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