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7 LONG TITLE
8 General Description:
9 This bill modifies provisions relating to adoption.
10 Highlighted Provisions:
11 This bill:
12 ▸ modifies the definition of "adoption related expenses" as the term is used in relation
13 to the criminal offense of sale of a child;
14 ▸ modifies provisions relating to:
15 • compliance with the Interstate Compact on Placement of Children;
16 • a background check of a prospective adoptive parent;
17 • required notice in an adoption proceeding; and
18 • procedural requirements for a petition to terminate parental rights; and
19 ▸ makes technical changes.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 76-7-203, as last amended by Laws of Utah 2008, Chapter 137
27 78B-6-107, as last amended by Laws of Utah 2008, Chapter 137 and renumbered and
28 amended by Laws of Utah 2008, Chapter 3
29 78B-6-110, as last amended by Laws of Utah 2018, Chapter 359
30 78B-6-110.5, as last amended by Laws of Utah 2017, Chapter 417
31 78B-6-112, as last amended by Laws of Utah 2018, Chapter 359
32 78B-6-128, as last amended by Laws of Utah 2017, Chapters 110 and 280
33
34 Be it enacted by the Legislature of the state of Utah:
35 Section 1. Section 76-7-203 is amended to read:
36 76-7-203. Sale of child -- Felony -- Payment of adoption related expenses.
37 (1) For purposes of this section:
38 (a) "Adoption related expenses" means expenses that:
39 (i) are reasonably related to the adoption of a child;
40 (ii) are incurred for a reasonable amount; and
41 (iii) may include expenses:
42 (A) of the mother or father of the child being adopted, including:
43 (I) legal expenses;
44 (II) maternity expenses;
45 (III) medical expenses;
46 (IV) hospital expenses;
47 (V) counseling expenses;
48 (VI) temporary living expenses and lost wages during the pregnancy [
49 of the mother for up to eight weeks after the day on which the mother delivers the child; or
50 (VII) expenses for travel between the mother's or father's home and the location where
51 the child will be born or placed for adoption;
52 (B) of a directly affected person for:
53 (I) travel between the directly affected person's home and the location where the child
54 will be born or placed for adoption; or
55 (II) temporary living expenses during the pregnancy or confinement of the mother; or
56 (C) other than those included in Subsection (1)(a)(iii)(A) or (B), that are not made for
57 the purpose of inducing the mother, parent, or legal guardian of a child to:
58 (I) place the child for adoption;
59 (II) consent to an adoption; or
60 (III) cooperate in the completion of an adoption.
61 (b) "Directly affected person" means a person who is:
62 (i) a parent or guardian of a minor when the minor is the mother or father of the child
63 being adopted;
64 (ii) a [
65 (A) the mother or father of the child being adopted; or
66 (B) the parent or guardian described in Subsection (1)(b)(i); or
67 (iii) the spouse or partner of the mother or father of the child being adopted.
68 (2) Except as provided in Subsection (3), a person is guilty of a third degree felony if
69 the person:
70 (a) while having custody, care, control, or possession of a child, sells, or disposes of
71 the child, or attempts or offers to sell or dispose of the child, for and in consideration of the
72 payment of money or another thing of value; or
73 (b) offers, gives, or attempts to give money or another thing of value to a person, with
74 the intent to induce or encourage a person to violate Subsection (2)(a).
75 (3) A person does not violate this section by paying or receiving payment for adoption
76 related expenses, if:
77 (a) the expenses are paid as an act of charity; and
78 (b) the payment is not made for the purpose of inducing the mother, parent, or legal
79 guardian of a child to:
80 (i) place the child for adoption;
81 (ii) consent to an adoption; or
82 (iii) cooperate in the completion of an adoption.
83 Section 2. Section 78B-6-107 is amended to read:
84 78B-6-107. Compliance with the Interstate Compact on Placement of Children --
85 Compliance with the Indian Child Welfare Act.
86 (1) (a) [
87 adoption shall state whether the child was born in another state and, if so, both the petition and
88 the court's final decree of adoption shall state that the requirements of Title 62A, Chapter 4a,
89 Part 7, Interstate Compact on Placement of Children, have been complied with.
90 (b) Subsection (1)(a) does not apply if the prospective adoptive parent is not required
91 to complete a preplacement adoptive evaluation under Section 78B-6-128.
