1     
PARENTAL DEFENSE AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: Cheryl K. Acton

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to parental representation in a child welfare case.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies definitions and terminology referring to "parental defense";
13          ▸     changes the name of the "Child Welfare Parental Defense Program" to the "Child
14     Welfare Parental Representation Program";
15          ▸     changes the name of the "Child Welfare Parental Defense Fund" to the "Child
16     Welfare Parental Representation Fund";
17          ▸     repeals provisions requiring the Utah Indigent Defense Commission to make
18     administrative rules regarding the Child Welfare Parental Representation Fund; and
19          ▸     makes technical and conforming changes.
20     Money Appropriated in this Bill:
21          This bill appropriates in fiscal year 2022:
22          ▸     to Governor's Office -- Indigent Defense Commission -- Child Welfare Parental
23     Representation Program, as an ongoing appropriation:
24               •     from General Fund, $9,000.
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          78B-22-102, as last amended by Laws of Utah 2020, Chapters 371, 392, and 395
30          78B-22-402, as last amended by Laws of Utah 2020, Chapters 352, 371, 373, 392, 395
31     and last amended by Coordination Clause, Laws of Utah 2020, Chapter 395
32          78B-22-404, as last amended by Laws of Utah 2020, Chapters 371, 392, and 395
33          78B-22-406, as last amended by Laws of Utah 2020, Chapters 371, 392, and 395
34          78B-22-452, as enacted by Laws of Utah 2020, Chapters 371, 392, 395 and last
35     amended by Coordination Clause, Laws of Utah 2020, Chapters 392, and 395
36          78B-22-453, as renumbered and amended by Laws of Utah 2020, Chapters 371, 392,
37     395 and last amended by Coordination Clause, Laws of Utah 2020, Chapters 392,
38     and 395
39          78B-22-801, as enacted by Laws of Utah 2020, Chapter 395
40          78B-22-802, as renumbered and amended by Laws of Utah 2020, Chapter 395
41          78B-22-803, as renumbered and amended by Laws of Utah 2020, Chapter 395 and last
42     amended by Coordination Clause, Laws of Utah 2020, Chapter 395
43          78B-22-804, as renumbered and amended by Laws of Utah 2020, Chapter 395
44     

45     Be it enacted by the Legislature of the state of Utah:
46          Section 1. Section 78B-22-102 is amended to read:
47          78B-22-102. Definitions.
48          As used in this chapter:
49          (1) "Account" means the Indigent Defense Resources Restricted Account created in
50     Section 78B-22-405.
51          (2) "Board" means the Indigent Defense Funds Board created in Section 78B-22-501.
52          (3) "Commission" means the Utah Indigent Defense Commission created in Section
53     78B-22-401.
54          (4) "Child welfare case" means a proceeding under Title 78A, Chapter 6, Part 3,
55     Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act.
56          [(4)] (5) "Director" means the director of the Office of Indigent Defense Services,
57     created in Section 78B-22-451, who is appointed in accordance with Section 78B-22-453.
58          [(5)] (6) (a) "Indigent defense resources" means the resources necessary to provide an
59     effective defense for an indigent individual, including the costs for a competent investigator,
60     expert witness, scientific or medical testing, transcripts, and printing briefs.
61          (b) "Indigent defense resources" does not include an indigent defense service provider.
62          [(6)] (7) "Indigent defense service provider" means an attorney or entity appointed to
63     represent an indigent individual pursuant to:
64          (a) a contract with an indigent defense system to provide indigent defense services; or
65          (b) an order issued by the court under Subsection 78B-22-203(2)(a).
66          [(7)] (8) "Indigent defense services" means:
67          (a) the representation of an indigent individual by an indigent defense service provider;
68     and
69          (b) the provision of indigent defense resources for an indigent individual.
70          [(8)] (9) "Indigent defense system" means:
71          (a) a city or town that is responsible for providing indigent defense services;
72          (b) a county that is responsible for providing indigent defense services in the district
73     court, juvenile court, and the county's justice courts; or
74          (c) an interlocal entity, created pursuant to Title 11, Chapter 13, Interlocal Cooperation
75     Act, that is responsible for providing indigent defense services according to the terms of an
76     agreement between a county, city, or town.
