1     
DEFENSE CONTRACTS AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: Eric K. Hutchings

6     

7     LONG TITLE
8     General Description:
9          This bill modifies and enacts provisions related to indigent and parental defense.
10     Highlighted Provisions:
11          This bill:
12          ▸     creates and modifies definitions;
13          ▸     amends the powers, duties, and membership of the Utah Indigent Defense
14     Commission;
15          ▸     creates the Office of Indigent Defense Services;
16          ▸     creates the powers and duties of the Office of Indigent Defense Services;
17          ▸     requires the Office of Indigent Defense Services to administer the Child Welfare
18     Parental Defense Program;
19          ▸     modifies provisions relating to administration of the Child Welfare Parental
20     Defense Program;
21          ▸     creates a reporting requirement for indigent defense services; and
22          ▸     makes technical and conforming changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          This bill provides coordination clauses.
27     Utah Code Sections Affected:
28     AMENDS:
29          63M-7-204, as last amended by Laws of Utah 2019, Chapter 435
30          78A-6-1111, as last amended by Laws of Utah 2019, Chapter 326
31          78B-6-112, as last amended by Laws of Utah 2019, Chapters 136, 326, and 491
32          78B-22-102, as enacted by Laws of Utah 2019, Chapter 326
33          78B-22-201, as enacted by Laws of Utah 2019, Chapter 326
34          78B-22-401, as renumbered and amended by Laws of Utah 2019, Chapter 326
35          78B-22-402, as last amended by Laws of Utah 2019, Chapter 435 and renumbered and
36     amended by Laws of Utah 2019, Chapter 326
37          78B-22-404, as renumbered and amended by Laws of Utah 2019, Chapter 326
38          78B-22-406, as renumbered and amended by Laws of Utah 2019, Chapter 326
39     ENACTS:
40          78B-22-451, Utah Code Annotated 1953
41          78B-22-452, Utah Code Annotated 1953
42          78B-22-801, Utah Code Annotated 1953
43     RENUMBERS AND AMENDS:
44          78B-22-453, (Renumbered from 78B-22-403, as renumbered and amended by Laws of
45     Utah 2019, Chapter 326)
46          78B-22-802, (Renumbered from 63M-7-211, as enacted by Laws of Utah 2019, Chapter
47     435)
48          78B-22-803, (Renumbered from 63M-7-211.1, as enacted by Laws of Utah 2019,
49     Chapter 435)
50          78B-22-804, (Renumbered from 63M-7-211.2, as enacted by Laws of Utah 2019,
51     Chapter 435)
52     Utah Code Sections Affected by Coordination Clauses:
53          78B-22-402, as last amended by Laws of Utah 2019, Chapter 435 and renumbered and
54     amended by Laws of Utah 2019, Chapter 326
55          78B-22-451, Utah Code Annotated 1953
56          78B-22-452, Utah Code Annotated 1953
57          78B-22-453, Renumbered from 78B-22-403, as renumbered and amended by Laws of
58     Utah 2019, Chapter 326
59          78B-22-803, Renumbered from 63M-7-211.1, as enacted by Laws of Utah 2019,
60     Chapter 435
61     

62     Be it enacted by the Legislature of the state of Utah:
63          Section 1. Section 63M-7-204 is amended to read:
64          63M-7-204. Duties of commission.
65          (1) The State Commission on Criminal and Juvenile Justice administration shall:
66          (a) promote the commission's purposes as enumerated in Section 63M-7-201;
67          (b) promote the communication and coordination of all criminal and juvenile justice
68     agencies;
69          (c) study, evaluate, and report on the status of crime in the state and on the
70     effectiveness of criminal justice policies, procedures, and programs that are directed toward the
71     reduction of crime in the state;
72          (d) study, evaluate, and report on programs initiated by state and local agencies to
73     address reducing recidivism, including changes in penalties and sentencing guidelines intended
74     to reduce recidivism, costs savings associated with the reduction in the number of inmates, and
75     evaluation of expenses and resources needed to meet goals regarding the use of treatment as an
76     alternative to incarceration, as resources allow;
77          (e) study, evaluate, and report on policies, procedures, and programs of other
78     jurisdictions which have effectively reduced crime;
79          (f) identify and promote the implementation of specific policies and programs the
80     commission determines will significantly reduce crime in Utah;
81          (g) provide analysis and recommendations on all criminal and juvenile justice
82     legislation, state budget, and facility requests, including program and fiscal impact on all
83     components of the criminal and juvenile justice system;
84          (h) provide analysis, accountability, recommendations, and supervision for state and
85     federal criminal justice grant money;
86          (i) provide public information on the criminal and juvenile justice system and give
87     technical assistance to agencies or local units of government on methods to promote public
88     awareness;
89          (j) promote research and program evaluation as an integral part of the criminal and
90     juvenile justice system;
91          (k) provide a comprehensive criminal justice plan annually;
92          (l) review agency forecasts regarding future demands on the criminal and juvenile
93     justice systems, including specific projections for secure bed space;
94          (m) promote the development of criminal and juvenile justice information systems that
95     are consistent with common standards for data storage and are capable of appropriately sharing
96     information with other criminal justice information systems by:
97          (i) developing and maintaining common data standards for use by all state criminal
98     justice agencies;
99          (ii) annually performing audits of criminal history record information maintained by
100     state criminal justice agencies to assess their accuracy, completeness, and adherence to
101     standards;
102          (iii) defining and developing state and local programs and projects associated with the
103     improvement of information management for law enforcement and the administration of
104     justice; and
105          (iv) establishing general policies concerning criminal and juvenile justice information
106     systems and making rules as necessary to carry out the duties under Subsection (1)(k) and this
107     Subsection (1)(m);
108          (n) allocate and administer grants, from money made available, for approved education
109     programs to help prevent the sexual exploitation of children;
110          (o) allocate and administer grants funded from money from the Law Enforcement
111     Operations Account created in Section 51-9-411 for law enforcement operations and programs
112     related to reducing illegal drug activity and related criminal activity;
113          (p) request, receive, and evaluate data and recommendations collected and reported by
114     agencies and contractors related to policies recommended by the commission regarding
115     recidivism reduction;
116          (q) establish and administer a performance incentive grant program that allocates funds
117     appropriated by the Legislature to programs and practices implemented by counties that reduce
118     recidivism and reduce the number of offenders per capita who are incarcerated;
119          (r) oversee or designate an entity to oversee the implementation of juvenile justice
120     reforms;
121          (s) make rules and administer the juvenile holding room standards and juvenile jail
122     standards to align with the Juvenile Justice and Delinquency Prevention Act requirements
123     pursuant to 42 U.S.C. Sec. 5633;
124          (t) allocate and administer grants, from money made available, for pilot qualifying
125     education programs; and
126          (u) oversee the trauma-informed justice program described in Section 63M-7-209[;
127     and].