92 (2) In any adoption proceeding involving an "Indian child," as defined in 25 U.S.C.
93 Sec. 1903, a child-placing agency and the petitioners shall comply with the Indian Child
94 Welfare Act, Title 25, Chapter 21, of the United States Code.
95 Section 3. Section 78B-6-110 is amended to read:
96 78B-6-110. Notice of adoption proceedings.
97 (1) (a) An unmarried biological father, by virtue of the fact that he has engaged in a
98 sexual relationship with a woman:
99 (i) is considered to be on notice that a pregnancy and an adoption proceeding regarding
100 the child may occur; and
101 (ii) has a duty to protect his own rights and interests.
102 (b) An unmarried biological father is entitled to actual notice of a birth or an adoption
103 proceeding with regard to his child only as provided in this section or Section 78B-6-110.5.
104 (2) Notice of an adoption proceeding shall be served on each of the following persons:
105 (a) any person or agency whose consent or relinquishment is required under Section
106 78B-6-120 or 78B-6-121, unless that right has been terminated by:
107 (i) waiver;
108 (ii) relinquishment;
109 [
110 (iii) actual or implied consent; or
111 (iv) judicial action;
112 (b) any person who has initiated a paternity proceeding and filed notice of that action
113 with the state registrar of vital statistics within the Department of Health, in accordance with
114 Subsection (3);
115 (c) any legally appointed custodian or guardian of the adoptee;
116 (d) the petitioner's spouse, if any, only if the petitioner's spouse has not joined in the
117 petition;
118 (e) the adoptee's spouse, if any;
119 (f) any person who, prior to the time the mother executes her consent for adoption or
120 relinquishes the child for adoption, is recorded on the birth certificate as the child's father, with
121 the knowledge and consent of the mother;
122 (g) a person who is:
123 (i) openly living in the same household with the child at the time the consent is
124 executed or relinquishment made; and
125 (ii) holding himself out to be the child's father; and
126 (h) any person who is married to the child's mother at the time she executes her consent
127 to the adoption or relinquishes the child for adoption, unless the court finds that the mother's
128 spouse is not the child's father under Section 78B-15-607.
129 (3) (a) In order to preserve any right to notice, an unmarried biological father shall,
130 consistent with Subsection (3)(d):
131 (i) initiate proceedings in a district court of Utah to establish paternity under Title 78B,
132 Chapter 15, Utah Uniform Parentage Act; and
133 (ii) file a notice of commencement of the proceedings described in Subsection (3)(a)(i)
134 with the office of vital statistics within the Department of Health.
135 (b) If the unmarried, biological father does not know the county in which the birth
136 mother resides, he may initiate his action in any county, subject to a change in trial pursuant to
137 Section 78B-3-307.
138 (c) The Department of Health shall provide forms for the purpose of filing the notice
139 described in Subsection (3)(a)(ii), and make those forms available in the office of the county
140 health department in each county.
141 (d) When the state registrar of vital statistics receives a completed form, the registrar
142 shall:
143 (i) record the date and time the form was received; and
144 (ii) immediately enter the information provided by the unmarried biological father in
145 the confidential registry established by Subsection 78B-6-121(3)(c).
146 (e) The action and notice described in Subsection (3)(a):
147 (i) may be filed before or after the child's birth; and
148 (ii) shall be filed prior to the mother's:
149 (A) execution of consent to adoption of the child; or
150 (B) relinquishment of the child for adoption.
151 (4) Notice provided in accordance with this section need not disclose the name of the
152 mother of the child who is the subject of an adoption proceeding.
153 (5) The notice required by this section:
154 (a) may be served at any time after the petition for adoption is filed, but may not be
155 served on a birth mother before she has given birth to the child who is the subject of the
156 petition for adoption;
157 (b) shall be served at least 30 days prior to the final dispositional hearing;
158 (c) shall specifically state that the person served shall fulfill the requirements of
159 Subsection (6)(a) within 30 days after the day on which the person receives service if the
160 person intends to intervene in or contest the adoption;
161 (d) shall state the consequences, described in Subsection (6)(b), for failure of a person
162 to file a motion for relief within 30 days after the day on which the person is served with notice
163 of an adoption proceeding;
164 (e) is not required to include, nor be accompanied by, a summons or a copy of the
165 petition for adoption;
166 (f) shall state where the person may obtain a copy of the petition for adoption; and
167 (g) shall indicate the right to the appointment of counsel for a party whom the court
168 determines is indigent and at risk of losing the party's parental rights.