77          [(9)] (10) "Indigent individual" means:
78          (a) a minor who is:
79          (i) arrested and admitted into detention for an offense under Section 78A-6-103;
80          (ii) charged by petition or information in the juvenile or district court; or
81          (iii) described in this Subsection (9)(a), who is appealing an adjudication or other final
82     court action; and
83          (b) an individual listed in Subsection 78B-22-201(1) who is found indigent pursuant to
84     Section 78B-22-202.
85          [(10)] (11) "Minor" means the same as that term is defined in Section 78A-6-105.
86          [(11)] (12) "Office" means the Office of Indigent Defense Services created in Section
87     78B-22-451.
88          [(12)] (13) "Participating county" means a county that complies with this chapter for
89     participation in the Indigent Aggravated Murder Defense Trust Fund as provided in Sections
90     78B-22-702 and 78B-22-703.
91          Section 2. Section 78B-22-402 is amended to read:
92          78B-22-402. Commission members -- Member qualifications -- Terms -- Vacancy.
93          (1) (a) The commission is composed of 15 members.
94          (b) The governor, with the advice and consent of the Senate, and in accordance with
95     Title 63G, Chapter 24, Part 2, Vacancies, shall appoint the following 11 members:
96          (i) two practicing criminal defense attorneys recommended by the Utah Association of
97     Criminal Defense Lawyers;
98          (ii) one attorney practicing in juvenile delinquency defense recommended by the Utah
99     Association of Criminal Defense Lawyers;
100          (iii) one attorney [practicing in the area of parental defense] who represents parents in
101     child welfare cases, recommended by an entity funded under the Child Welfare Parental
102     [Defense] Representation Program created in Section 78B-22-802;
103          (iv) one attorney representing minority interests recommended by the Utah Minority
104     Bar Association;
105          (v) one member recommended by the Utah Association of Counties from a county of
106     the first or second class;
107          (vi) one member recommended by the Utah Association of Counties from a county of
108     the third through sixth class;
109          (vii) a director of a county public defender organization recommended by the Utah
110     Association of Criminal Defense Lawyers;
111          (viii) two members recommended by the Utah League of Cities and Towns from its
112     membership; and
113          (ix) one retired judge recommended by the Judicial Council.
114          (c) The speaker of the House of Representatives and the president of the Senate shall
115     appoint two members of the Utah Legislature, one from the House of Representatives and one
116     from the Senate.
117          (d) The Judicial Council shall appoint a member from the Administrative Office of the
118     Courts.
119          (e) The executive director of the State Commission on Criminal and Juvenile Justice or
120     the executive director's designee is a member of the commission.
121          (2) A member appointed by the governor shall serve a four-year term, except as
122     provided in Subsection (3).
123          (3) The governor shall stagger the initial terms of appointees so that approximately half
124     of the members appointed by the governor are appointed every two years.
125          (4) A member appointed to the commission shall have significant experience in
126     indigent criminal defense , [parental defense] representing parents in child welfare cases, or in
127     juvenile defense in delinquency proceedings or have otherwise demonstrated a strong
128     commitment to providing effective representation in indigent defense services.
129          (5) An individual who is currently employed solely as a criminal prosecuting attorney
130     may not serve as a member of the commission .
131          (6) A commission member shall hold office until the member's successor is appointed.
132          (7) The commission may remove a member for incompetence, dereliction of duty,
133     malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.
134          (8) If a vacancy occurs in the membership for any reason, a replacement shall be
135     appointed for the remaining unexpired term in the same manner as the original appointment.
136          (9) (a) The commission shall elect annually a chair from the commission's membership
137     to serve a one-year term.
138          (b) A commission member may not serve as chair of the commission for more than
139     three consecutive terms.
140          (10) A member may not receive compensation or benefits for the member's service, but
141     may receive per diem and travel expenses in accordance with:
142          (a) Section 63A-3-106;
143          (b) Section 63A-3-107; and
144          (c) rules made by the Division of Finance in accordance with Sections 63A-3-106 and
145     63A-3-107.
146          (11) (a) A majority of the members of the commission constitutes a quorum.
147          (b) If a quorum is present, the action of a majority of the voting members present
148     constitutes the action of the commission.
149          (c) A member shall comply with the conflict of interest provisions described in Title
150     63G, Chapter 24, Part 3, Conflicts of Interest.
151          Section 3. Section 78B-22-404 is amended to read:
152          78B-22-404. Powers and duties of the commission.
