction, may extend jurisdiction one
2151 time for up to three months.
2152 (f) Grounds for extension of the presumptive length of supervision or placement and
2153 the length of any extension shall be recorded in the court record or records of the Youth Parole
2154 Authority if the Youth Parole Authority has jurisdiction, and tracked in the data system used by
2155 the Administrative Office of the Courts and the Division of Juvenile Justice Services.
2156 (g) (i) For a minor who is under the supervision of the juvenile court and whose
2157 supervision is extended to complete service hours under Subsection (6)(c)(iv), jurisdiction may
2158 only be continued under the supervision of intake probation.
2159 (ii) For a minor who is under the jurisdiction of the Youth Parole Authority whose
2160 supervision is extended to complete service hours under Subsection (6)(c)(iv), jurisdiction may
2161 only be continued on parole and not in secure confinement.
2162 (h) In the event of an unauthorized leave lasting more than 24 hours, the supervision
2163 period shall toll until the minor returns.
2164 (7) Subsection (6) does not apply to any minor adjudicated under this section for:
2165 (a) Section 76-5-103, aggravated assault resulting in serious bodily injury to another;
2166 (b) Section 76-5-202, attempted aggravated murder;
2167 (c) Section 76-5-203, murder or attempted murder;
2168 (d) Section 76-5-302, aggravated kidnapping;
2169 (e) Section 76-5-405, aggravated sexual assault;
2170 (f) a felony violation of Section 76-6-103, aggravated arson;
2171 (g) Section 76-6-203, aggravated burglary;
2172 (h) Section 76-6-302, aggravated robbery;
2173 (i) Section 76-10-508.1, felony discharge of a firearm; or
2174 (j) an offense other than those listed in Subsections (7)(a) through (i) involving the use
2175 of a dangerous weapon, as defined in Section 76-1-601, that is a felony, and the minor has been
2176 previously adjudicated or convicted of an offense involving the use of a dangerous weapon.
2177 Section 24. Section 78A-6-302 is amended to read:
2178 78A-6-302. Court-ordered protective custody of a child following petition filing --
2179 Grounds.
2180 (1) After a petition has been filed under Section 78A-6-304, if the child who is the
2181 subject of the petition is not in the protective custody of the division, a court may order that the
2182 child be removed from the child's home or otherwise taken into protective custody if the court
2183 finds, by a preponderance of the evidence, that any one or more of the following circumstances
2184 exist:
2185 (a) (i) there is an imminent danger to the physical health or safety of the child; and
2186 (ii) the child's physical health or safety may not be protected without removing the
2187 child from the custody of the child's parent or guardian;
2188 (b) (i) a parent or guardian engages in or threatens the child with unreasonable conduct
2189 that causes the child to suffer harm; and
2190 (ii) there are no less restrictive means available by which the child's emotional health
2191 may be protected without removing the child from the custody of the child's parent or guardian;
2192 (c) the child or another child residing in the same household has been, or is considered
2193 to be at substantial risk of being, physically abused, sexually abused, or sexually exploited, by a
2194 parent or guardian, a member of the parent's or guardian's household, or other person known to
2195 the parent or guardian;
2196 (d) the parent or guardian is unwilling to have physical custody of the child;
2197 (e) the child is abandoned or left without any provision for the child's support;
2198 (f) a parent or guardian who has been incarcerated or institutionalized has not arranged
2199 or cannot arrange for safe and appropriate care for the child;
2200 (g) (i) a relative or other adult custodian with whom the child is left by the parent or
2201 guardian is unwilling or unable to provide care or support for the child;
2202 (ii) the whereabouts of the parent or guardian are unknown; and
2203 (iii) reasonable efforts to locate the parent or guardian are unsuccessful;
2204 (h) subject to Subsections 78A-6-105[
2205 and Section 78A-6-301.5, the child is in immediate need of medical care;
2206 (i) (i) a parent's or guardian's actions, omissions, or habitual action create an
2207 environment that poses a serious risk to the child's health or safety for which immediate
2208 remedial or preventive action is necessary; or
2209 (ii) a parent's or guardian's action in leaving a child unattended would reasonably pose
2210 a threat to the child's health or safety;
2211 (j) the child or another child residing in the same household has been neglected;
2212 (k) the child's natural parent:
2213 (i) intentionally, knowingly, or recklessly causes the death of another parent of the
2214 child;
2215 (ii) is identified by a law enforcement agency as the primary suspect in an investigation
2216 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
2217 (iii) is being prosecuted for or has been convicted of intentionally, knowingly, or
2218 recklessly causing the death of another parent of the child;
2219 (l) an infant has been abandoned, as defined in Section 78A-6-316;
2220 (m) (i) the parent or guardian, or an adult residing in the same household as the parent
2221 or guardian, is charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab
2222 Act; and
2223 (ii) any clandestine laboratory operation was located in the residence or on the property
2224 where the child resided; or
2225 (n) the child's welfare is otherwise endangered.
2226 (2) (a) For purposes of Subsection (1)(a), if a child has previously been adjudicated as
2227 abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
2228 occurs involving the same substantiated abuser or under similar circumstance as the previous
2229 abuse, that fact constitutes prima facie evidence that the child cannot safely remain in the
2230 custody of the child's parent.
2231 (b) For purposes of Subsection (1)(c):
2232 (i) another child residing in the same household may not be removed from the home
2233 unless that child is considered to be at substantial risk of being physically abused, sexually
2234 abused, or sexually exploited as described in Subsection (1)(c) or Subsection (2)(b)(ii); and
2235 (ii) if a parent or guardian has received actual notice that physical abuse, sexual abuse,
2236 or sexual exploitation by a person known to the parent has occurred, and there is evidence that
2237 the parent or guardian failed to protect the child, after having received the notice, by allowing
2238 the child to be in the physical presence of the alleged abuser, that fact constitutes prima facie
2239 evidence that the child is at substantial risk of being physically abused, sexually abused, or
2240 sexually exploited.
2241 (3) (a) For purposes of Subsection (1), if the division files a petition under Section
2242 78A-6-304, the court shall consider the division's safety and risk assessments described in
2243 Section 62A-4a-203.1 to determine whether a child should be removed from the custody of the
2244 child's parent or guardian or should otherwise be taken into protective custody.
2245 (b) The division shall make a diligent effort to provide the safety and risk assessments
2246 described in Section 62A-4a-203.1 to the court, guardian ad litem, and counsel for the parent or
2247 guardian, as soon as practicable before the shelter hearing described in Section 78A-6-306.
2248 (4) In the absence of one of the factors described in Subsection (1), a court may not
2249 remove a child from the parent's or guardian's custody on the basis of:
2250 (a) educational neglect, truancy, or failure to comply with a court order to attend
2251 school;
2252 (b) mental illness or poverty of the parent or guardian; or
2253 (c) disability of the parent or guardian, as defined in Section 57-21-2.
2254 (5) A child removed from the custody of the child's parent or guardian under this
2255 section may not be placed or kept in a secure detention facility pending further court
2256 proceedings unless the child is detainable based on guidelines promulgated by the Division of
2257 Juvenile Justice Services.
2258 (6) This section does not preclude removal of a child from the child's home without a
2259 warrant or court order under Section 62A-4a-202.1.
2260 (7) (a) Except as provided in Subsection (7)(b), a court or the Division of Child and
2261 Family Services may not remove a child from the custody of the child's parent or guardian on
2262 the sole or primary basis that the parent or guardian refuses to consent to:
2263 (i) the administration of a psychotropic medication to a child;
2264 (ii) a psychiatric, psychological, or behavioral treatment for a child; or
2265 (iii) a psychiatric or behavioral health evaluation of a child.
2266 (b) Notwithstanding Subsection (7)(a), a court or the Division of Child and Family
2267 Services may remove a child under conditions that would otherwise be prohibited under
2268 Subsection (7)(a) if failure to take an action described under Subsection (7)(a) would present a
2269 serious, imminent risk to the child's physical safety or the physical safety of others.
2270 Section 25. Section 78A-6-306 is amended to read:
2271 78A-6-306. Shelter hearing.
2272 (1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
2273 after any one or all of the following occur:
2274 (a) removal of the child from the child's home by the division;
2275 (b) placement of the child in the protective custody of the division;
2276 (c) emergency placement under Subsection 62A-4a-202.1(4);
2277 (d) as an alternative to removal of the child, a parent enters a domestic violence shelter
2278 at the request of the division; or
2279 (e) a "Motion for Expedited Placement in Temporary Custody" is filed under
2280 Subsection 78A-6-106(4).
2281 (2) If one of the circumstances described in Subsections (1)(a) through (e) occurs, the
2282 division shall issue a notice that contains all of the following:
2283 (a) the name and address of the person to whom the notice is directed;
2284 (b) the date, time, and place of the shelter hearing;
2285 (c) the name of the child on whose behalf a petition is being brought;
2286 (d) a concise statement regarding:
2287 (i) the reasons for removal or other action of the division under Subsection (1); and
2288 (ii) the allegations and code sections under which the proceeding has been instituted;
2289 (e) a statement that the parent or guardian to whom notice is given, and the child, are
2290 entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
2291 indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
2292 provided in accordance with the provisions of Section 78A-6-1111; and
2293 (f) a statement that the parent or guardian is liable for the cost of support of the child in
2294 the protective custody, temporary custody, and custody of the division, and the cost for legal
2295 counsel appointed for the parent or guardian under Subsection (2)(e), according to the financial
2296 ability of the parent or guardian.