169 (6) (a) A person who has been served with notice of an adoption proceeding and who
170 wishes to contest the adoption shall file a motion to intervene in the adoption proceeding:
171 (i) within 30 days after the day on which the person was served with notice of the
172 adoption proceeding;
173 (ii) setting forth specific relief sought; and
174 (iii) accompanied by a memorandum specifying the factual and legal grounds upon
175 which the motion is based.
176 (b) A person who fails to fully and strictly comply with all of the requirements
177 described in Subsection (6)(a) within 30 days after the day on which the person was served
178 with notice of the adoption proceeding:
179 (i) waives any right to further notice in connection with the adoption;
180 (ii) forfeits all rights in relation to the adoptee; and
181 (iii) is barred from thereafter bringing or maintaining any action to assert any interest in
182 the adoptee.
183 (7) Service of notice under this section shall be made as follows:
184 (a) (i) Subject to Subsection (5)(e), service on a person whose consent is necessary
185 under Section 78B-6-120 or 78B-6-121 shall be in accordance with the provisions of the Utah
186 Rules of Civil Procedure.
187 (ii) If service of a person described in Subsection (7)(a)(i) is by publication, the court
188 shall designate the content of the notice regarding the identity of the parties.
189 (iii) The notice described in this Subsection (7)(a) may not include the name of a
190 person seeking to adopt the adoptee.
191 (b) (i) Except as provided in Subsection (7)(b)(ii) to any other person for whom notice
192 is required under this section, service by certified mail, return receipt requested, is sufficient.
193 (ii) If the service described in Subsection (7)(b)(i) cannot be completed after two
194 attempts, the court may issue an order providing for service by publication, posting, or by any
195 other manner of service.
196 (c) Notice to a person who has initiated a paternity proceeding and filed notice of that
197 action with the state registrar of vital statistics in the Department of Health in accordance with
198 the requirements of Subsection (3), shall be served by certified mail, return receipt requested, at
199 the last address filed with the registrar.
200 (8) The notice required by this section may be waived in writing by the person entitled
201 to receive notice.
202 (9) Proof of service of notice on all persons for whom notice is required by this section
203 shall be filed with the court before the final dispositional hearing on the adoption.
204 (10) Notwithstanding any other provision of law, neither the notice of an adoption
205 proceeding nor any process in that proceeding is required to contain the name of the person or
206 persons seeking to adopt the adoptee.
207 (11) Except as to those persons whose consent to an adoption is required under Section
208 78B-6-120 or 78B-6-121, the sole purpose of notice under this section is to enable the person
209 served to:
210 (a) intervene in the adoption; and
211 (b) present evidence to the court relevant to the best interest of the child.
212 [
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216 Section 4. Section 78B-6-110.5 is amended to read:
217 78B-6-110.5. Out-of-state birth mothers and adoptive parents -- Declaration
218 regarding potential birth fathers.
219 The procedural and substantive requirements of this section shall be required only to the
220 extent that they do not exceed the requirements of the state of conception or the birth mother's
221 state of residence.
222 (1) (a) For a child who is six months of age or less at the time the child is placed with
223 prospective adoptive parents, the birth mother shall sign, and the adoptive parents shall file
224 with the court, a declaration regarding each potential birth father, in accordance with this
225 section, before or at the time a petition for adoption is filed with the court, if, at any point
226 during the time period beginning at the conception of the child and ending at the time the
227 mother executes consent to adoption or relinquishment of the child for adoption, neither the
228 birth mother nor at least one of the adoptive parents has resided in the state for 90 total days or
229 more, as described in Subsection (1)(c).
230 (b) The child-placing agency or prospective adoptive parents shall search the putative
231 father registry of each state where the birth mother believes the child may have been conceived
232 and each state where the birth mother lived during her pregnancy, if the state has a putative
233 father registry, to determine whether a potential birth father registered with the state's putative
234 father registry.