128          [(v) administer the Child Welfare Parental Defense Program in accordance with
129     Sections 63M-7-211, 63M-7-211.1, and 63M-7-211.2.]
130          (2) If the commission designates an entity under Subsection (1)(r), the commission
131     shall ensure that the membership of the entity includes representation from the three branches
132     of government and, as determined by the commission, representation from relevant stakeholder
133     groups across all parts of the juvenile justice system, including county representation.
134          Section 2. Section 78A-6-1111 is amended to read:
135          78A-6-1111. Order for indigent defense service or guardian ad litem.
136          [(1) A court shall order indigent defense services for a minor, parent, or legal guardian
137     as provided by Title 78B, Chapter 22, Indigent Defense Act.]
138          (1) A court shall order indigent defense services in accordance with Title 78B, Chapter
139     22, Indigent Defense Act, for a minor, parent, or legal guardian facing an action filed by a
140     private party or the state under this title.
141          (2) (a) In any action under Part 3, Abuse, Neglect, and Dependency Proceedings, or
142     Part 5, Termination of Parental Rights Act, the child shall be represented by a guardian ad
143     litem in accordance with Sections 78A-6-317 and 78A-6-902.
144          (b) The child shall [also] be represented by an attorney guardian ad litem in other
145     actions initiated under this chapter when appointed by the court under Section 78A-6-902 or as
146     otherwise provided by law.
147          Section 3. Section 78B-6-112 is amended to read:
148          78B-6-112. District court jurisdiction over termination of parental rights
149     proceedings.
150          (1) A district court has jurisdiction to terminate parental rights in a child if the party
151     [who] that filed the petition is seeking to terminate parental rights in the child for the purpose
152     of facilitating the adoption of the child.
153          (2) A petition to terminate parental rights under this section may be:
154          (a) joined with a proceeding on an adoption petition; or
155          (b) filed as a separate proceeding before or after a petition to adopt the child is filed.
156          (3) A court may enter a final order terminating parental rights before a final decree of
157     adoption is entered.
158          (4) (a) Nothing in this section limits the jurisdiction of a juvenile court relating to
159     proceedings to terminate parental rights as described in Section 78A-6-103.
160          (b) This section does not grant jurisdiction to a district court to terminate parental
161     rights in a child if the child is under the jurisdiction of the juvenile court in a pending abuse,
162     neglect, dependency, or termination of parental rights proceeding.
163          (5) The district court may terminate an individual's parental rights in a child if:
164          (a) the individual executes a voluntary consent to adoption, or relinquishment for
165     adoption, of the child, in accordance with:
166          (i) the requirements of this chapter; or
167          (ii) the laws of another state or country, if the consent is valid and irrevocable;
168          (b) the individual is an unmarried biological father who is not entitled to consent to
169     adoption, or relinquishment for adoption, under Section 78B-6-120 or 78B-6-121;
170          (c) the individual:
171          (i) received notice of the adoption proceeding relating to the child under Section
172     78B-6-110; and
173          (ii) failed to file a motion for relief, under Subsection 78B-6-110(6), within 30 days
174     after the day on which the individual was served with notice of the adoption proceeding;
175          (d) the court finds, under Section 78B-15-607, that the individual is not a parent of the
176     child; or
177          (e) the individual's parental rights are terminated on grounds described in Title 78A,
178     Chapter 6, Part 5, Termination of Parental Rights Act, [if terminating the individual's parental
179     rights] and termination is in the best interests of the child.
180          (6) The court shall appoint an indigent defense service provider[, under] in accordance
181     with Title 78B, Chapter 22, Indigent Defense Act, to represent [a party] an individual who
182     faces any action initiated by a private party under Title 78A, Chapter 6, Part 5, Termination of
183     Parental Rights Act, or whose parental rights are subject to termination under this section.
184          (7) If a county incurs expenses in providing indigent defense services to an indigent
185     individual facing any action initiated by a private party under Title 78A, Chapter 6, Part 5,
186     Termination of Parental Rights Act, or termination of parental rights under this section, the
187     county may apply for reimbursement from the Utah Indigent Defense Commission [under] in
188     accordance with Section 78B-22-406.
189          (8) A petition filed under this section is subject to the procedural requirements of this
190     chapter.
191          Section 4. Section 78B-22-102 is amended to read:
192          78B-22-102. Definitions.
193          As used in this chapter:
194          (1) "Account" means the Indigent Defense Resources Restricted Account created in
195     Section 78B-22-405.
196          (2) "Board" means the Indigent Defense Funds Board created in Section 78B-22-501.
197          (3) "Commission" means the Utah Indigent Defense Commission created in Section
198     78B-22-401.
199          (4) "Director" means the director of the Office of Indigent Defense Services, created in
200     Section 78B-22-451, who is appointed in accordance with Section 78B-22-453.
201          [(4)] (5) (a) "Indigent defense resources" means the resources necessary to provide an
202     effective defense for an indigent individual, including the costs for a competent investigator,
203     expert witness, scientific or medical testing, transcripts, and printing briefs.
204          (b) "Indigent defense resources" does not include an indigent defense service provider.
205          [(5)] (6) "Indigent defense service provider" means an attorney or entity appointed to
206     represent an indigent individual pursuant to:
207          (a) a contract with an indigent defense system to provide indigent defense services; or
208          (b) an order issued by the court under Subsection 78B-22-203(2)(a).
209          [(6)] (7) "Indigent defense services" means:
210          (a) the representation of an indigent individual by an indigent defense service provider;
211     and
212          (b) the provision of indigent defense resources for an indigent individual.