2297 (3) The notice described in Subsection (2) shall be personally served as soon as
2298 possible, but no later than one business day after removal of the child from the child's home, or
2299 the filing of a "Motion for Expedited Placement in Temporary Custody" under Subsection
2300 78A-6-106(4), on:
2301 (a) the appropriate guardian ad litem; and
2302 (b) both parents and any guardian of the child, unless the parents or guardians cannot
2303 be located.
2304 (4) The following persons shall be present at the shelter hearing:
2305 (a) the child, unless it would be detrimental for the child;
2306 (b) the child's parents or guardian, unless the parents or guardian cannot be located, or
2307 fail to appear in response to the notice;
2308 (c) counsel for the parents, if one is requested;
2309 (d) the child's guardian ad litem;
2310 (e) the caseworker from the division who is assigned to the case; and
2311 (f) the attorney from the attorney general's office who is representing the division.
2312 (5) (a) At the shelter hearing, the court shall:
2313 (i) provide an opportunity to provide relevant testimony to:
2314 (A) the child's parent or guardian, if present; and
2315 (B) any other person having relevant knowledge; and
2316 (ii) subject to Section 78A-6-305, provide an opportunity for the child to testify.
2317 (b) The court:
2318 (i) may consider all relevant evidence, in accordance with the Utah Rules of Juvenile
2319 Procedure;
2320 (ii) shall hear relevant evidence presented by the child, the child's parent or guardian,
2321 the requesting party, or their counsel; and
2322 (iii) may in its discretion limit testimony and evidence to only that which goes to the
2323 issues of removal and the child's need for continued protection.
2324 (6) If the child is in the protective custody of the division, the division shall report to
2325 the court:
2326 (a) the reason why the child was removed from the parent's or guardian's custody;
2327 (b) any services provided to the child and the child's family in an effort to prevent
2328 removal;
2329 (c) the need, if any, for continued shelter;
2330 (d) the available services that could facilitate the return of the child to the custody of
2331 the child's parent or guardian; and
2332 (e) subject to Subsections 78A-6-307(18)(c) through (e), whether any relatives of the
2333 child or friends of the child's parents may be able and willing to accept temporary placement of
2334 the child.
2335 (7) The court shall consider all relevant evidence provided by persons or entities
2336 authorized to present relevant evidence pursuant to this section.
2337 (8) (a) If necessary to protect the child, preserve the rights of a party, or for other good
2338 cause shown, the court may grant no more than one continuance, not to exceed five judicial
2339 days.
2340 (b) A court shall honor, as nearly as practicable, the request by a parent or guardian for
2341 a continuance under Subsection (8)(a).
2342 (c) Notwithstanding Subsection (8)(a), if the division fails to provide the notice
2343 described in Subsection (2) within the time described in Subsection (3), the court may grant the
2344 request of a parent or guardian for a continuance, not to exceed five judicial days.
2345 (9) (a) If the child is in the protective custody of the division, the court shall order that
2346 the child be returned to the custody of the parent or guardian unless it finds, by a
2347 preponderance of the evidence, consistent with the protections and requirements provided in
2348 Subsection 62A-4a-201(1), that any one of the following exists:
2349 (i) subject to Subsection (9)(b)(i), there is a serious danger to the physical health or
2350 safety of the child and the child's physical health or safety may not be protected without
2351 removing the child from the custody of the child's parent;
2352 (ii) (A) the child is suffering emotional damage that results in a serious impairment in
2353 the child's growth, development, behavior, or psychological functioning;
2354 (B) the parent or guardian is unwilling or unable to make reasonable changes that
2355 would sufficiently prevent future damage; and
2356 (C) there are no reasonable means available by which the child's emotional health may
2357 be protected without removing the child from the custody of the child's parent or guardian;
2358 (iii) there is a substantial risk that the child will suffer abuse or neglect if the child is
2359 not removed from the custody of the child's parent or guardian;
2360 (iv) subject to Subsection (9)(b)(ii), the child or a minor residing in the same
2361 household has been, or is considered to be at substantial risk of being, physically abused,
2362 sexually abused, or sexually exploited by a:
2363 (A) parent or guardian;
2364 (B) member of the parent's household or the guardian's household; or
2365 (C) person known to the parent or guardian;
2366 (v) the parent or guardian is unwilling to have physical custody of the child;
2367 (vi) the child is without any provision for the child's support;
2368 (vii) a parent who is incarcerated or institutionalized has not or cannot arrange for safe
2369 and appropriate care for the child;
2370 (viii) (A) a relative or other adult custodian with whom the child is left by the parent or
2371 guardian is unwilling or unable to provide care or support for the child;
2372 (B) the whereabouts of the parent or guardian are unknown; and
2373 (C) reasonable efforts to locate the parent or guardian are unsuccessful;
2374 (ix) subject to Subsections 78A-6-105[
2375 and Section 78A-6-301.5, the child is in immediate need of medical care;
2376 (x) (A) the physical environment or the fact that the child is left unattended beyond a
2377 reasonable period of time poses a threat to the child's health or safety; and
2378 (B) the parent or guardian is unwilling or unable to make reasonable changes that
2379 would remove the threat;
2380 (xi) (A) the child or a minor residing in the same household has been neglected; and
2381 (B) the parent or guardian is unwilling or unable to make reasonable changes that
2382 would prevent the neglect;
2383 (xii) the parent, guardian, or an adult residing in the same household as the parent or
2384 guardian, is charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act,
2385 and any clandestine laboratory operation was located in the residence or on the property where
2386 the child resided;
2387 (xiii) (A) the child's welfare is substantially endangered; and
2388 (B) the parent or guardian is unwilling or unable to make reasonable changes that
2389 would remove the danger; or
2390 (xiv) the child's natural parent:
2391 (A) intentionally, knowingly, or recklessly causes the death of another parent of the
2392 child;
2393 (B) is identified by a law enforcement agency as the primary suspect in an investigation
2394 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
2395 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
2396 recklessly causing the death of another parent of the child.
2397 (b) (i) Prima facie evidence of the finding described in Subsection (9)(a)(i) is
2398 established if:
2399 (A) a court previously adjudicated that the child suffered abuse, neglect, or dependency
2400 involving the parent; and
2401 (B) a subsequent incident of abuse, neglect, or dependency involving the parent occurs.
2402 (ii) For purposes of Subsection (9)(a)(iv), if the court finds that the parent knowingly
2403 allowed the child to be in the physical care of a person after the parent received actual notice
2404 that the person physically abused, sexually abused, or sexually exploited the child, that fact
2405 constitutes prima facie evidence that there is a substantial risk that the child will be physically
2406 abused, sexually abused, or sexually exploited.
2407 (10) (a) (i) The court shall also make a determination on the record as to whether
2408 reasonable efforts were made to prevent or eliminate the need for removal of the child from the
2409 child's home and whether there are available services that would prevent the need for continued
2410 removal.
2411 (ii) If the court finds that the child can be safely returned to the custody of the child's
2412 parent or guardian through the provision of those services, the court shall place the child with
2413 the child's parent or guardian and order that those services be provided by the division.
2414 (b) In making the determination described in Subsection (10)(a), and in ordering and
2415 providing services, the child's health, safety, and welfare shall be the paramount concern, in
2416 accordance with federal law.
2417 (11) Where the division's first contact with the family occurred during an emergency
2418 situation in which the child could not safely remain at home, the court shall make a finding that
2419 any lack of preplacement preventive efforts was appropriate.
2420 (12) In cases where actual sexual abuse, sexual exploitation, abandonment, severe
2421 abuse, or severe neglect are involved, neither the division nor the court has any duty to make
2422 "reasonable efforts" or to, in any other way, attempt to maintain a child in the child's home,
2423 return a child to the child's home, provide reunification services, or attempt to rehabilitate the
2424 offending parent or parents.
2425 (13) The court may not order continued removal of a child solely on the basis of
2426 educational neglect as [
2427 78A-6-105, truancy, or failure to comply with a court order to attend school.
2428 (14) (a) Whenever a court orders continued removal of a child under this section, the
2429 court shall state the facts on which that decision is based.
2430 (b) If no continued removal is ordered and the child is returned home, the court shall
2431 state the facts on which that decision is based.
2432 (15) If the court finds that continued removal and temporary custody are necessary for
2433 the protection of a child pursuant to Subsection (9)(a), the court shall order continued removal
2434 regardless of:
2435 (a) any error in the initial removal of the child;
2436 (b) the failure of a party to comply with notice provisions; or
2437 (c) any other procedural requirement of this chapter or Title 62A, Chapter 4a, Child
2438 and Family Services.
2439 Section 26. Section 78A-6-311.5 is enacted to read:
2440 78A-6-311.5. Placement in a qualified residential treatment program -- Review
2441 hearings.
2442 (1) "Qualified residential treatment program" means the same as that term is defined in
2443 42 U.S.C. Sec. 672.