235 (c) In determining whether the 90-day requirement is satisfied, the following apply:
236 (i) the 90 days are not required to be consecutive;
237 (ii) no absence from the state may be for more than seven consecutive days;
238 (iii) any day on which the individual is absent from the state does not count toward the
239 total 90-day period; and
240 (iv) the 90-day period begins and ends during a period that is no more than 120
241 consecutive days.
242 (2) The declaration filed under Subsection (1) regarding a potential birth father shall
243 include, for each potential birth father, the following information:
244 (a) if known, the potential birth father's name, date of birth, social security number, and
245 address;
246 (b) with regard to a state's putative father registry in each state described in Subsection
247 (1)(b):
248 (i) whether the state has a putative father registry; and
249 (ii) for each state that has a putative father registry, with the declaration, a certificate or
250 written statement from the state's putative father registry that a search of the state's putative
251 father registry was made and disclosing the results of the search;
252 (c) whether the potential birth father was notified of:
253 (i) the birth mother's pregnancy;
254 (ii) the fact that he is a potential birth father; or
255 (iii) the fact that the birth mother intends to consent to adoption or relinquishment of
256 the child for adoption, in Utah;
257 (d) each state where the birth mother lived during the pregnancy;
258 (e) if known, the state in which the child was conceived;
259 (f) whether the birth mother informed the potential birth father that she was traveling to
260 or planning to reside in Utah;
261 (g) whether the birth mother has contacted the potential birth father while she was
262 located in Utah;
263 (h) whether, and for how long, the potential birth father has ever lived with the child;
264 (i) whether the potential birth father has given the birth mother money or offered to pay
265 for any of her expenses during pregnancy or the child's birth;
266 (j) whether the potential birth father has offered to pay child support;
267 (k) if known, whether the potential birth father has taken any legal action to establish
268 paternity of the child, either in Utah or in any other state, and, if known, what action he has
269 taken; and
270 (l) whether the birth mother has ever been involved in a domestic violence matter with
271 the potential birth father.
272 (3) Except as provided in Subsection (5), based on the declaration regarding the
273 potential birth father, the court shall order the birth mother to serve a potential birth father
274 notice that she intends to consent or has consented to adoption or relinquishment of the child
275 for adoption, if the court finds that the potential birth father:
276 (a) has taken sufficient action to demonstrate an interest in the child;
277 (b) has taken sufficient action to attempt to preserve his legal rights as a birth father,
278 including by filing a legal action to establish paternity or filing with a state's putative father
279 registry; or
280 (c) does not know, and does not have a reason to know, that:
281 (i) the mother or child are present in Utah;
282 (ii) the mother intended to give birth to the child in Utah;
283 (iii) the child was born in Utah; or
284 (iv) the mother intends to consent to adoption or relinquishment of the child for
285 adoption in Utah.
286 (4) Notice under this section shall be made in accordance with Subsections
287 78B-6-110(7) through [
288 (5) A court may only order the notice requirements in Subsection (3) to the extent that
289 they do not exceed the notice requirements of:
290 (a) the state of conception; or
291 (b) the birth mother's state of residence.
292 Section 5. Section 78B-6-112 is amended to read:
293 78B-6-112. District court jurisdiction over termination of parental rights
294 proceedings.
295 (1) A district court has jurisdiction to terminate parental rights in a child if the party
296 who filed the petition is seeking to terminate parental rights in the child for the purpose of
297 facilitating the adoption of the child.
298 (2) A petition to terminate parental rights under this section may be:
299 (a) joined with a proceeding on an adoption petition; or
300 (b) filed as a separate proceeding before or after a petition to adopt the child is filed.
301 (3) A court may enter a final order terminating parental rights before a final decree of
302 adoption is entered.
303 (4) (a) Nothing in this section limits the jurisdiction of a juvenile court relating to
304 proceedings to terminate parental rights as described in Section 78A-6-103.
305 (b) This section does not grant jurisdiction to a district court to terminate parental
306 rights in a child if the child is under the jurisdiction of the juvenile court in a pending abuse,
307 neglect, dependency, or termination of parental rights proceeding.