213          [(7)] (8) "Indigent defense system" means:
214          (a) a city or town that is responsible for providing indigent defense services [in the
215     city's or town's justice court];
216          (b) a county that is responsible for providing indigent defense services in the district
217     court, juvenile court, [or] and the county's justice courts; or
218          (c) an interlocal entity, created pursuant to Title 11, Chapter 13, Interlocal Cooperation
219     Act, that is responsible for providing indigent defense services according to the terms of an
220     agreement between a county, city, or town.
221          [(8)] (9) "Indigent individual" means:
222          (a) a minor who is:
223          (i) arrested and admitted into detention for an offense under Section 78A-6-103;
224          (ii) charged by petition or information in the juvenile or district court; or
225          (iii) described in this Subsection [(8)] (9)(a), who is appealing [a first appeal from] an
226     adjudication or other final court action; and
227          (b) an individual listed in Subsection 78B-22-201(1) who is found indigent pursuant to
228     Section 78B-22-202.
229          [(9)] (10) "Minor" means the same as that term is defined in Section 78A-6-105.
230          (11) "Office" means the Office of Indigent Defense Services created in Section
231     78B-22-451.
232          [(10)] (12) "Participating county" means a county that complies with this chapter for
233     participation in the Indigent Aggravated Murder Defense Trust Fund as provided in Sections
234     78B-22-702 and 78B-22-703.
235          Section 5. Section 78B-22-201 is amended to read:
236          78B-22-201. Right to counsel.
237          (1) A court shall advise the following of the individual's right to counsel when the
238     individual first appears before the court:
239          (a) an adult charged with a criminal offense the penalty for which includes the
240     possibility of incarceration regardless of whether actually imposed;
241          (b) a parent or legal guardian facing [any] an action initiated by the state under:
242          (i) Title 78A, Chapter 6, Part 3, Abuse, Neglect, and Dependency Proceedings;
243          (ii) Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
244          (iii) Title 78A, Chapter 6, Part 10, Adult Offenses; [or]
245          [(iv) Section 78B-6-112; or]
246          (c) a parent or legal guardian facing an action initiated by any party under:
247          (i) Title 78A, Chapter 6, Part 5, Termination of Parental Rights Act; or
248          (ii) Section 78B-6-112; or
249          [(c)] (d) an individual described in this Subsection (1), who is appealing [a first appeal
250     from] a conviction or other final court action.
251          (2) If an individual described in Subsection (1) does not knowingly and voluntarily
252     waive the right to counsel, the court shall determine whether the individual is indigent under
253     Section 78B-22-202.
254          Section 6. Section 78B-22-401 is amended to read:
255          78B-22-401. Utah Indigent Defense Commission -- Creation -- Purpose.
256          (1) There is created the Utah Indigent Defense Commission within the State
257     Commission on Criminal and Juvenile Justice [the "Utah Indigent Defense Commission."].
258          (2) The purpose of the commission is to assist:
259          (a) the state in meeting the state's obligations for the provision of indigent defense
260     services, consistent with the United States Constitution, the Utah Constitution, and the Utah
261     Code[.]; and
262          (b) the office with carrying out the statutory duties assigned to the commission and
263     office.
264          Section 7. Section 78B-22-402 is amended to read:
265          78B-22-402. Commission members -- Member qualifications -- Terms -- Vacancy.
266          (1) (a) The commission is composed of 15 [voting] members [and one ex officio,
267     nonvoting member].
268          [(a)] (b) The governor, with the consent of the Senate, shall appoint the following [13
269     voting] 11 members:
270          (i) two practicing criminal defense attorneys recommended by the Utah Association of
271     Criminal Defense Lawyers;
272          (ii) one attorney practicing in juvenile delinquency defense recommended by the Utah
273     Association of Criminal Defense Lawyers;
274          (iii) one attorney practicing in the area of parental defense, recommended by an entity
275     funded under the Child Welfare Parental Defense Program created in Section 78B-22-802;
276          [(iii) an] (iv) one attorney representing minority interests recommended by the Utah
277     Minority Bar Association;
278          [(iv)] (v) one member recommended by the Utah Association of Counties from a
279     county of the first or second class;
280          [(v)] (vi) one member recommended by the Utah Association of Counties from a
281     county of the third through sixth class;
282          [(vi)] (vii) a director of a county public defender organization recommended by the
283     Utah Association of Criminal Defense Lawyers;
284          [(vii)] (viii) two members recommended by the Utah League of Cities and Towns from
285     its membership; and
286          [(viii) a] (ix) one retired judge recommended by the Judicial Council[;].
287          [(ix) one attorney practicing in the area of parental defense, recommended by an entity
288     funded under the Child Welfare Parental Defense Program created in Section 63M-7-211; and]
289          [(x)] (c) The speaker of the House of Representatives and the president of the Senate
290     shall appoint two members of the Utah Legislature, one from the House of Representatives and
291     one from the Senate[, selected jointly by the Speaker of the House and President of the Senate].
292          [(b)] (d) The Judicial Council shall appoint a [voting] member from the Administrative
293     Office of the Courts.
294          [(c)] (e) The executive director of the State Commission on Criminal and Juvenile
295     Justice or the executive director's designee is a [voting] member of the commission.
296          [(d) The director of the commission, appointed under Section 78B-22-403, is an ex
297     officio, nonvoting member of the commission.]
298          (2) A member appointed by the governor shall serve a four-year term, except as
299     provided in Subsection (3).
300          (3) The governor shall stagger the initial terms of appointees so that approximately half
301     of the members appointed by the governor are appointed every two years.
302          (4) A member appointed to the commission shall have significant experience in
303     indigent criminal defense , parental defense, or juvenile defense in delinquency proceedings or
304     have otherwise demonstrated a strong commitment to providing effective representation in
305     indigent defense services.
306          (5) [A person] An individual who is currently employed solely as a criminal
307     prosecuting attorney may not serve as a member of the commission .
308          (6) A commission member shall hold office until the member's successor is appointed.
309          (7) The commission may remove a member for incompetence, dereliction of duty,
310     malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
311          (8) If a vacancy occurs in the membership for any reason, a replacement shall be
312     appointed for the remaining unexpired term in the same manner as the original appointment.
313          (9) (a) The commission shall [annually] elect annually a chair from the commission's
314     membership to serve a one-year term.