2444 (2) Within 60 days of the date when a child is placed in a qualified residential
2445 treatment program, the court shall:
2446 (a) review the assessment;
2447 (b) review the determination and documentation made by the qualified residential
2448 treatment program regarding the child;
2449 (c) determine whether the needs of the child can be met through placement in a foster
2450 home;
2451 (d) if the child's needs cannot be met through placement in a foster home, determine
2452 whether:
2453 (i) placement of the child in a qualified residential treatment program provides the
2454 most effective and appropriate level of care for the child in the least restrictive environment;
2455 and
2456 (ii) placement in a qualified residential treatment program is consistent with the
2457 short-term and long-term goals for the child, as specified in the permanency plan for the child;
2458 and
2459 (e) approve or disapprove of the child's placement in a qualified residential treatment
2460 program.
2461 (3) As long as a child remains placed in a qualified residential treatment program, the
2462 court shall review the placement decision at each subsequent hearing held with respect to the
2463 child.
2464 (4) When the court conducts a review described in Subsection (3), the court shall
2465 review evidence submitted by the custodial division to:
2466 (a) demonstrate an ongoing assessment of the strengths and needs of the child such that
2467 the child's needs cannot be met through placement in a foster home;
2468 (b) demonstrate that placement in a qualified residential treatment program provides
2469 the most effective and appropriate level of care for the child in the least restrictive
2470 environment;
2471 (c) demonstrate that placement in the qualified residential treatment program is
2472 consistent with the short-term and long-term goals for the child, as specified by the permanency
2473 plan for the child;
2474 (d) document the specific treatment or service needs that will be met for the child in
2475 the placement;
2476 (e) document the length of time the child is expected to need the treatment or services;
2477 and
2478 (f) document the efforts made by the custodial division to prepare the child to return
2479 home or transition to another setting, such as with a relative, with a friend of the child, with a
2480 legal guardian, with an adoptive parent, a foster home, or independent living.
2481 Section 27. Section 78A-6-312 is amended to read:
2482 78A-6-312. Dispositional hearing -- Reunification services -- Exceptions.
2483 (1) The court may:
2484 (a) make any of the dispositions described in Section 78A-6-117;
2485 (b) place the minor in the custody or guardianship of any:
2486 (i) individual; or
2487 (ii) public or private entity or agency; or
2488 (c) order:
2489 (i) protective supervision;
2490 (ii) family preservation;
2491 (iii) subject to Subsections (12)(b), [
2492 and 78A-6-117(2) and Section 78A-6-301.5, medical or mental health treatment;
2493 (iv) sibling visitation; or
2494 (v) other services.
2495 (2) Whenever the court orders continued removal at the dispositional hearing, and that
2496 the minor remain in the custody of the division, the court shall first:
2497 (a) establish a primary permanency plan for the minor; and
2498 (b) determine whether, in view of the primary permanency plan, reunification services
2499 are appropriate for the minor and the minor's family, pursuant to Subsections (21) through (23).
2500 (3) Subject to Subsections (6) and (7), if the court determines that reunification
2501 services are appropriate for the minor and the minor's family, the court shall provide for
2502 reasonable parent-time with the parent or parents from whose custody the minor was removed,
2503 unless parent-time is not in the best interest of the minor.
2504 (4) In cases where obvious sexual abuse, sexual exploitation, abandonment, severe
2505 abuse, or severe neglect are involved, neither the division nor the court has any duty to make
2506 "reasonable efforts" or to, in any other way, attempt to provide reunification services, or to
2507 attempt to rehabilitate the offending parent or parents.
2508 (5) In all cases, the minor's health, safety, and welfare shall be the court's paramount
2509 concern in determining whether reasonable efforts to reunify should be made.
2510 (6) For purposes of Subsection (3), parent-time is in the best interests of a minor unless
2511 the court makes a finding that it is necessary to deny parent-time in order to:
2512 (a) protect the physical safety of the minor;
2513 (b) protect the life of the minor; or
2514 (c) prevent the minor from being traumatized by contact with the parent due to the
2515 minor's fear of the parent in light of the nature of the alleged abuse or neglect.
2516 (7) Notwithstanding Subsection (3), a court may not deny parent-time based solely on a
2517 parent's failure to:
2518 (a) prove that the parent has not used legal or illegal substances; or
2519 (b) comply with an aspect of the child and family plan that is ordered by the court.
2520 (8) (a) In addition to the primary permanency plan, the court shall establish a
2521 concurrent permanency plan that shall include:
2522 (i) a representative list of the conditions under which the primary permanency plan will
2523 be abandoned in favor of the concurrent permanency plan; and
2524 (ii) an explanation of the effect of abandoning or modifying the primary permanency
2525 plan.
2526 (b) In determining the primary permanency plan and concurrent permanency plan, the
2527 court shall consider:
2528 (i) the preference for kinship placement over nonkinship placement;
2529 (ii) the potential for a guardianship placement if the parent-child relationship is legally
2530 terminated and no appropriate adoption placement is available; and
2531 (iii) the use of an individualized permanency plan, only as a last resort.
2532 (9) A permanency hearing shall be conducted in accordance with Subsection
2533 78A-6-314(1)(b) within 30 days after the day on which the dispositional hearing ends if
2534 something other than reunification is initially established as a minor's primary permanency
2535 plan.
2536 (10) (a) The court may amend a minor's primary permanency plan before the
2537 establishment of a final permanency plan under Section 78A-6-314.
2538 (b) The court is not limited to the terms of the concurrent permanency plan in the event
2539 that the primary permanency plan is abandoned.
2540 (c) If, at any time, the court determines that reunification is no longer a minor's primary
2541 permanency plan, the court shall conduct a permanency hearing in accordance with Section
2542 78A-6-314 on or before the earlier of:
2543 (i) 30 days after the day on which the court makes the determination described in this
2544 Subsection (10)(c); or
2545 (ii) the day on which the provision of reunification services, described in Section
2546 78A-6-314, ends.
2547 (11) (a) If the court determines that reunification services are appropriate, the court
2548 shall order that the division make reasonable efforts to provide services to the minor and the
2549 minor's parent for the purpose of facilitating reunification of the family, for a specified period
2550 of time.
2551 (b) In providing the services described in Subsection (11)(a), the minor's health, safety,
2552 and welfare shall be the division's paramount concern, and the court shall so order.
2553 (12) (a) The court shall:
2554 (i) determine whether the services offered or provided by the division under the child
2555 and family plan constitute "reasonable efforts" on the part of the division;
2556 (ii) determine and define the responsibilities of the parent under the child and family
2557 plan in accordance with Subsection 62A-4a-205(6)(e); and
2558 (iii) identify verbally on the record, or in a written document provided to the parties,
2559 the responsibilities described in Subsection (12)(a)(ii), for the purpose of assisting in any future
2560 determination regarding the provision of reasonable efforts, in accordance with state and
2561 federal law.
2562 (b) If the parent is in a substance use disorder treatment program, other than a certified
2563 drug court program:
2564 (i) the court may order the parent to submit to supplementary drug or alcohol testing in
2565 addition to the testing recommended by the parent's substance use disorder program based on a
2566 finding of reasonable suspicion that the parent is abusing drugs or alcohol; and
2567 (ii) the court may order the parent to provide the results of drug or alcohol testing
2568 recommended by the substance use disorder program to the court or division.
2569 (13) (a) The time period for reunification services may not exceed 12 months from the
2570 date that the minor was initially removed from the minor's home, unless the time period is
2571 extended under Subsection 78A-6-314(7).
2572 (b) Nothing in this section may be construed to entitle any parent to an entire 12
2573 months of reunification services.
2574 (14) (a) If reunification services are ordered, the court may terminate those services at
2575 any time.
2576 (b) If, at any time, continuation of reasonable efforts to reunify a minor is determined
2577 to be inconsistent with the final permanency plan for the minor established pursuant to Section
2578 78A-6-314, then measures shall be taken, in a timely manner, to:
2579 (i) place the minor in accordance with the permanency plan; and
2580 (ii) complete whatever steps are necessary to finalize the permanent placement of the
2581 minor.
2582 (15) Any physical custody of the minor by the parent or a relative during the period
2583 described in Subsections (11) through (14) does not interrupt the running of the period.
2584 (16) (a) If reunification services are ordered, a permanency hearing shall be conducted
2585 by the court in accordance with Section 78A-6-314 at the expiration of the time period for
2586 reunification services.
2587 (b) The permanency hearing shall be held no later than 12 months after the original
2588 removal of the minor.
2589 (c) If reunification services are not ordered, a permanency hearing shall be conducted
2590 within 30 days, in accordance with Section 78A-6-314.
2591 (17) With regard to a minor in the custody of the division whose parent or parents are
2592 ordered to receive reunification services but who have abandoned that minor for a period of six
2593 months from the date that reunification services were ordered:
2594 (a) the court shall terminate reunification services; and
2595 (b) the division shall petition the court for termination of parental rights.
2596 (18) When a court conducts a permanency hearing for a minor under Section
2597 78A-6-314, the court shall attempt to keep the minor's sibling group together if keeping the
2598 sibling group together is:
2599 (a) practicable; and
2600 (b) in accordance with the best interest of the minor.
2601 (19) When a child is under the custody of the division and has been separated from a
2602 sibling due to foster care or adoptive placement, a court may order sibling visitation, subject to
2603 the division obtaining consent from the sibling's legal guardian, according to the court's
2604 determination of the best interests of the child for whom the hearing is held.
2605 (20) (a) Because of the state's interest in and responsibility to protect and provide
2606 permanency for minors who are abused, neglected, or dependent, the Legislature finds that a
2607 parent's interest in receiving reunification services is limited.