308 (5) The district court may terminate an individual's parental rights in a child if:
309 (a) the individual executes a voluntary consent to adoption, or relinquishment for
310 adoption, of the child, in accordance with:
311 (i) the requirements of this chapter; or
312 (ii) the laws of another state or country, if the consent is valid and irrevocable;
313 (b) the individual is an unmarried biological father who is not entitled to consent to
314 adoption, or relinquishment for adoption, under Section 78B-6-120 or 78B-6-121;
315 (c) the individual:
316 (i) received notice of the adoption proceeding relating to the child under Section
317 78B-6-110; and
318 (ii) failed to file a motion for relief, under Subsection 78B-6-110(6), within 30 days
319 after the day on which the individual was served with notice of the adoption proceeding;
320 (d) the court finds, under Section 78B-15-607, that the individual is not a parent of the
321 child; or
322 (e) the individual's parental rights are terminated on grounds described in Title 78A,
323 Chapter 6, Part 5, Termination of Parental Rights Act, if terminating the person's parental
324 rights is in the best interests of the child.
325 (6) The court shall appoint counsel designated by the county where the petition is filed
326 to represent a party who faces any action initiated by a private party under Title 78A, Chapter
327 6, Part 5, Termination of Parental Rights Act or whose parental rights are subject to
328 termination under this section, if:
329 (a) the court determines that the party is indigent under Section 77-32-202; and
330 (b) the party does not, after being fully advised of the right to counsel, knowingly,
331 intelligently and voluntarily waive the right to counsel.
332 (7) If a county incurs expenses in providing defense services to indigent individuals
333 facing any action initiated by a private party under Title 78A, Chapter 6, Part 5, Termination of
334 Parental Rights Act or termination of parental rights under this section, the county may apply
335 for a grant for reimbursement from the Utah Indigent Defense Commission under Section
336 77-32-806.
337 (8) A petition filed under this section is subject to the procedural requirements of this
338 chapter.
339 Section 6. Section 78B-6-128 is amended to read:
340 78B-6-128. Preplacement adoptive evaluations -- Exceptions.
341 (1) (a) Except as otherwise provided in this section, a child may not be placed in an
342 adoptive home until a preplacement adoptive evaluation, assessing the prospective adoptive
343 parent and the prospective adoptive home, has been conducted in accordance with the
344 requirements of this section.
345 (b) Except as provided in Section 78B-6-131, the court may, at any time, authorize
346 temporary placement of a child in a prospective adoptive home pending completion of a
347 preplacement adoptive evaluation described in this section.
348 (c) (i) Subsection (1)(a) does not apply if a pre-existing parent has legal custody of the
349 child to be adopted and the prospective adoptive parent is related to that child or the
350 pre-existing parent as a stepparent, sibling by half or whole blood or by adoption, grandparent,
351 aunt, uncle, or first cousin, unless the court otherwise requests the preplacement adoption.
352 (ii) The prospective adoptive parent described in this Subsection (1)(c) shall obtain the
353 information described in Subsections (2)(a) and (b), and file that documentation with the court
354 prior to finalization of the adoption.
355 (d) (i) The preplacement adoptive evaluation shall be completed or updated within the
356 12-month period immediately preceding the placement of a child with the prospective adoptive
357 parent.
358 (ii) If the prospective adoptive parent has previously received custody of a child for the
359 purpose of adoption, the preplacement adoptive evaluation shall be completed or updated
360 within the 12-month period immediately preceding the placement of a child with the
361 prospective adoptive parent and after the placement of the previous child with the prospective
362 adoptive parent.