315          (b) A commission member may not serve as chair of the commission for more than
316     three consecutive terms.
317          (10) A member may not receive compensation or benefits for the member's service, but
318     may receive per diem and travel expenses in accordance with:
319          (a) Section 63A-3-106;
320          (b) Section 63A-3-107; and
321          (c) rules made by the Division of Finance [pursuant to] in accordance with Sections
322     63A-3-106 and 63A-3-107.
323          (11) (a) A majority of the members of the commission constitutes a quorum.
324          (b) If a quorum is present, the action of a majority of the voting members present
325     constitutes the action of the commission.
326          Section 8. Section 78B-22-404 is amended to read:
327          78B-22-404. Powers and duties of the commission.
328          (1) The commission shall:
329          (a) adopt minimum guidelines for an indigent defense system to ensure the effective
330     representation of indigent individuals consistent with the requirements of the United States
331     Constitution, the Utah Constitution, and the Utah Code, which guidelines at a minimum shall
332     address the following:
333          (i) an indigent defense system shall ensure that in providing indigent defense services:
334          (A) an indigent individual receives conflict-free indigent defense services; and
335          (B) there is a separate contract for each type of indigent defense service; and
336          (ii) an indigent defense system shall ensure an indigent defense service provider has:
337          (A) the ability to exercise independent judgment without fear of retaliation and is free
338     to represent an indigent individual based on the indigent defense service provider's own
339     independent judgment;
340          (B) adequate access to indigent defense resources;
341          (C) the ability to provide representation to accused individuals in criminal cases at the
342     critical stages[, and at the] of proceedings, and at all stages to indigent individuals in juvenile
343     delinquency and child welfare proceedings;
344          (D) a workload that allows for sufficient time to meet with clients, investigate cases,
345     file appropriate documents with the courts, and otherwise provide effective assistance of
346     counsel to each client;
347          (E) adequate compensation without financial disincentives;
348          (F) appropriate experience or training in the area for which the indigent defense service
349     provider is representing indigent individuals;
350          (G) compensation for legal training and education in the areas of the law relevant to the
351     types of cases for which the indigent defense service provider is representing indigent
352     individuals; and
353          (H) the ability to meet the obligations of the Utah Rules of Professional Conduct,
354     including expectations on client communications and managing conflicts of interest;
355          (b) encourage and aid indigent defense systems in the state in the regionalization of
356     indigent defense services to provide for effective and efficient representation to the indigent
357     individuals;
358          [(c) identify and collect data from any source, which is necessary for the commission
359     to:]
360          [(i) aid, oversee, and review compliance by indigent defense systems with the
361     commission's minimum guidelines for the effective representation of indigent individuals; and]
362          [(ii) provide reports regarding the operation of the commission and the provision of
363     indigent defense services by indigent defense systems in the state;]
364          [(d) assist indigent defense systems by reviewing contracts and other agreements, to
365     ensure compliance with the commission's minimum guidelines for effective representation of
366     indigent individuals;]
367          [(e) investigate, audit, and review the provision of indigent defense services to ensure
368     compliance with the commission's minimum guidelines for the effective representation of
369     indigent individuals;]
370          [(f) establish procedures for the receipt and acceptance of complaints regarding the
371     provision of indigent defense services in the state;]
372          [(g) establish procedures to award grants to indigent defense systems under Section
373     78B-22-406 consistent with the commission's minimum guidelines for the effective
374     representation of indigent individuals and appropriations by the state;]
375          [(h)] (c) emphasize the importance of ensuring constitutionally effective indigent
376     defense services;
377          [(i)] (d) encourage members of the judiciary to provide input regarding the delivery of
378     indigent defense services; and
379          [(j)] (e) oversee individuals and entities involved in providing indigent defense
380     services[;].
381          [(k) annually report to the governor, Legislature, Judiciary Interim Committee, and
382     Judicial Council, regarding:]
383          [(i) the operations of the commission;]
384          [(ii) the operations of the indigent defense systems in the state; and]
385          [(iii) compliance with the commission's minimum guidelines by indigent defense
386     systems receiving grants from the commission;]
387          [(l) submit recommendations for improving indigent defense services in the state, to
388     legislative, executive, and judicial leadership; and]
389          [(m) publish an annual report on the commission's website.]
390          (2) The commission may:
391          (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
392     Rulemaking Act, to carry out the commission's duties under this part[.];
393          (b) assign duties related to indigent defense services to the office to assist the
394     commission with the commission's statutory duties; and
395          (c) request supplemental appropriations from the Legislature to address a deficit in the
396     Child Welfare Parental Defense Fund created in Section 78B-22-804.
397          Section 9. Section 78B-22-406 is amended to read:
398          78B-22-406. Indigent defense services grant program.
399          (1) The commission may award grants to supplement local spending by an indigent
400     defense system for indigent defense.
401          [(2) Commission grant money may be used for the following expenses:]
402          (2) The commission may use grant money:
403          (a) to assist an indigent defense system to provide indigent defense services that meet
404     the commission's minimum guidelines for the effective representation of indigent individuals;
405          (b) [the establishment and maintenance of] to establish and maintain local indigent
406     defense data collection systems;
407          (c) to provide indigent defense services in addition to [those] indigent defense services
408     that are currently being provided by an indigent defense system; [and]
409          (d) to provide training and continuing legal education for indigent defense service
410     providers[.]; and
411          (e) to pay for indigent defense resources and costs and expenses for parental defense
412     attorneys as described in Subsection 78B-22-804(2).
413          (3) To receive a grant from the commission, an indigent defense system shall
414     demonstrate to the commission's satisfaction that:
415          (a) the indigent defense system has incurred or reasonably anticipates incurring
416     expenses for indigent defense services that are in addition to the indigent defense system's
417     average annual spending on indigent defense services in the three fiscal years immediately
418     preceding the grant application; and
419          (b) a grant from the commission is necessary for the indigent defense system to meet
420     the commission's minimum guidelines for the effective representation of indigent individuals.
421          (4) The commission may revoke a grant if an indigent defense system fails to meet
422     requirements of the grant or any of the commission's minimum guidelines for the effective
423     representation of indigent individuals.