2608 (b) The court may determine that:
2609 (i) efforts to reunify a minor with the minor's family are not reasonable or appropriate,
2610 based on the individual circumstances; and
2611 (ii) reunification services should not be provided.
2612 (c) In determining "reasonable efforts" to be made with respect to a minor, and in
2613 making "reasonable efforts," the minor's health, safety, and welfare shall be the paramount
2614 concern.
2615 (21) There is a presumption that reunification services should not be provided to a
2616 parent if the court finds, by clear and convincing evidence, that any of the following
2617 circumstances exist:
2618 (a) the whereabouts of the parents are unknown, based upon a verified affidavit
2619 indicating that a reasonably diligent search has failed to locate the parent;
2620 (b) subject to Subsection (22)(a), the parent is suffering from a mental illness of such
2621 magnitude that it renders the parent incapable of utilizing reunification services;
2622 (c) the minor was previously adjudicated as an abused child due to physical abuse,
2623 sexual abuse, or sexual exploitation, and following the adjudication the minor:
2624 (i) was removed from the custody of the minor's parent;
2625 (ii) was subsequently returned to the custody of the parent; and
2626 (iii) is being removed due to additional physical abuse, sexual abuse, or sexual
2627 exploitation;
2628 (d) the parent:
2629 (i) caused the death of another minor through abuse or neglect;
2630 (ii) committed, aided, abetted, attempted, conspired, or solicited to commit:
2631 (A) murder or manslaughter of a child; or
2632 (B) child abuse homicide;
2633 (iii) committed sexual abuse against the child;
2634 (iv) is a registered sex offender or required to register as a sex offender; or
2635 (v) (A) intentionally, knowingly, or recklessly causes the death of another parent of the
2636 child;
2637 (B) is identified by a law enforcement agency as the primary suspect in an investigation
2638 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
2639 (C) is being prosecuted for or has been convicted of intentionally, knowingly, or
2640 recklessly causing the death of another parent of the child;
2641 (e) the minor suffered severe abuse by the parent or by any person known by the
2642 parent, if the parent knew or reasonably should have known that the person was abusing the
2643 minor;
2644 (f) the minor is adjudicated an abused child as a result of severe abuse by the parent,
2645 and the court finds that it would not benefit the minor to pursue reunification services with the
2646 offending parent;
2647 (g) (i) the parent's rights are involuntarily terminated with regard to any other minor; or
2648 (ii) the parent's rights are voluntarily terminated with regard to any other minor after a
2649 petition for the termination of that parent's parental rights was filed;
2650 (h) the minor was removed from the minor's home on at least two previous occasions
2651 and reunification services were offered or provided to the family at those times;
2652 (i) the parent has abandoned the minor for a period of six months or longer;
2653 (j) the parent permitted the child to reside, on a permanent or temporary basis, at a
2654 location where the parent knew or should have known that a clandestine laboratory operation
2655 was located;
2656 (k) except as provided in Subsection (22)(b), with respect to a parent who is the child's
2657 birth mother, the child has fetal alcohol syndrome, fetal alcohol spectrum disorder, or was
2658 exposed to an illegal or prescription drug that was abused by the child's mother while the child
2659 was in utero, if the child was taken into division custody for that reason, unless the mother
2660 agrees to enroll in, is currently enrolled in, or has recently and successfully completed a
2661 substance use disorder treatment program approved by the department; or
2662 (l) any other circumstance that the court determines should preclude reunification
2663 efforts or services.
2664 (22) (a) The finding under Subsection (21)(b) shall be based on competent evidence
2665 from at least two medical or mental health professionals, who are not associates, establishing
2666 that, even with the provision of services, the parent is not likely to be capable of adequately
2667 caring for the minor within 12 months after the day on which the court finding is made.
2668 (b) A judge may disregard the provisions of Subsection (21)(k) if the court finds, under
2669 the circumstances of the case, that the substance use disorder treatment described in Subsection
2670 (21)(k) is not warranted.
2671 (23) In determining whether reunification services are appropriate, the court shall take
2672 into consideration:
2673 (a) failure of the parent to respond to previous services or comply with a previous child
2674 and family plan;
2675 (b) the fact that the minor was abused while the parent was under the influence of
2676 drugs or alcohol;
2677 (c) any history of violent behavior directed at the child or an immediate family
2678 member;
2679 (d) whether a parent continues to live with an individual who abused the minor;
2680 (e) any patterns of the parent's behavior that have exposed the minor to repeated abuse;
2681 (f) testimony by a competent professional that the parent's behavior is unlikely to be
2682 successful; and
2683 (g) whether the parent has expressed an interest in reunification with the minor.
2684 (24) (a) If reunification services are not ordered pursuant to Subsections (20) through
2685 (22), and the whereabouts of a parent become known within six months after the day on which
2686 the out-of-home placement of the minor is made, the court may order the division to provide
2687 reunification services.
2688 (b) The time limits described in Subsections (2) through (18) are not tolled by the
2689 parent's absence.
2690 (25) (a) If a parent is incarcerated or institutionalized, the court shall order reasonable
2691 services unless the court determines that those services would be detrimental to the minor.
2692 (b) In making the determination described in Subsection (25)(a), the court shall
2693 consider:
2694 (i) the age of the minor;
2695 (ii) the degree of parent-child bonding;
2696 (iii) the length of the sentence;
2697 (iv) the nature of the treatment;
2698 (v) the nature of the crime or illness;
2699 (vi) the degree of detriment to the minor if services are not offered;
2700 (vii) for a minor 10 years old or older, the minor's attitude toward the implementation
2701 of family reunification services; and
2702 (viii) any other appropriate factors.
2703 (c) Reunification services for an incarcerated parent are subject to the time limitations
2704 imposed in Subsections (2) through (18).
2705 (d) Reunification services for an institutionalized parent are subject to the time
2706 limitations imposed in Subsections (2) through (18), unless the court determines that continued
2707 reunification services would be in the minor's best interest.
2708 (26) If, pursuant to Subsections (21)(b) through (l), the court does not order
2709 reunification services, a permanency hearing shall be conducted within 30 days, in accordance
2710 with Section 78A-6-314.
2711 Section 28. Section 78A-6-317 is amended to read:
2712 78A-6-317. All proceedings -- Persons entitled to be present -- Legal
2713 representation -- Records sharing.
2714 (1) A child who is the subject of a juvenile court hearing, any person entitled to notice
2715 pursuant to Section 78A-6-306 or 78A-6-310, preadoptive parents, foster parents, and any
2716 relative providing care for the child, are:
2717 (a) entitled to notice of, and to be present at, each hearing and proceeding held under
2718 this part, including administrative reviews; and
2719 (b) have a right to be heard at each hearing and proceeding described in Subsection
2720 (1)(a).
2721 (2) A child shall be represented at each hearing by the guardian ad litem appointed to
2722 the child's case by the court. The child has a right to be present at each hearing, subject to the
2723 discretion of the guardian ad litem or the court regarding any possible detriment to the child.
2724 (3) (a) The parent or guardian of a child who is the subject of a petition under this part
2725 has the right to be represented by counsel, and to present evidence, at each hearing.
2726 (b) When it appears to the court that a parent or guardian of the child desires counsel
2727 but is financially unable to afford and cannot for that reason employ counsel, the court shall
2728 appoint counsel as provided in Section 78A-6-1111.
2729 (4) In every abuse, neglect, or dependency proceeding under this chapter, the court
2730 shall order that the child be represented by a guardian ad litem, in accordance with Section
2731 78A-6-902. The guardian ad litem shall represent the best interest of the child, in accordance
2732 with the requirements of that section, at the shelter hearing and at all subsequent court and
2733 administrative proceedings, including any proceeding for termination of parental rights in
2734 accordance with Part 5, Termination of Parental Rights Act.
2735 (5) (a) Except as provided in Subsection (5)(b), and notwithstanding any other
2736 provision of law:
2737 (i) counsel for all parties to the action shall be given access to all records, maintained
2738 by the division or any other state or local public agency, that are relevant to the abuse, neglect,
2739 or dependency proceeding under this chapter; and
2740 (ii) if the natural parent of a child is not represented by counsel, the natural parent shall
2741 have access to the records described in Subsection (5)(a)(i).
2742 (b) The disclosures described in Subsection (5)(a) are not required in the following
2743 circumstances:
2744 (i) subject to Subsection (5)(c), the division or other state or local public agency did not
2745 originally create the record being requested;
2746 (ii) disclosure of the record would jeopardize the life or physical safety of a child who
2747 has been a victim of abuse or neglect, or any person who provided substitute care for the child;
2748 (iii) disclosure of the record would jeopardize the anonymity of the person or persons
2749 making the initial report of abuse or neglect or any others involved in the subsequent
2750 investigation;
2751 (iv) disclosure of the record would jeopardize the life or physical safety of [
2752 an individual who has been a victim of domestic violence;
2753 (v) the record is a report maintained in the Management Information System, for which
2754 a finding of unsubstantiated, unsupported, or without merit has been made, unless the person
2755 requesting the information is the alleged perpetrator in the report or counsel for the alleged
2756 perpetrator in the report; or
2757 (vi) the record is a Children's Justice Center interview, including a video or audio
2758 recording, and a transcript of the recording, the release of which is governed by Section
2759 77-37-4.
