Senator Luz Escamilla proposes the following substitute bill:


1     
ADOPTION SERVICE AGENCIES AMENDMENTS

2     
2019 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Luz Escamilla

5     
House Sponsor: V. Lowry Snow

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to adoption services.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     clarifies provisions prohibiting advertisements for certain adoption-related services;
14          ▸     requires the Office of Licensing within the Department of Human Services to
15     provide notice to certain persons upon finding the person is providing certain
16     adoption-related services without a license; and
17          ▸     makes technical changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          62A-4a-602, as last amended by Laws of Utah 2017, Chapter 148
25          62A-4a-603, as renumbered and amended by Laws of Utah 1994, Chapter 260
26          78B-6-124, as last amended by Laws of Utah 2017, Chapter 148
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 62A-4a-602 is amended to read:
30          62A-4a-602. Licensure requirements -- Prohibited acts.
31          (1) As used in this section:
32          (a) (i) "Advertisement" means any written, oral, or graphic statement or representation
33     made in connection with a solicitation of business.
34          (ii) "Advertisement" includes a statement or representation described in Subsection
35     (1)(a)(i) by a noncable television system, radio, printed brochure, newspaper, leaflet, flyer,
36     circular, billboard, banner, Internet website, social media, or sign.
37          (b) (i) "Matching advertisement" means any written, oral, or graphic statement or
38     representation made in connection with a solicitation of business to provide the assistance
39     described in Subsection (3)(a)(i), regardless of whether there is or will be an exchange
40     described in Subsection (3)(a)(ii).
41          (ii) "Matching advertisement" includes a statement or representation described in
42     Subsection (1)(b)(i) by a noncable television system, radio, printed brochure, newspaper,
43     leaflet, flyer, circular, billboard, banner, Internet website, social media, or sign.
44          (c) "Clearly and conspicuously disclose" means the same as that term is defined in
45     Section 13-11a-2.
46          [(1) No person may]
47          (2) (a) A person may not engage in child placing, or solicit money or other assistance
48     for child placing, without a valid license issued by the Office of Licensing, in accordance with
49     Chapter 2, Licensure of Programs and Facilities.
50          (b) When a child-placing agency's license is suspended or revoked in accordance with
51     that chapter, the care, control, or custody of any child who has been in the care, control, or
52     custody of that agency shall be transferred to the division.
53          [(2)] (3) (a) (i) An attorney, physician, or other person may assist a parent in
54     identifying or locating a person interested in adopting the parent's child, or in identifying or
55     locating a child to be adopted.[ However, no]
56          (ii) No payment, charge, fee, reimbursement of expense, or exchange of value of any
57     kind, or promise or agreement to make the same, may be made for [that] the assistance
58     described in Subsection (3)(a)(i).
59          (b) An attorney, physician, or other person may not:
60          (i) issue or cause to be issued to any person a card, sign, or device indicating that [he]
61     the attorney, physician, or other person is available to provide [that] the assistance described in
62     Subsection (3)(a)(i);
63          (ii) cause, permit, or allow any sign or marking indicating that [he] the attorney,
64     physician, or other person is available to provide [that] the assistance described in Subsection
65     (3)(a)(i), on or in any building or structure;
66          (iii) announce [or], cause, permit, or allow an announcement indicating that [he] the
67     attorney, physician, or other person is available to provide [that] the assistance described in
68     Subsection (3)(a)(i), to appear in any newspaper, magazine, directory, [or], on radio or
69     television, or an Internet website relating to a business; [or]
70          [(iv) advertise by any other means that he is available to provide that assistance.]
71          (iv) announce, cause, permit, or allow a matching advertisement; or
72          (v) announce, cause, permit, or allow an advertisement that indicates or implies the
73     attorney, physician, or other person is available to provide the assistance described in
74     Subsection (3)(a)(i) as part of, or related to, other adoption-related services by using any of the
75     following terms:
76          (A) "comprehensive";
77          (B) "complete";
78          (C) "one-stop";
79          (D) "all-inclusive"; or
80          (E) any other term similar to the terms described in Subsections (3)(b)(v)(A) through
81     (D).
82          (c) An attorney, physician, or other person who is not licensed by the Office of
83     Licensing within the department shall clearly and conspicuously disclose in any print media
84     advertisement or written contract regarding adoption services or adoption-related services that
85     the attorney, physician, or other person is not licensed to provide adoption services by the
86     Office of Licensing within the department.
87          [(3)] (4) Nothing in this part:
88          (a) precludes payment of fees for medical, legal, or other lawful services rendered in
89     connection with the care of a mother, delivery and care of a child, or lawful adoption
90     proceedings[; and no provision of this part]; or
91          (b) abrogates the right of procedures for independent adoption as provided by law.
92          [(4)] (5) In accordance with federal law, only agents or employees of the division and
93     of licensed child placing agencies may certify to the United States Immigration and
94     Naturalization Service that a family meets the division's preadoption requirements.
95          [(5) (a) Beginning May 1, 2000, neither]
96          (6) (a) Neither a licensed child-placing agency nor any attorney practicing in this state
97     may place a child for adoption, either temporarily or permanently, with any individual or
98     individuals that would not be qualified for adoptive placement pursuant to the provisions of
99     Sections 78B-6-117, 78B-6-102, and 78B-6-137.
100          (b) [Beginning May 1, 2000, the] The division, as a licensed child-placing agency, may