424          Section 10. Section 78B-22-451 is enacted to read:
425     
Part 4a. Office of Indigent Defense Services

426          78B-22-451. Office of Indigent Defense Services -- Creation.
427          There is created the Office of Indigent Defense Services within the State Commission
428     on Criminal and Juvenile Justice.
429          Section 11. Section 78B-22-452 is enacted to read:
430          78B-22-452. Duties of the office.
431          (1) The office shall:
432          (a) establish an annual budget for the office for the Indigent Defense Resources
433     Restricted Account created in Section 78B-22-405;
434          (b) assist the commission in performing the commission's statutory duties described in
435     this chapter;
436          (c) identify and collect data that is necessary for the commission to:
437          (i) aid, oversee, and review compliance by indigent defense systems with the
438     commission's minimum guidelines for the effective representation of indigent individuals; and
439          (ii) provide reports regarding the operation of the commission and the provision of
440     indigent defense services by indigent defense systems in the state;
441          (d) assist indigent defense systems by reviewing contracts and other agreements, to
442     ensure compliance with the commission's minimum guidelines for effective representation of
443     indigent individuals;
444          (e) establish procedures for the receipt and acceptance of complaints regarding the
445     provision of indigent defense services in the state;
446          (f) establish procedures to award grants to indigent defense systems under Section
447     78B-22-406 that are consistent with the commission's minimum guidelines;
448          (g) assist the commission in developing and reviewing advisory caseload guidelines
449     and procedures;
450          (h) investigate, audit, and review the provision of indigent defense services to ensure
451     compliance with the commission's minimum guidelines for the effective representation of
452     indigent individuals;
453          (i) administer the Child Welfare Parental Defense Program in accordance with Part 8,
454     Child Welfare Parental Defense Program;
455          (j) annually report to the governor, Legislature, Judiciary Interim Committee, and
456     Judicial Council, regarding:
457          (i) the operations of the commission;
458          (ii) the operations of the indigent defense systems in the state; and
459          (iii) compliance with the commission's minimum guidelines by indigent defense
460     systems receiving grants from the commission;
461          (k) submit recommendations to the commission for improving indigent defense
462     services in the state;
463          (l) publish an annual report on the commission's website; and
464          (m) perform all other duties assigned by the commission related to indigent defense
465     services.
466          (2) The office may enter into contracts and accept, allocate, and administer funds and
467     grants from any public or private person to accomplish the duties of the office.
468          (3) Any contract entered into under this part shall require that indigent defense services
469     are provided in a manner consistent with the commission's minimum guidelines implemented
470     under Section 78B-22-404.
471          Section 12. Section 78B-22-453, which is renumbered from Section 78B-22-403 is
472     renumbered and amended to read:
473          [78B-22-403].      78B-22-453. Director -- Qualifications -- Staff.
474          (1) The [commission] executive director of the State Commission on Criminal and
475     Juvenile Justice shall appoint a director to carry out the [following duties:] duties of the office
476     described in Section 78B-22-452.
477          [(a) establish an annual budget;]
478          [(b) assist the commission in performing the commission's statutory duties;]
479          [(c) assist the commission in developing and regularly reviewing advisory caseload
480     guidelines and procedures; and]
481          [(d) perform all other duties as assigned.]
482          (2) The director shall be an active member of the Utah State Bar with an appropriate
483     background and experience to serve as the full-time director.
484          (3) The director shall hire staff as necessary to carry out the duties of the [commission]
485     office as described in Section 78B-22-452, including:
486          (a) one individual who is an active member of the Utah State Bar to serve as a full-time
487     assistant director; and
488          (b) one individual with data collection and analysis skills [to carry out duties as
489     outlined in Subsection 78B-22-404(1)(c)].
490          [(4) The commission in appointing the director, and the director in hiring the assistant
491     director, shall give a preference to individuals]
492          (4) When appointing the director of the office under Subsection (1), the executive
493     director of the State Commission on Criminal and Juvenile Justice shall give preference to an
494     individual with experience in adult criminal defense, child welfare parental defense, or juvenile
495     delinquency defense.
496          (5) When hiring the assistant director, the director shall give preference to an
497     individual with experience in adult criminal defense, child welfare parental defense, or juvenile
498     delinquency defense.
499          Section 13. Section 78B-22-801 is enacted to read:
500     
Part 8. Child Welfare Parental Defense Program

501          78B-22-801. Definitions.
502          As used in this part:
503          (1) "Child welfare case" means a proceeding under Title 78A, Chapter 6, Part 3,
504     Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act.
505          (2) "Contracted parental defense attorney" means an attorney who represents an
506     indigent individual who is a parent in a child welfare case under a contract with the office or a
507     contributing county.
508          (3) "Contributing county" means a county that complies with this part for participation
509     in the Child Welfare Parental Defense Fund described in Section 78B-22-804.
510          (4) "Fund" means the Child Welfare Parental Defense Fund created in Section
511     78B-22-804.
512          (5) "Program" means the Child Welfare Parental Defense Program created in Section
513     78B-22-802.
514          Section 14. Section 78B-22-802, which is renumbered from Section 63M-7-211 is
515     renumbered and amended to read:
516          [63M-7-211].      78B-22-802. Child Welfare Parental Defense Program --
517     Creation -- Duties -- Annual report -- Budget.
518          [(1) As used in this section and Sections 63M-7-211.1 and 63M-7-211.2:]
519          [(a) "Child welfare case" means a proceeding under Title 78A, Chapter 6, Part 3,
520     Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act.]
521          [(b) "Commission" means the Commission on Criminal and Juvenile Justice created in
522     Section 63M-7-201.]
523          [(c) "Contracted parental defense attorney" means a parental defense attorney who is
524     under contract with the commission to provide parental defense in a child welfare case.]
525          [(d) "Executive director" means the executive director of the commission appointed
526     under Section 63M-7-203.]
527          [(e) "Fund" means the Child Welfare Parental Defense Fund established in Section
528     63M-7-211.2.]
529          [(f) "Parental defense attorney" means an attorney, law firm, or group of attorneys
530     who:]
531          [(i) are authorized to practice law in the state; and]
532          [(ii) provide legal representation under contract with the commission, or a county in the
533     state, to a parent who is a party in a child welfare case.]
534          [(g) "Program" means the Child Welfare Parental Defense Program created in this
535     section.]