2760 (c) If a disclosure is denied under Subsection (5)(b)(i), the division shall inform the
2761 person making the request of the following:
2762 (i) the existence of all records in the possession of the division or any other state or
2763 local public agency;
2764 (ii) the name and address of the person or agency that originally created the record; and
2765 (iii) that the requesting person must seek access to the record from the person or
2766 agency that originally created the record.
2767 Section 29. Section 78A-6-902 is amended to read:
2768 78A-6-902. Appointment of attorney guardian ad litem -- Duties and
2769 responsibilities -- Training -- Trained staff and court-appointed special advocate
2770 volunteers -- Costs -- Immunity -- Annual report.
2771 (1) (a) The court:
2772 (i) may appoint an attorney guardian ad litem to represent the best interest of a minor
2773 involved in any case before the court; and
2774 (ii) shall consider the best interest of a minor, consistent with the provisions of Section
2775 62A-4a-201, in determining whether to appoint a guardian ad litem.
2776 (b) In all cases where an attorney guardian ad litem is appointed, the court shall make a
2777 finding that establishes the necessity of the appointment.
2778 (2) An attorney guardian ad litem shall represent the best interest of each child who
2779 may become the subject of a petition alleging abuse, neglect, or dependency, from the earlier of
2780 the day that:
2781 (a) the child is removed from the child's home by the division; or
2782 (b) the petition is filed.
2783 (3) The director shall ensure that each attorney guardian ad litem employed by the
2784 office:
2785 (a) represents the best interest of each client of the office in all venues, including:
2786 (i) court proceedings; and
2787 (ii) meetings to develop, review, or modify the child and family plan with the Division
2788 of Child and Family Services in accordance with Section 62A-4a-205;
2789 (b) prior to representing any minor before the court, be trained in:
2790 (i) applicable statutory, regulatory, and case law; and
2791 (ii) nationally recognized standards for an attorney guardian ad litem;
2792 (c) conducts or supervises an ongoing, independent investigation in order to obtain,
2793 first-hand, a clear understanding of the situation and needs of the minor;
2794 (d) (i) personally meets with the minor, unless:
2795 (A) the minor is outside of the state; or
2796 (B) meeting with the minor would be detrimental to the minor;
2797 (ii) personally interviews the minor, unless:
2798 (A) the minor is not old enough to communicate;
2799 (B) the minor lacks the capacity to participate in a meaningful interview; or
2800 (C) the interview would be detrimental to the minor; and
2801 (iii) if the minor is placed in an out-of-home placement, or is being considered for
2802 placement in an out-of-home placement, unless it would be detrimental to the minor:
2803 (A) to the extent possible, determines the minor's goals and concerns regarding
2804 placement; and
2805 (B) personally assesses or supervises an assessment of the appropriateness and safety
2806 of the minor's environment in each placement;
2807 (e) personally attends all review hearings pertaining to the minor's case;
2808 (f) participates in all appeals, unless excused by order of the court;
2809 (g) is familiar with local experts who can provide consultation and testimony regarding
2810 the reasonableness and appropriateness of efforts made by the Division of Child and Family
2811 Services to:
2812 (i) maintain a minor in the minor's home; or
2813 (ii) reunify a child with the child's parent;
2814 (h) to the extent possible, and unless it would be detrimental to the minor, personally
2815 or through a trained volunteer, paralegal, or other trained staff, keeps the minor advised of:
2816 (i) the status of the minor's case;
2817 (ii) all court and administrative proceedings;
2818 (iii) discussions with, and proposals made by, other parties;
2819 (iv) court action; and
2820 (v) the psychiatric, medical, or other treatment or diagnostic services that are to be
2821 provided to the minor;
2822 (i) in cases where a child and family plan is required, personally or through a trained
2823 volunteer, paralegal, or other trained staff, monitors implementation of a minor's child and
2824 family plan and any dispositional orders to:
2825 (i) determine whether services ordered by the court:
2826 (A) are actually provided; and
2827 (B) are provided in a timely manner; and
2828 (ii) attempt to assess whether services ordered by the court are accomplishing the
2829 intended goal of the services; and
2830 (j) makes all necessary court filings to advance the guardian ad litem's position
2831 regarding the best interest of the child.
2832 (4) (a) Consistent with this Subsection (4), an attorney guardian ad litem may use
2833 trained volunteers, in accordance with Title 67, Chapter 20, Volunteer Government Workers
2834 Act, trained paralegals, and other trained staff to assist in investigation and preparation of
2835 information regarding the cases of individual minors before the court.
2836 (b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained
2837 in and follow, at a minimum, the guidelines established by the United States Department of
2838 Justice Court Appointed Special Advocate Association.
2839 (5) The attorney guardian ad litem shall continue to represent the best interest of the
2840 minor until released from that duty by the court.
2841 (6) (a) Consistent with Subsection (6)(b), the juvenile court is responsible for:
2842 (i) all costs resulting from the appointment of an attorney guardian ad litem; and
2843 (ii) the costs of volunteer, paralegal, and other staff appointment and training.
2844 (b) The court shall use funds appropriated by the Legislature for the guardian ad litem
2845 program to cover the costs described in Subsection (6)(a).
2846 (c) (i) When the court appoints an attorney guardian ad litem under this section, the
2847 court may assess all or part of the attorney fees, court costs, and paralegal, staff, and volunteer
2848 expenses against the child's parents, parent, or legal guardian in a proportion that the court
2849 determines to be just and appropriate, taking into consideration costs already borne by the
2850 parents, parent, or legal guardian, including:
2851 (A) private attorney fees;
2852 (B) counseling for the child;
2853 (C) counseling for the parent, if mandated by the court or recommended by the
2854 Division of Child and Family Services; and
2855 (D) any other cost the court determines to be relevant.
2856 (ii) The court may not assess those fees or costs against:
2857 (A) a legal guardian, when that guardian is the state; or
2858 (B) consistent with Subsection (6)(d), a parent who is found to be impecunious.
2859 (d) For purposes of Subsection (6)(c)(ii)(B), if a person claims to be impecunious, the
2860 court shall:
2861 (i) require that person to submit an affidavit of impecuniosity as provided in Section
2862 78A-2-302; and
2863 (ii) follow the procedures and make the determinations as provided in Section
2864 78A-2-304.
2865 (e) The child's parents, parent, or legal guardian may appeal the court's determination,
2866 under Subsection (6)(c), of fees, costs, and expenses.
2867 (7) An attorney guardian ad litem appointed under this section, when serving in the
2868 scope of the attorney guardian ad litem's duties as guardian ad litem is considered an employee
2869 of the state for purposes of indemnification under Title 63G, Chapter 7, Governmental
2870 Immunity Act of Utah.
2871 (8) (a) An attorney guardian ad litem shall represent the best interest of a minor.
2872 (b) If the minor's wishes differ from the attorney's determination of the minor's best
2873 interest, the attorney guardian ad litem shall communicate the minor's wishes to the court in
2874 addition to presenting the attorney's determination of the minor's best interest.
2875 (c) A difference between the minor's wishes and the attorney's determination of best
2876 interest may not be considered a conflict of interest for the attorney.
2877 (d) The guardian ad litem shall disclose the wishes of the child unless the child:
2878 (i) instructs the guardian ad litem to not disclose the child's wishes; or
2879 (ii) has not expressed any wishes.
2880 (e) The court may appoint one attorney guardian ad litem to represent the best interests
2881 of more than one child of a marriage.
2882 (9) An attorney guardian ad litem shall be provided access to all Division of Child and
2883 Family Services records regarding the minor at issue and the minor's family.
2884 (10) (a) An attorney guardian ad litem shall conduct an independent investigation
2885 regarding the minor at issue, the minor's family, and what constitutes the best interest of the
2886 minor.
2887 (b) An attorney guardian ad litem may interview the minor's Division of Child and
2888 Family Services caseworker, but may not:
2889 (i) rely exclusively on the conclusions and findings of the Division of Child and Family
2890 Services; or
2891 (ii) except as provided in Subsection (10)(c), conduct a visit with the client in
2892 conjunction with the visit of a Division of Child and Family Services caseworker.
2893 (c) [
2894 court hearing, or similar venue when a Division of Child and Family Services caseworker is
2895 present for a purpose other than the attorney guardian ad litem's [
2896 (d) Notwithstanding Subsections (10)(a) through (c), an attorney guardian ad litem may
2897 not meet with a client in the presence of a parent or guardian who is represented by legal
2898 counsel, unless:
2899 (i) the parent's or guardian's legal counsel is also present; or
2900 (ii) the parent or guardian waives the right to have legal counsel present.
2901 (11) (a) An attorney guardian ad litem shall maintain current and accurate records
2902 regarding:
2903 (i) the number of times the attorney has had contact with each minor; and
2904 (ii) the actions the attorney has taken in representation of the minor's best interest.
2905 (b) In every hearing where the attorney guardian ad litem makes a recommendation
2906 regarding the best interest of the child, the court shall require the attorney guardian ad litem to
2907 disclose the factors that form the basis of the recommendation.
2908 (12) (a) Except as provided in Subsection (12)(b), all records of an attorney guardian
2909 ad litem are confidential and may not be released or made public upon subpoena, search
2910 warrant, discovery proceedings, or otherwise. This subsection supersedes Title 63G, Chapter
2911 2, Government Records Access and Management Act.