101     not place a child in foster care with any individual or individuals that would not be qualified
102     for adoptive placement pursuant to the provisions of Sections 78B-6-117, 78B-6-102, and
103     78B-6-137. However, nothing in this Subsection [(5)] (6)(b) limits the placement of a child in
104     foster care with the child's biological or adoptive parent.
105          (c) [Beginning May 1, 2000, with] With regard to children who are in the custody of
106     the state, the division shall establish a policy providing that priority for foster care and adoptive
107     placement shall be provided to families in which both a man and a woman are legally married
108     under the laws of this state. However, nothing in this Subsection [(5)] (6)(c) limits the
109     placement of a child with the child's biological or adoptive parent.
110          Section 2. Section 62A-4a-603 is amended to read:
111          62A-4a-603. Injunction -- Enforcement by county attorney or attorney general.
112          (1) The division, Office of Licensing within the department, or any interested person
113     may commence an action in district court to enjoin any person, agency, firm, corporation, or
114     association violating Section 62A-4a-602.
115          (2) The Office of Licensing shall:
116          (a) solicit information from the public relating to violations of Section 62A-4a-602;
117     and
118          (b) upon identifying a violation of Section 62A-4a-602:
119          (i) send a written notice to the person who violated Section 62A-4a-602 that describes
120     the alleged violation; and
121          (ii) notify the following persons of the alleged violation:
122          (A) the local county attorney; and
123          (B) the Division of Occupational and Professional Licensing.
124          [(2)] (3) (a) A county attorney or the attorney general shall institute legal action as
125     necessary to enforce the provisions of Section 62A-4a-602 [when informed of any] after being
126     informed of an alleged violation.
127          (b) If [the] a county attorney does not take action within 30 days after [being informed]
128     the day on which the county attorney is informed of an alleged violation of Section
129     62A-4a-602, the attorney general may be requested to take action, and shall then institute legal
130     proceedings in place of the county attorney.
131          [(3)] (4) (a) In addition to the remedies provided in Subsections (1) and [(2)] (3), any
132     person, agency, firm, corporation, or association found to be in violation of Section
133     62A-4a-602 shall forfeit all proceeds identified as resulting from the transaction, and may also
134     be assessed a civil penalty of not more than $10,000 for each violation. [Every]
135          (b) Each act in violation of Section 62A-4a-602, including each placement or
136     attempted placement of a child, is a separate violation.
137          [(4)] (5) (a) All amounts recovered as penalties under Subsection [(3)] (4) shall be
138     placed in the General Fund of the prosecuting county, or in the state General Fund if the
139     attorney general prosecutes.
140          (b) If two or more governmental entities are involved in the prosecution, the penalty
141     amounts recovered shall be apportioned by the court among the entities, according to their
142     involvement.
143          [(5)] (6) A judgment ordering the payment of any penalty or forfeiture under
144     Subsection [(3) constitutes] (4) is a lien when recorded in the judgment docket, and has the
145     same effect and is subject to the same rules as a judgment for money in a civil action.
146          Section 3. Section 78B-6-124 is amended to read:
147          78B-6-124. Persons who may take consents and relinquishments.
148          (1) A consent or relinquishment by a birth mother or an adoptee shall be signed before:
149          (a) a judge of any court that has jurisdiction over adoption proceedings;
150          (b) subject to Subsection (6), a person appointed by the judge described in Subsection
151     (1)(a) to take consents or relinquishments; or
152          (c) subject to Subsection (6), a person who is authorized by a child-placing agency to
153     take consents or relinquishments, if the consent or relinquishment grants legal custody of the
154     child to a child-placing agency or an extra-jurisdictional child-placing agency.
155          (2) If the consent or relinquishment of a birth mother or adoptee is taken out of state it
156     shall be signed before:
157          (a) subject to Subsection (6), a person who is authorized by a child-placing agency to
158     take consents or relinquishments, if the consent or relinquishment grants legal custody of the
159     child to a child-placing agency or an extra-jurisdictional child-placing agency;
160          (b) subject to Subsection (6), a person authorized or appointed to take consents or
161     relinquishments by a court of this state that has jurisdiction over adoption proceedings;
162          (c) a court that has jurisdiction over adoption proceedings in the state where the
163     consent or relinquishment is taken; or
164          (d) a person authorized, under the laws of the state where the consent or relinquishment
165     is taken, to take consents or relinquishments of a birth mother or adoptee.
166          (3) The consent or relinquishment of any other person or agency as required by Section
167     78B-6-120 may be signed before a Notary Public or any person authorized to take a consent or
168     relinquishment under Subsection (1) or (2).
169          (4) A person, authorized by Subsection (1) or (2) to take consents or relinquishments,
170     shall certify to the best of his information and belief that the person executing the consent or
171     relinquishment has read and understands the consent or relinquishment and has signed it freely
172     and voluntarily.
173          (5) A person executing a consent or relinquishment is entitled to receive a copy of the
174     consent or relinquishment.
175          (6) A signature described in Subsection (1)(b), (1)(c), (2)(a), or (2)(b), shall be:
176          (a) notarized; or
177          (b) witnessed by two individuals who are not members of the birth mother's or the
178     adoptee's immediate family.
179          (7) Except as provided in Subsection 62A-4a-602[(1)](2), a transfer of relinquishment
180     from one child-placing agency to another child-placing agency shall be signed before a Notary
181     Public.