536          [(2)] (1) There is created within the [commission] office the Child Welfare Parental
537     Defense Program.
538          [(3) The commission shall:]
539          [(a) administer and enforce this section;]
540          [(b) manage the operation and budget of the program;]
541          [(c) provide assistance and advice to parental defense attorneys;]
542          [(d) develop and provide educational and training programs for parental defense
543     attorneys; and]
544          [(e) provide information and advice to assist a parental defense attorney to comply with
545     the attorney's professional, contractual, and ethical duties.]
546          [(4) The commission may]
547          (2) (a) The office shall:
548          (i) administer and enforce the program in accordance with this part;
549          (ii) manage the operation and budget of the program;
550          (iii) develop and provide educational and training programs for contracted parental
551     defense attorneys; and
552          (iv) provide information and advice to assist a contracted parental defense attorney to
553     comply with the attorney's professional, contractual, and ethical duties.
554          (b) In administering the program, the office shall contract with:
555          [(a)] (i) a person who is qualified to perform the program duties under this section; and
556          [(b)] (ii) an attorney [authorized to practice law in the state], as an independent
557     contractor, [to serve as a parental defense attorney under this section.] in accordance with
558     Section 78B-22-803.
559          [(5) (a) On or before October 1 of each year, the executive director shall report to the
560     governor and the Child Welfare Legislative Oversight Panel regarding the preceding fiscal year
561     on the operations, activities, and goals of the program.]
562          [(b)] (3) (a) The [executive] director shall prepare a budget of:
563          (i) the administrative expenses for the program; and
564          (ii) the amount estimated to fund needed contracts and other costs.
565          [(c) The professional legislative staff may include summary data and nonidentifying
566     information in the staff's audits and reports to the Legislature.]
567          (b) On or before October 1 of each year, the director shall report to the governor and
568     the Child Welfare Legislative Oversight Panel regarding the preceding fiscal year on the
569     operations, activities, and goals of the program.
570          [(6) (a) (i) Notwithstanding Title 63G, Chapter 2, Government Records Access and
571     Management Act, and except as provided in Subsection (6)(b), a record of a contracted parental
572     defense attorney is protected and may not be released or made public upon subpoena, search
573     warrant, discovery proceedings, or otherwise.]
574          [(ii) A record of a contracted parental defense attorney is subject to legislative
575     subpoena, under Title 36, Chapter 14, Legislative Subpoena Powers.]
576          [(b) The Legislature shall maintain a record released in accordance with Subsection
577     (6)(a)(ii) as confidential.]     
578          Section 15. Section 78B-22-803, which is renumbered from Section 63M-7-211.1 is
579     renumbered and amended to read:
580          [63M-7-211.1].      78B-22-803. Child welfare parental defense contracts.
581          (1) (a) The [commission] office may enter into a contract with [a parental defense] an
582     attorney to provide indigent defense services for [an indigent] a parent who is the subject of a
583     petition alleging abuse, neglect, or dependency, and requires [a parental defense attorney
584     under] indigent defense services under Section 78A-6-1111.
585          (b) [Payment] The office shall make payment for the representation, costs, and
586     expenses of a contracted parental defense attorney [shall be made] from the Child Welfare
587     Parental Defense Fund in accordance with Section [63M-7-211.2] 78B-22-804.
588          [(c) The parental defense attorney shall maintain the minimum qualifications as
589     provided by this section.]
590          [(2) A contracted parental defense attorney shall:]
591          [(a) adequately prepare for and attend all court hearings, including initial and continued
592     shelter hearings and mediations;]
593          [(b) fully advise the client of the nature of the proceedings and of the client's rights,
594     communicate to the client any offers of settlement or compromise, and advise the client
595     regarding the reasonably foreseeable consequences of any course of action in the proceedings;]
596          [(c) be reasonably available to consult with the client outside of court proceedings;]
597          [(d) where attendance is reasonably necessary, attend meetings regarding the client's
598     case with representatives of one or more of the Division of Child and Family Services, the
599     Office of the Attorney General, or the Office of Guardian Ad Litem;]
600          [(e) represent the interest of the client at all stages of the proceedings before the trial
601     court, and on appeal as required by law; and]
602          [(f) participate in the training courses and otherwise maintain the standards described
603     in Subsection (4).]
604          [(3) If the commission enters into a contract with a firm to provide parental defense
605     attorney services under this section, the contract shall require that each attorney in the firm who
606     will provide representation of a parent in a child welfare case under the contract perform the
607     duties described in Subsection (2).]
608          [(4)] (2) (a) Except as [otherwise] provided in Subsection [(4)] (2)(b), a contracted
609     parental defense attorney shall:
610          (i) complete a basic training course provided by the [program] office;
611          (ii) provide parental defense services consistent with the commission's minimum
612     guidelines described in Section 78B-22-404;
613          [(ii)] (iii) have experience in child welfare cases; and
614          [(iii)] (iv) participate each calendar year in continuing legal education courses
615     providing no fewer than eight hours of instruction in child welfare law.
616          (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
617     commission may, by rule, exempt from the requirements of Subsection [(4)] (2)(a) an attorney
618     who has equivalent training or adequate experience.
619          Section 16. Section 78B-22-804, which is renumbered from Section 63M-7-211.2 is
620     renumbered and amended to read:
621          [63M-7-211.2].      78B-22-804. Child Welfare Parental Defense Fund --
622     Contracts for coverage by the Child Welfare Parental Defense Fund.
623          (1) There is created an expendable special revenue fund known as the "Child Welfare
624     Parental Defense Fund."
625          (2) Subject to availability, the [commission] office may make distributions from the
626     fund [as required in this section or Section 63M-7-211 or 63M-7-211.1] for the following
627     purposes:
628          (a) to pay for [the representation, costs, expert witness fees, and expenses of] indigent
629     defense resources for contracted parental defense attorneys [who are under contract with the
630     commission to provide parental defense in child welfare cases for an indigent parent that is the
631     subject of a petition alleging abuse, neglect, or dependency];
632          (b) for administrative costs [under this section or Section 63M-7-211 or 63M-7-211.1]
633     of the program; and
634          (c) for reasonable expenses directly related to the functioning of the program, including
635     training and travel expenses.