2912 (b) Consistent with Subsection (12)(d), all records of an attorney guardian ad litem:
2913 (i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative
2914 Subpoena Powers; and
2915 (ii) shall be released to the Legislature.
2916 (c) (i) Except as provided in Subsection (12)(c)(ii), records released in accordance with
2917 Subsection (12)(b) shall be maintained as confidential by the Legislature.
2918 (ii) Notwithstanding Subsection (12)(c)(i), the Office of the Legislative Auditor
2919 General may include summary data and nonidentifying information in its audits and reports to
2920 the Legislature.
2921 (d) (i) Subsection (12)(b) constitutes an exception to Rules of Professional Conduct,
2922 Rule 1.6, as provided by Rule 1.6(b)(4), because of:
2923 (A) the unique role of an attorney guardian ad litem described in Subsection (8); and
2924 (B) the state's role and responsibility:
2925 (I) to provide a guardian ad litem program; and
2926 (II) as parens patriae, to protect minors.
2927 (ii) A claim of attorney-client privilege does not bar access to the records of an attorney
2928 guardian ad litem by the Legislature, through legislative subpoena.
2929 Section 30. Section 78A-6-1103 is amended to read:
2930 78A-6-1103. Modification or termination of custody order or decree -- Grounds --
2931 Procedure.
2932 (1) A parent or guardian of any child whose legal custody has been transferred by the
2933 court to an individual, agency, or institution, except a secure youth corrections facility, may
2934 petition the court for restoration of custody or other modification or revocation of the court's
2935 order, on the ground that a change of circumstances has occurred which requires such
2936 modification or revocation in the best interest of the child or the public.
2937 (2) The court shall make a preliminary investigation. If the court finds that the alleged
2938 change of circumstances, if proved, would not affect the decree, it may dismiss the petition. If
2939 the court finds that a further examination of the facts is needed, or if the court on its own
2940 motion determines that the decree should be reviewed, it shall conduct a hearing. Notice shall
2941 be given to all persons concerned. At the hearing, the court may enter an order continuing,
2942 modifying, or terminating the decree.
2943 (3) (a) A parent may not file a petition under this section after the parent's parental
2944 rights have been terminated in accordance with Part 5, Termination of Parental Rights Act.
2945 (b) A parent may not file a petition for restoration of custody under this section during
2946 the existence of a permanent guardianship established for the child under Subsection
2947 78A-6-117(2)[
2948 (4) An individual, agency, or institution vested with legal custody of a child may
2949 petition the court for a modification of the custody order on the ground that the change is
2950 necessary for the welfare of the child or in the public interest. The court shall proceed upon the
2951 petition in accordance with Subsections (1) and (2).
2952 Section 31. Section 78A-6-1302 is amended to read:
2953 78A-6-1302. Procedure -- Standard.
2954 (1) When a motion is filed pursuant to Section 78A-6-1301 raising the issue of a
2955 minor's competency to proceed, or when the court raises the issue of a minor's competency to
2956 proceed, the juvenile court in which proceedings are pending shall stay all delinquency
2957 proceedings.
2958 (2) If a motion for inquiry is opposed by either party, the court shall, prior to granting
2959 or denying the motion, hold a limited hearing solely for the purpose of determining the
2960 sufficiency of the motion. If the court finds that the allegations of incompetency raise a bona
2961 fide doubt as to the minor's competency to proceed, it shall enter an order for an evaluation of
2962 the minor's competency to proceed, and shall set a date for a hearing on the issue of the minor's
2963 competency.
2964 (3) After the granting of a motion, and prior to a full competency hearing, the court
2965 may order the Department of Human Services to evaluate the minor and to report to the court
2966 concerning the minor's mental condition.
2967 (4) The minor shall be evaluated by a mental health examiner with experience in
2968 juvenile forensic evaluations and juvenile brain development, who is not involved in the
2969 current treatment of the minor. If it becomes apparent that the minor may be not competent
2970 due to an intellectual disability or related condition, the examiner shall be experienced in
2971 intellectual disability or related condition evaluations of minors.
2972 (5) The petitioner or other party, as directed by the court, shall provide all information
2973 and materials to the examiners relevant to a determination of the minor's competency
2974 including:
2975 (a) the motion;
2976 (b) the arrest or incident reports pertaining to the charged offense;
2977 (c) the minor's known delinquency history information;
2978 (d) known prior mental health evaluations and treatments; and
2979 (e) consistent with 20 U.S.C. Sec. 1232g (b)(1)(E)(ii)(I), records pertaining to the
2980 minor's education.
2981 (6) The minor's parents or guardian, the prosecutor, defense attorney, and guardian ad
2982 litem, shall cooperate in providing the relevant information and materials to the examiners.
2983 (7) In conducting the evaluation and in the report determining if a minor is competent
2984 to proceed as defined in [
2985 consider the impact of a mental disorder, intellectual disability, or related condition on a
2986 minor's present capacity to:
2987 (a) comprehend and appreciate the charges or allegations;
2988 (b) disclose to counsel pertinent facts, events, or states of mind;
2989 (c) comprehend and appreciate the range and nature of possible penalties, if applicable,
2990 that may be imposed in the proceedings against the minor;
2991 (d) engage in reasoned choice of legal strategies and options;
2992 (e) understand the adversarial nature of the proceedings;
2993 (f) manifest appropriate courtroom behavior; and
2994 (g) testify relevantly, if applicable.
2995 (8) In addition to the requirements of Subsection (7), the examiner's written report
2996 shall:
2997 (a) identify the specific matters referred for evaluation;
2998 (b) describe the procedures, techniques, and tests used in the evaluation and the
2999 purpose or purposes for each;
3000 (c) state the examiner's clinical observations, findings, and opinions on each issue
3001 referred for evaluation by the court, and indicate specifically those issues, if any, on which the
3002 examiner could not give an opinion;
3003 (d) state the likelihood that the minor will attain competency and the amount of time
3004 estimated to achieve it; and
3005 (e) identify the sources of information used by the examiner and present the basis for
3006 the examiner's clinical findings and opinions.
3007 (9) The examiner shall provide an initial report to the court, the prosecuting and
3008 defense attorneys, and the guardian ad litem, if applicable, within 30 days of the receipt of the
3009 court's order. If the examiner informs the court that additional time is needed, the court may
3010 grant, taking into consideration the custody status of the minor, up to an additional 30 days to
3011 provide the report to the court and counsel. The examiner must provide the report within 60
3012 days from the receipt of the court's order unless, for good cause shown, the court authorizes an
3013 additional period of time to complete the evaluation and provide the report. The report shall
3014 inform the court of the examiner's opinion concerning the competency and the likelihood of the
3015 minor to attain competency within a year. In the alternative, the examiner may inform the court
3016 in writing that additional time is needed to complete the report.
3017 (10) Any statement made by the minor in the course of any competency evaluation,
3018 whether the evaluation is with or without the consent of the minor, any testimony by the
3019 examiner based upon any statement, and any other fruits of the statement may not be admitted
3020 in evidence against the minor in any delinquency or criminal proceeding except on an issue
3021 respecting the mental condition on which the minor has introduced evidence. The evidence
3022 may be admitted, however, where relevant to a determination of the minor's competency.
3023 (11) Before evaluating the minor, examiners shall specifically advise the minor and the
3024 parents or guardian of the limits of confidentiality as provided under Subsection (10).
3025 (12) When the report is received the court shall set a date for a competency hearing that
3026 shall be held in not less than five and not more than 15 days, unless the court enlarges the time
3027 for good cause.
3028 (13) A minor shall be presumed competent unless the court, by a preponderance of the
3029 evidence, finds the minor not competent to proceed. The burden of proof is upon the
3030 proponent of incompetency to proceed.
3031 (14) (a) Following the hearing, the court shall determine by a preponderance of
3032 evidence whether the minor is:
3033 (i) competent to proceed;
3034 (ii) not competent to proceed with a substantial probability that the minor may attain
3035 competency in the foreseeable future; or
3036 (iii) not competent to proceed without a substantial probability that the minor may
3037 attain competency in the foreseeable future.
3038 (b) If the court enters a finding pursuant to Subsection (14)(a)(i), the court shall
3039 proceed with the delinquency proceedings.
3040 (c) If the court enters a finding pursuant to Subsection (14)(a)(ii), the court shall
3041 proceed consistent with Section 78A-6-1303.
3042 (d) If the court enters a finding pursuant to Subsection (14)(a)(iii), the court shall
3043 terminate the competency proceeding, dismiss the delinquency charges without prejudice, and
3044 release the minor from any custody order related to the pending delinquency proceeding, unless
3045 the prosecutor informs the court that commitment proceedings pursuant to Title 62A, Chapter
3046 5, Services for People with Disabilities, or Title 62A, Chapter 15, Substance Abuse and Mental
3047 Health Act, will be initiated. These commitment proceedings shall be initiated within seven
3048 days after the court's order, unless the court enlarges the time for good cause shown. The
3049 minor may be ordered to remain in custody until the commitment proceedings have been
3050 concluded.
3051 (15) If the court finds the minor not competent to proceed, its order shall contain
3052 findings addressing each of the factors in Subsection (7).
3053 Section 32. Section 78B-6-102 is amended to read:
3054 78B-6-102. Legislative intent and findings -- Best interest of child -- Interests of
3055 each party.