363 (2) The preplacement adoptive evaluation shall include:
364 (a) a criminal history background check regarding each prospective adoptive parent
365 and any other adult living in the prospective home, prepared no earlier than 18 months
366 immediately preceding placement of the child in accordance with the following:
367 (i) if the child is in state custody, each prospective adoptive parent and any other adult
368 living in the prospective home shall submit fingerprints to the Department of Human Services,
369 which shall perform a criminal history background check in accordance with Section
370 62A-2-120; or
371 (ii) subject to Subsection (3), if the child is not in state custody, an adoption service
372 provider or an attorney representing a prospective adoptive parent shall submit fingerprints
373 from the prospective adoptive parent and any other adult living in the prospective home to the
374 Criminal and Technical Services Division of Public Safety for a regional and nationwide
375 background check, [
376 for a background check in accordance with 62A-2-120[
377 Investigation;
378 (b) a report containing all information regarding reports and investigations of child
379 abuse, neglect, and dependency, with respect to each prospective adoptive parent and any other
380 adult living in the prospective home, obtained no earlier than 18 months immediately preceding
381 the day on which the child is placed in the prospective home, pursuant to waivers executed by
382 each prospective adoptive parent and any other adult living in the prospective home, that:
383 (i) if the prospective adoptive parent or the adult living in the prospective adoptive
384 parent's home is a resident of Utah, is prepared by the Department of Human Services from the
385 records of the Department of Human Services; or
386 (ii) if the prospective adoptive parent or the adult living in the prospective adoptive
387 parent's home is not a resident of Utah, prepared by the Department of Human Services, or a
388 similar agency in another state, district, or territory of the United States, where each
389 prospective adoptive parent and any other adult living in the prospective home resided in the
390 five years immediately preceding the day on which the child is placed in the prospective
391 adoptive home;
392 (c) in accordance with Subsection (6), a home study conducted by an adoption service
393 provider that is:
394 (i) an expert in family relations approved by the court;
395 (ii) a certified social worker;
396 (iii) a clinical social worker;
397 (iv) a marriage and family therapist;
398 (v) a psychologist;
399 (vi) a social service worker, if supervised by a certified or clinical social worker;
400 (vii) a clinical mental health counselor; or
401 (viii) an Office of Licensing employee within the Department of Human Services who
402 is trained to perform a home study; and
403 (d) in accordance with Subsection (7), if the child to be adopted is a child who is in the
404 custody of any public child welfare agency, and is a child who has a special need as defined in
405 Section 62A-4a-902, the preplacement adoptive evaluation shall be conducted by the
406 Department of Human Services or a child-placing agency that has entered into a contract with
407 the department to conduct the preplacement adoptive evaluations for children with special
408 needs.
409 (3) For purposes of Subsection (2)(a)(ii), subject to Subsection (4), the criminal history
410 background check described in Subsection (2)(a)(ii) shall be submitted in a manner acceptable
411 to the court that will:
412 (a) preserve the chain of custody of the results; and
413 (b) not permit tampering with the results by a prospective adoptive parent or other
414 interested party.
415 (4) In order to comply with Subsection (3), the manner in which the criminal history
416 background check is submitted shall be approved by the court.
417 (5) Except as provided in Subsection 78B-6-131(2), in addition to the other
418 requirements of this section, before a child in state custody is placed with a prospective foster
419 parent or a prospective adoptive parent, the Department of Human Services shall comply with
420 Section 78B-6-131.
421 (6) (a) An individual described in Subsections (2)(c)(i) through (vii) shall be licensed to
422 practice under the laws of:
423 (i) this state; or
424 (ii) the state, district, or territory of the United States where the prospective adoptive
425 parent or other person living in the prospective adoptive home resides.
426 (b) Neither the Department of Human Services nor any of the department's divisions
427 may proscribe who qualifies as an expert in family relations or who may conduct a home study
428 under Subsection (2)(c).
429 (c) The home study described in Subsection (2)(c) shall be a written document that
430 contains the following:
431 (i) a recommendation to the court regarding the suitability of the prospective adoptive
432 parent for placement of a child;
433 (ii) a description of in-person interviews with the prospective adoptive parent, the
434 prospective adoptive parent's children, and other individuals living in the home;
435 (iii) a description of character and suitability references from at least two individuals
436 who are not related to the prospective adoptive parent and with at least one individual who is
437 related to the prospective adoptive parent;
438 (iv) a medical history and a doctor's report, based upon a doctor's physical examination
439 of the prospective adoptive parent, made within two years before the date of the application;
440 and
441 (v) a description of an inspection of the home to determine whether sufficient space
442 and facilities exist to meet the needs of the child and whether basic health and safety standards
443 are maintained.
444 (7) Any fee assessed by the evaluating agency described in Subsection (2)(d) is the
445 responsibility of the adopting parent.
446 (8) The person conducting the preplacement adoptive evaluation shall, in connection
447 with the preplacement adoptive evaluation, provide the prospective adoptive parent with
448 literature approved by the Division of Child and Family Services relating to adoption, including
449 information relating to:
450 (a) the adoption process;
451 (b) developmental issues that may require early intervention; and
452 (c) community resources that are available to the prospective adoptive parent.
453 (9) A copy of the preplacement adoptive evaluation shall be filed with the court.