636          (3) The fund consists of:
637          (a) appropriations made to the fund by the Legislature;
638          (b) interest and earnings from the investment of fund money;
639          (c) proceeds deposited by [participating] contributing counties under this section; and
640          (d) private contributions to the fund.
641          (4) The state treasurer shall invest the money in the fund by following the procedures
642     and requirements of Title 51, Chapter 7, State Money Management Act.
643          (5) (a) If the [commission] office anticipates a deficit in the fund during a fiscal year:
644          (i) the commission [shall] may request an appropriation from the Legislature; and
645          (ii) the Legislature may fund the anticipated deficit through appropriation.
646          (b) If the anticipated deficit is not funded by the Legislature, the [commission] office
647     may request an interim assessment to participating counties as described in Subsection (6) to
648     fund the anticipated deficit.
649          (6) (a) A county legislative body and the [commission] office may annually enter into a
650     [written agreement] contract for the [commission] office to provide parental defense attorney
651     services in the contributing county out of the fund.
652          (b) The [agreement] contract described under Subsection (6)(a) shall:
653          (i) require the contributing county to pay into the fund an amount defined by a formula
654     established by the commission by rule under Title 63G, Chapter 3, Utah Administrative
655     Rulemaking Act; and
656          (ii) provide for revocation of the agreement for failure to pay an assessment on the due
657     date established by the commission by rule under Title 63G, Chapter 3, Utah Administrative
658     Rulemaking Act.
659          (7) (a) After the first year of operation of the fund, any contributing county that elects
660     to initiate participation in the fund, or reestablish participation in the fund after participation
661     was terminated, [shall be] is required to make an equity payment, in addition to the assessment
662     provided in Subsection (5).
663          (b) The commission shall determine the amount of the equity payment described in
664     Subsection (7)(a) by rule established by the commission under Title 63G, Chapter 3, Utah
665     Administrative Rulemaking Act.
666          (8) A contributing county that elects to withdraw from participation in the fund, or
667     whose participation in the fund is revoked due to failure to pay the contributing county's
668     assessment, as described in Subsection (6), when due, shall forfeit any right to any previously
669     paid assessment by the contributing county or coverage from the fund.
670          Section 17. Coordinating S.B. 175 with S.B. 139 -- Substantive and technical
671     amendments.
672          If this S.B. 175 and S.B. 139, Amendments to Indigent Defense, both pass and become
673     law, it is the intent of the Legislature that the Office of Legislative Research and General
674     Counsel shall prepare the Utah Code database for publication as follows:
675          (1) the amendments to Section 78B-22-451 in this bill supersede the amendments to
676     Section 78B-22-451 in S.B. 139;
677          (2) the amendments to Section 78B-22-403, renumbered and amended by this bill,
678     supersede the amendments to Section 78B-22-403, renumbered and amended by S.B. 139;
679          (3) the amendments to Section 78B-22-402 in this bill supersede the amendments to
680     Section 78B-22-402 in S.B. 139;
681          (4) the terminology in Subsection 78B-22-803(2)(a)(ii) in this bill is changed from
682     "minimum guidelines" to "core principles"; and
683          (5) Section 78B-22-452 is modified to read:
684          "78B-22-452. Duties of the office.
685          (1) The office shall:
686          (a) establish an annual budget for the Indigent Defense Resources Restricted Account
687     created in Section 78B-22-405;
688          (b) assist the commission in performing the commission's statutory duties described in
689     this chapter;
690          (c) identify and collect data that is necessary for the commission to:
691          (i) aid, oversee, and review compliance by indigent defense systems with the
692     commission's core principles for the effective representation of indigent individuals; and
693          (ii) provide reports regarding the operation of the commission and the provision of
694     indigent defense services by indigent defense systems in the state;
695          (d) assist indigent defense systems by reviewing contracts and other agreements to
696     ensure compliance with the commission's core principles for the effective representation of
697     indigent individuals;
698          (e) establish procedures for the receipt and acceptance of complaints regarding the
699     provision of indigent defense services in the state;
700          (f) establish procedures to award grants to indigent defense systems under Section
701     78B-22-406 that are consistent with the commission's core principles;
702          (g) assist the commission in developing and reviewing advisory caseload guidelines
703     and procedures;
704          (h) investigate, audit, and review the provision of indigent defense services to ensure
705     compliance with the commission's core principles for the effective representation of indigent
706     individuals;
707          (i) administer the Child Welfare Parental Defense Program in accordance with Part 8,
708     Child Welfare Parental Defense Program;
709          (j) annually report to the governor, Legislature, Judiciary Interim Committee, and
710     Judicial Council, regarding:
711          (i) the operations of the commission;
712          (ii) the operations of the indigent defense systems in the state; and
713          (iii) compliance with the commission's core principles by indigent defense systems
714     receiving grants from the commission;
715          (k) submit recommendations to the commission for improving indigent defense
716     services in the state;
717          (l) publish an annual report on the commission's website; and
718          (m) perform all other duties assigned by the commission related to indigent defense
719     services.
720          (2) The office may enter into contracts and accept, allocate, and administer funds and
721     grants from any public or private person to accomplish the duties of the office.
722          (3) Any contract entered into under this part shall require that indigent defense services
723     are provided in a manner consistent with the commission's core principles implemented under
724     Section 78B-22-404.".
725          Section 18. Coordinating S.B. 175 with S.B. 170 -- Substantive and technical
726     amendments.
727          If this S.B. 175 and S.B. 170, Indigent Defense Amendments, both pass and become
728     law, it is the intent of the Legislature that the Office of Legislative Research and General
729     Counsel shall prepare the Utah Code database for publication as follows:
730          (1) the amendments in Section 78B-22-451 in this bill supersede the amendments to
731     Section 78B-22-451 in S.B. 170;
732          (2) the amendments to Section 78B-22-403, as renumbered and amended by this bill,
733     supersede the amendments to Section 78B-22-403, renumbered and amended by S.B. 170;
734          (3) the amendments to Section 78B-22-402 in this bill supersede the amendments to
735     Section 78B-22-402 in S.B. 170;
736          (4) the terminology in Subsection 78B-22-803(2)(a)(ii) in this bill is changed from
737     "minimum guidelines" to "core principles"; and
738          (5) Section 78B-22-452 is modified to read:
739          "78B-22-452. Duties of the office.