3056 (1) It is the intent and desire of the Legislature that in every adoption the best interest
3057 of the child should govern and be of foremost concern in the court's determination.
3058 (2) The court shall make a specific finding regarding the best interest of the child,
3059 taking into consideration information provided to the court pursuant to the requirements of this
3060 chapter relating to the health, safety, and welfare of the child and the moral climate of the
3061 potential adoptive placement.
3062 (3) The Legislature finds that the rights and interests of all parties affected by an
3063 adoption proceeding must be considered and balanced in determining what constitutional
3064 protections and processes are necessary and appropriate.
3065 [
3066
3067
3068
3069 [
3070 (a) the state has a compelling interest in providing stable and permanent homes for
3071 adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and
3072 in holding parents accountable for meeting the needs of children;
3073 (b) an unmarried mother, faced with the responsibility of making crucial decisions
3074 about the future of a newborn child, is entitled to privacy, and has the right to make timely and
3075 appropriate decisions regarding her future and the future of the child, and is entitled to
3076 assurance regarding the permanence of an adoptive placement;
3077 (c) adoptive children have a right to permanence and stability in adoptive placements;
3078 (d) adoptive parents have a constitutionally protected liberty and privacy interest in
3079 retaining custody of an adopted child;
3080 (e) an unmarried biological father has an inchoate interest that acquires constitutional
3081 protection only when he demonstrates a timely and full commitment to the responsibilities of
3082 parenthood, both during pregnancy and upon the child's birth; and
3083 (f) the state has a compelling interest in requiring unmarried biological fathers to
3084 demonstrate commitment by providing appropriate medical care and financial support and by
3085 establishing legal paternity, in accordance with the requirements of this chapter.
3086 [
3087 determining whether an unmarried biological father's action is sufficiently prompt and
3088 substantial to require constitutional protection.
3089 (b) If an unmarried biological father fails to grasp the opportunities to establish a
3090 relationship with his child that are available to him, his biological parental interest may be lost
3091 entirely, or greatly diminished in constitutional significance by his failure to timely exercise it,
3092 or by his failure to strictly comply with the available legal steps to substantiate it.
3093 (c) A certain degree of finality is necessary in order to facilitate the state's compelling
3094 interest. The Legislature finds that the interests of the state, the mother, the child, and the
3095 adoptive parents described in this section outweigh the interest of an unmarried biological
3096 father who does not timely grasp the opportunity to establish and demonstrate a relationship
3097 with his child in accordance with the requirements of this chapter.
3098 (d) The Legislature finds no practical way to remove all risk of fraud or
3099 misrepresentation in adoption proceedings, and has provided a method for absolute protection
3100 of an unmarried biological father's rights by compliance with the provisions of this chapter. In
3101 balancing the rights and interests of the state, and of all parties affected by fraud, specifically
3102 the child, the adoptive parents, and the unmarried biological father, the Legislature has
3103 determined that the unmarried biological father is in the best position to prevent or ameliorate
3104 the effects of fraud and that, therefore, the burden of fraud shall be borne by him.
3105 (e) An unmarried biological father has the primary responsibility to protect his rights.
3106 (f) An unmarried biological father is presumed to know that the child may be adopted
3107 without his consent unless he strictly complies with the provisions of this chapter, manifests a
3108 prompt and full commitment to his parental responsibilities, and establishes paternity.
3109 [
3110 regard to her pregnancy and adoption plan, and therefore has no legal obligation to disclose the
3111 identity of an unmarried biological father prior to or during an adoption proceeding, and has no
3112 obligation to volunteer information to the court with respect to the father.
3113 Section 33. Section 78B-6-103 is amended to read:
3114 78B-6-103. Definitions.
3115 As used in this part:
3116 (1) "Adoptee" means a person who:
3117 (a) is the subject of an adoption proceeding; or
3118 (b) has been legally adopted.
3119 (2) "Adoption" means the judicial act that:
3120 (a) creates the relationship of parent and child where it did not previously exist; and
3121 (b) except as provided in Subsections 78B-6-138(2) and (4), terminates the parental
3122 rights of any other person with respect to the child.
3123 (3) "Adoption document" means an adoption-related document filed with the office, a
3124 petition for adoption, a decree of adoption, an original birth certificate, or evidence submitted
3125 in support of a supplementary birth certificate.
3126 (4) "Adoption service provider" means:
3127 (a) a child-placing agency;
3128 (b) a licensed counselor who has at least one year of experience providing professional
3129 social work services to:
3130 (i) adoptive parents;
3131 (ii) prospective adoptive parents; or
3132 (iii) birth parents; or
3133 (c) the Office of Licensing within the Department of Human Services.
3134 (5) "Adoptive parent" means an individual who has legally adopted an adoptee.
3135 (6) "Adult" means an individual who is 18 years of age or older.
3136 (7) "Adult adoptee" means an adoptee who is 18 years of age or older and was adopted
3137 as a minor.
3138 (8) "Adult sibling" means an adoptee's brother or sister, who is 18 years of age or older
3139 and whose birth mother or father is the same as that of the adoptee.
3140 (9) "Birth mother" means the biological mother of a child.
3141 (10) "Birth parent" means:
3142 (a) a birth mother;
3143 (b) a man whose paternity of a child is established;
3144 (c) a man who:
3145 (i) has been identified as the father of a child by the child's birth mother; and
3146 (ii) has not denied paternity; or
3147 (d) an unmarried biological father.
3148 (11) "Child-placing agency" means an agency licensed to place children for adoption
3149 under Title 62A, Chapter 4a, Part 6, Child Placing.
3150 [
3151
3152 [
3153 Department of Human Services, created in Section 62A-4a-103.
3154 [
3155 place children for adoption by a district, territory, or state of the United States, other than Utah.
3156 [
3157 obtainable, that contains the following information on an adoptee's birth parents, aunts, uncles,
3158 and grandparents:
3159 (a) medical history;
3160 (b) health status;
3161 (c) cause of and age at death;
3162 (d) height, weight, and eye and hair color;
3163 (e) ethnic origins;
3164 (f) where appropriate, levels of education and professional achievement; and
3165 (g) religion, if any.
3166 [
3167 status at the time of placement for adoption, and medical history, including neonatal,
3168 psychological, physiological, and medical care history.
3169 [
3170 office and that contains the name and address of a pre-existing parent or an adult adoptee, or
3171 other specific information that by itself or in reasonable conjunction with other information
3172 may be used to identify a pre-existing parent or an adult adoptee, including information on a
3173 birth certificate or in an adoption document.
3174 [
3175 another state, district, or territory of the United States as a:
3176 (a) certified social worker;
3177 (b) clinical social worker;
3178 (c) psychologist;
3179 (d) marriage and family therapist;
3180 (e) clinical mental health counselor; or
3181 (f) an equivalent licensed professional of another state, district, or territory of the
3182 United States.
3183 [
3184 [
3185 adult.
3186 [
3187 Department of Health operating under Title 26, Chapter 2, Utah Vital Statistics Act.
3188 [
3189 Subsections 78B-6-120(1)(b) through (f) from whom consent for adoption or relinquishment
3190 for adoption is required under Sections 78B-6-120 through 78B-6-122.
3191 [
3192 (a) is identified by a birth mother as a potential biological father of the birth mother's
3193 child, but whose genetic paternity has not been established; and
3194 (b) was not married to the biological mother of the child described in Subsection
3195 (23)(a) at the time of the child's conception or birth.
3196 [
3197 (a) a birth parent; or
3198 (b) an individual who, before an adoption decree is entered, is, due to an earlier
3199 adoption decree, legally the parent of the child being adopted.
3200 [
3201 adoptee.
3202 [
3203 (a) an adult who is a grandparent, great grandparent, aunt, great aunt, uncle, great
3204 uncle, brother-in-law, sister-in-law, stepparent, first cousin, stepsibling, sibling of a child, or
3205 first cousin of a child's parent; and
3206 (b) in the case of a child defined as an "Indian child" under the Indian Child Welfare
3207 Act, 25 U.S.C. Sec. 1903, an "extended family member" as defined by that statute.
3208 [
3209 (a) is the biological father of a child; and
3210 (b) was not married to the biological mother of the child described in Subsection [
3211 (26)(a) at the time of the child's conception or birth.
3212 Section 34. Section 78B-6-117 is amended to read:
3213 78B-6-117. Who may adopt -- Adoption of minor.
3214 (1) A minor child may be adopted by an adult person, in accordance with this section
3215 and this part.
3216 (2) A child may be adopted by:
3217 (a) adults who are legally married to each other in accordance with the laws of this
3218 state, including adoption by a stepparent; or
3219 (b) subject to Subsection [
3220
3221 [
3222
3223 [
3224 beneficial family structure, when a child in the custody of the division is placed for adoption,
3225 the division or child-placing agency shall place the child with a man and a woman who are
3226 married to each other, unless:
3227 (a) there are no qualified married couples who:
3228 (i) have applied to adopt a child;
3229 (ii) are willing to adopt the child; and
3230 (iii) are an appropriate placement for the child;
3231 (b) the child is placed with a relative of the child;
3232 (c) the child is placed with a person who has already developed a substantial
3233 relationship with the child;
3234 (d) the child is placed with a person who:
3235 (i) is selected by a parent or former parent of the child, if the parent or former parent
3236 consented to the adoption of the child; and
3237 (ii) the parent or former parent described in Subsection [
3238 (A) knew the person with whom the child is placed before the parent consented to the
3239 adoption; or
3240 (B) became aware of the person with whom the child is placed through a source other
3241 than the division or the child-placing agency that assists with the adoption of the child; or
3242 (e) it is in the best interests of the child to place the child with a single person.
3243 [
3244 before adoption is finalized, the adult has been convicted of, pleaded guilty to, or pleaded no
3245 contest to a felony or attempted felony involving conduct that constitutes any of the following:
3246 (a) child abuse, as described in Section 76-5-109;
3247 (b) child abuse homicide, as described in Section 76-5-208;
3248 (c) child kidnapping, as described in Section 76-5-301.1;
3249 (d) human trafficking of a child, as described in Section 76-5-308.5;
3250 (e) sexual abuse of a minor, as described in Section 76-5-401.1;
3251 (f) rape of a child, as described in Section 76-5-402.1;
3252 (g) object rape of a child, as described in Section 76-5-402.3;
3253 (h) sodomy on a child, as described in Section 76-5-403.1;
3254 (i) sexual abuse of a child or aggravated sexual abuse of a child, as described in
3255 Section 76-5-404.1;
3256 (j) sexual exploitation of a minor, as described in Section 76-5b-201; or
3257 (k) an offense in another state that, if committed in this state, would constitute an
3258 offense described in this Subsection [
3259 [
3260 offense listed in Subsection [
3261 adoption of a child except as provided in this Subsection [
3262 (b) A person described in Subsection [
3263 child if the following criteria are met by clear and convincing evidence:
3264 (i) at least 10 years have elapsed from the day on which the person is successfully
3265 released from prison, jail, parole, or probation related to a disqualifying offense;
3266 (ii) during the 10 years before the day on which the person files a petition with the
3267 court seeking adoption, the person has not been convicted, pleaded guilty, or pleaded no
3268 contest to an offense greater than an infraction or traffic violation that would likely impact the
3269 health, safety, or well-being of the child;
3270 (iii) the person can provide evidence of successful treatment or rehabilitation directly
3271 related to the disqualifying offense;
3272 (iv) the court determines that the risk related to the disqualifying offense is unlikely to
3273 cause harm, as defined in Section 78A-6-105, or potential harm to the child currently or at any
3274 time in the future when considering all of the following:
3275 (A) the child's age;
3276 (B) the child's gender;
3277 (C) the child's development;
3278 (D) the nature and seriousness of the disqualifying offense;
3279 (E) the preferences of a child 12 years of age or older;
3280 (F) any available assessments, including custody evaluations, home studies,
3281 pre-placement adoptive evaluations, parenting assessments, psychological or mental health
3282 assessments, and bonding assessments; and
3283 (G) any other relevant information;
3284 (v) the person can provide evidence of all of the following:
3285 (A) the relationship with the child is of long duration;
3286 (B) that an emotional bond exists with the child; and
3287 (C) that adoption by the person who has committed the disqualifying offense ensures
3288 the best interests of the child are met; and
3289 (vi) the adoption is by:
3290 (A) a stepparent whose spouse is the adoptee's parent and consents to the adoption; or
3291 (B) subject to Subsection [
3292 78A-6-307 and there is not another relative without a disqualifying offense filing an adoption
3293 petition.
3294 (c) The person with the disqualifying offense bears the burden of proof regarding why
3295 adoption with that person is in the best interest of the child over another responsible relative or
3296 equally situated person who does not have a disqualifying offense.
3297 (d) If there is an alternative responsible relative who does not have a disqualifying
3298 offense filing an adoption petition, the following applies:
3299 (i) preference for adoption shall be given to a relative who does not have a
3300 disqualifying offense; and
3301 (ii) before the court may grant adoption to the person who has the disqualifying offense
3302 over another responsible, willing, and able relative:
3303 (A) an impartial custody evaluation shall be completed; and
3304 (B) a guardian ad litem shall be assigned.
3305 [
3306 for which a final decision on adoption has not been made and to a case filed on or after March
3307 25, 2017.
3308 Section 35. Section 78B-6-133 is amended to read:
3309 78B-6-133. Contested adoptions -- Rights of parties -- Determination of custody.
3310 (1) If a person whose consent for an adoption is required pursuant to Subsection
3311 78B-6-120(1)(b), (c), (d), (e), or (f) refused to consent, the court shall determine whether
3312 proper grounds exist for the termination of that person's rights pursuant to the provisions of this
3313 chapter or Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act.
3314 (2) (a) If there are proper grounds to terminate the person's parental rights, the court
3315 shall order that the person's rights be terminated.
3316 (b) If there are not proper grounds to terminate the person's parental rights, the court
3317 shall:
3318 (i) dismiss the adoption petition;
3319 (ii) conduct an evidentiary hearing to determine who should have custody of the child;
3320 and
3321 (iii) award custody of the child in accordance with the child's best interest.
3322 (3) Evidence considered at the custody hearing may include:
3323 (a) evidence of psychological or emotional bonds that the child has formed with a third
3324 person, including the prospective adoptive parent; and
3325 (b) any detriment that a change in custody may cause the child.
3326 (4) If the court dismisses the adoption petition, the fact that a person relinquished a
3327 child for adoption or consented to the adoption may not be considered as evidence in a custody
3328 proceeding described in this section, or in any subsequent custody proceeding, that it is not in
3329 the child's best interest for custody to be awarded to such person or that:
3330 (a) the person is unfit or incompetent to be a parent;
3331 (b) the person has neglected or abandoned the child;
3332 (c) the person is not interested in having custody of the child; or
3333 (d) the person has forfeited the person's parental presumption.
3334 (5) Any custody order entered pursuant to this section may also:
3335 (a) include provisions for:
3336 (i) parent-time; or
3337 (ii) visitation by an interested third party; and
3338 (b) provide for the financial support of the child.
3339 (6) (a) If a person or entity whose consent is required for an adoption under Subsection
3340 78B-6-120(1)(a) or (g) refuses to consent, the court shall proceed with an evidentiary hearing
3341 and award custody as set forth in Subsection (2).
3342 (b) The court may also finalize the adoption if doing so is in the best interest of the
3343 child.
3344 (7) (a) A person may not contest an adoption after the final decree of adoption is
3345 entered, if that person:
3346 (i) was a party to the adoption proceeding;
3347 (ii) was served with notice of the adoption proceeding; or
3348 (iii) executed a consent to the adoption or relinquishment for adoption.
3349 (b) No person may contest an adoption after one year from the day on which the final
3350 decree of adoption is entered.
3351 (c) The limitations on contesting an adoption action, described in this Subsection (7),
3352 apply to all attempts to contest an adoption:
3353 (i) regardless of whether the adoption is contested directly or collaterally; and
3354 (ii) regardless of the basis for contesting the adoption, including claims of fraud,
3355 duress, undue influence, lack of capacity or competency, mistake of law or fact, or lack of
3356 jurisdiction.
3357 (d) The limitations on contesting an adoption action, described in this Subsection (7),
3358 do not prohibit a timely appeal of:
3359 (i) a final decree of adoption; or
3360 (ii) a decision in an action challenging an adoption, if the action was brought within the
3361 time limitations described in Subsections (7)(a) and (b).
3362 (8) A court that has jurisdiction over a child for whom more than one petition for
3363 adoption is filed shall grant a hearing [
3364 (a) to a petitioner:
3365 (i) with whom the child is placed;
3366 (ii) who has custody or guardianship of the child;
3367 (iii) who has filed a written statement with the court within 120 days after the day on
3368 which the shelter hearing is held:
3369 (A) requesting immediate placement of the child with the petitioner; and
3370 (B) expressing the petitioner's intention of adopting the child; or
3371 (iv) who is a relative:
3372 (A) with whom the child has a significant and substantial relationship; and
3373 (B) who was unaware, within the first 120 days after the day on which the shelter
3374 hearing is held, of the child's removal from the child's parent; or
3375 (b) if the child:
3376 (i) has been in the current placement for less than 180 days before the day on which the
3377 petitioner files the petition for adoption; or
3378 (ii) is placed with, or is in the custody or guardianship of, an individual who previously
3379 informed the division or the court that the individual is unwilling or unable to adopt the child.
3380 (9) (a) If the court grants a hearing on more than one petition for adoption, there is a
3381 rebuttable presumption that it is in the best interest of a child to be placed for adoption with a
3382 petitioner:
3383 (i) who has fulfilled the requirements described in Title 78B, Chapter 6, Part 1, Utah
3384 Adoption Act; and
3385 (ii) (A) with whom the child has continuously resided for six months;
3386 (B) who has filed a written statement with the court within 120 days after the day on
3387 which the shelter hearing is held, as described in Subsection (8)(a)(iii); or
3388 (C) who is a relative described in Subsection (8)(a)(iv).
3389 (b) The court may consider other factors relevant to the best interest of the child to
3390 determine whether the presumption is rebutted.
3391 (c) The court shall weigh the best interest of the child uniformly between petitioners if
3392 more than one petitioner satisfies a rebuttable presumption condition described in Subsection
3393 (9)(a).
3394 (10) Nothing in this section shall be construed to prevent the division or the child's
3395 guardian ad litem from appearing or participating in any proceeding for a petition for adoption.
3396 (11) [
3397
3398 information relating to a relative's rights or duties under this section.