740          (1) The office shall:
741          (a) establish an annual budget for the office for the Indigent Defense Resources
742     Restricted Account created in Section 78B-22-405;
743          (b) assist the commission in performing the commission's statutory duties described in
744     this chapter;
745          (c) identify and collect data that is necessary for the commission to:
746          (i) aid, oversee, and review compliance by indigent defense systems with the
747     commission's core principles for the effective representation of indigent individuals; and
748          (ii) provide reports regarding the operation of the commission and the provision of
749     indigent defense services by indigent defense systems in the state;
750          (d) assist indigent defense systems by reviewing contracts and other agreements, to
751     ensure compliance with the commission's core principles for effective representation of
752     indigent individuals;
753          (e) establish procedures for the receipt and acceptance of complaints regarding the
754     provision of indigent defense services in the state;
755          (f) establish procedures to award grants to indigent defense systems under Section
756     78B-22-406 that are consistent with the commission's core principles;
757          (g) create and enter into contracts consistent with Section 78B-22-454 to provide
758     indigent defense services for an indigent defense inmate who:
759          (i) is incarcerated in a state prison located in a county of the third, fourth, fifth, or sixth
760     class as defined in Section 17-50-501;
761          (ii) is charged with having committed a crime within that state prison; and
762          (iii) has been appointed counsel in accordance with Section 78B-22-203;
763          (h) assist the commission in developing and reviewing advisory caseload guidelines
764     and procedures;
765          (i) investigate, audit, and review the provision of indigent defense services to ensure
766     compliance with the commission's core principles for the effective representation of indigent
767     individuals;
768          (j) administer the Child Welfare Parental Defense Program in accordance with Part 8,
769     Child Welfare Parental Defense Program;
770          (k) annually report to the governor, Legislature, Judiciary Interim Committee, and
771     Judicial Council, regarding:
772          (i) the operations of the commission;
773          (ii) the operations of the indigent defense systems in the state; and
774          (iii) compliance with the commission's core principles by indigent defense systems
775     receiving grants from the commission;
776          (l) submit recommendations to the commission for improving indigent defense services
777     in the state;
778          (m) publish an annual report on the commission's website; and
779          (n) perform all other duties assigned by the commission related to indigent defense
780     services.
781          (2) The office may enter into contracts and accept, allocate, and administer funds and
782     grants from any public or private person to accomplish the duties of the office.
783          (3) Any contract entered into under this part shall require that indigent defense services
784     are provided in a manner consistent with the commission's core principles implemented under
785     Section 78B-22-404.".
786          Section 19. Coordinating S.B. 175 with S.B. 139 and S.B. 170 -- Substantive and
787     technical amendments.
788          If this S.B. 175 and S.B. 139, Amendments to Indigent Defense, and S.B. 170, Indigent
789     Defense Amendments, all pass and become law, it is the intent of the Legislature that the
790     Office of Legislative Research and General Counsel shall prepare the Utah Code database for
791     publication as follows:
792          (1) the amendments in Section 78B-22-451 in this bill supersede the amendments to
793     Section 78B-22-451 in S.B. 139 and S.B. 170;
794          (2) the amendments to Section 78B-22-403, as renumbered and amended by this bill,
795     supersede the amendments to Section 78B-22-403, renumbered and amended by S.B. 139 and
796     S.B. 170;
797          (3) the amendments to Section 78B-22-402 in this bill supersede the amendments to
798     Section 78B-22-402 in S.B. 139 and S.B. 170;
799          (4) the terminology in Subsection 78B-22-803(2)(a)(ii) in this bill is changed from
800     "minimum guidelines" to "core principles"; and
801          (5) Section 78B-22-452 is modified to read:
802          "78B-22-452. Duties of the office.
803          (1) The office shall:
804          (a) establish an annual budget for the office for the Indigent Defense Resources
805     Restricted Account created in Section 78B-22-405;
806          (b) assist the commission in performing the commission's statutory duties described in
807     this chapter;
808          (c) identify and collect data that is necessary for the commission to:
809          (i) aid, oversee, and review compliance by indigent defense systems with the
810     commission's core principles for the effective representation of indigent individuals; and
811          (ii) provide reports regarding the operation of the commission and the provision of
812     indigent defense services by indigent defense systems in the state;
813          (d) assist indigent defense systems by reviewing contracts and other agreements, to
814     ensure compliance with the commission's core principles for effective representation of
815     indigent individuals;
816          (e) establish procedures for the receipt and acceptance of complaints regarding the
817     provision of indigent defense services in the state;
818          (f) establish procedures to award grants to indigent defense systems under Section
819     78B-22-406 that are consistent with the commission's core principles;
820          (g) create and enter into contracts consistent with Section 78B-22-454 to provide
821     indigent defense services for an indigent defense inmate who:
822          (i) is incarcerated in a state prison located in a county of the third, fourth, fifth, or sixth
823     class as defined in Section 17-50-501;
824          (ii) is charged with having committed a crime within that state prison; and
825          (iii) has been appointed counsel in accordance with Section 78B-22-203;
826          (h) assist the commission in developing and reviewing advisory caseload guidelines
827     and procedures;
828          (i) investigate, audit, and review the provision of indigent defense services to ensure
829     compliance with the commission's core principles for the effective representation of indigent
830     individuals;
831          (j) administer the Child Welfare Parental Defense Program in accordance with Part 8,
832     Child Welfare Parental Defense Program;
833          (k) annually report to the governor, Legislature, Judiciary Interim Committee, and
834     Judicial Council, regarding:
835          (i) the operations of the commission;
836          (ii) the operations of the indigent defense systems in the state; and
837          (iii) compliance with the commission's core principles by indigent defense systems
838     receiving grants from the commission;
839          (l) submit recommendations to the commission for improving indigent defense services
840     in the state;
841          (m) publish an annual report on the commission's website; and
842          (n) perform all other duties assigned by the commission related to indigent defense
843     services.
844          (2) The office may enter into contracts and accept, allocate, and administer funds and
845     grants from any public or private person to accomplish the duties of the office.
846          (3) Any contract entered into under this part shall require that indigent defense services
847     are provided in a manner consistent with the commission's core principles implemented under
848     Section 78B-22-404.".