153          (1) The commission shall:
154          (a) adopt core principles for an indigent defense system to ensure the effective
155     representation of indigent individuals consistent with the requirements of the United States
156     Constitution, the Utah Constitution, and the Utah Code, which principles at a minimum shall
157     address the following:
158          (i) an indigent defense system shall ensure that in providing indigent defense services:
159          (A) an indigent individual receives conflict-free indigent defense services; and
160          (B) there is a separate contract for each type of indigent defense service; and
161          (ii) an indigent defense system shall ensure an indigent defense service provider has:
162          (A) the ability to exercise independent judgment without fear of retaliation and is free
163     to represent an indigent individual based on the indigent defense service provider's own
164     independent judgment;
165          (B) adequate access to indigent defense resources;
166          (C) the ability to provide representation to accused individuals in criminal cases at the
167     critical stages of proceedings, and at all stages to indigent individuals in juvenile delinquency
168     and child welfare proceedings;
169          (D) a workload that allows for sufficient time to meet with clients, investigate cases,
170     file appropriate documents with the courts, and otherwise provide effective assistance of
171     counsel to each client;
172          (E) adequate compensation without financial disincentives;
173          (F) appropriate experience or training in the area for which the indigent defense service
174     provider is representing indigent individuals;
175          (G) compensation for legal training and education in the areas of the law relevant to the
176     types of cases for which the indigent defense service provider is representing indigent
177     individuals; and
178          (H) the ability to meet the obligations of the Utah Rules of Professional Conduct,
179     including expectations on client communications and managing conflicts of interest;
180          (b) encourage and aid indigent defense systems in the state in the regionalization of
181     indigent defense services to provide for effective and efficient representation to the indigent
182     individuals;
183          (c) emphasize the importance of ensuring constitutionally effective indigent defense
184     services;
185          (d) encourage members of the judiciary to provide input regarding the delivery of
186     indigent defense services; and
187          (e) oversee individuals and entities involved in providing indigent defense services.
188          (2) The commission may:
189          (a) make rules in accordance with Title 63G, Chapter 3, Utah Administrative
190     Rulemaking Act, to carry out the commission's duties under this part;
191          (b) assign duties related to indigent defense services to the office to assist the
192     commission with the commission's statutory duties;
193          (c) request supplemental appropriations from the Legislature to address a deficit in the
194     Indigent Inmate Trust Fund created in Section 78B-22-455; and
195          (d) request supplemental appropriations from the Legislature to address a deficit in the
196     Child Welfare Parental [Defense] Representation Fund created in Section 78B-22-804.
197          Section 4. Section 78B-22-406 is amended to read:
198          78B-22-406. Indigent defense services grant program.
199          (1) The commission may award grants:
200          (a) to supplement local spending by an indigent defense system for indigent defense
201     services; and
202          (b) for contracts to provide indigent defense services for appeals from juvenile court
203     proceedings in a county of the third, fourth, fifth, or sixth class.
204          (2) The commission may use grant money:
205          (a) to assist an indigent defense system to provide indigent defense services that meet
206     the commission's core principles for the effective representation of indigent individuals;
207          (b) to establish and maintain local indigent defense data collection systems;
208          (c) to provide indigent defense services in addition to indigent defense services that are
209     currently being provided by an indigent defense system;
210          (d) to provide training and continuing legal education for indigent defense service
211     providers;
212          (e) to assist indigent defense systems with appeals from juvenile court proceedings;
213          (f) to pay for indigent defense resources and costs and expenses for parental [defense]
214     representation attorneys as described in Subsection 78B-22-804(2); and
215          (g) to reimburse an indigent defense system for the cost of providing indigent defense
216     services in an action initiated by a private party under Title 78A, Chapter 6, Part 5, Termination
217     of Parental Rights, if the indigent defense system has complied with the commission's policies
218     and procedures for reimbursement.
219          (3) To receive a grant from the commission, an indigent defense system shall
220     demonstrate to the commission's satisfaction that:
221          (a) the indigent defense system has incurred or reasonably anticipates incurring
222     expenses for indigent defense services that are in addition to the indigent defense system's
223     average annual spending on indigent defense services in the three fiscal years immediately
224     preceding the grant application; and
225          (b) a grant from the commission is necessary for the indigent defense system to meet
226     the commission's core principles for the effective representation of indigent individuals.
227          (4) The commission may revoke a grant if an indigent defense system fails to meet
228     requirements of the grant or any of the commission's core principles for the effective
229     representation of indigent individuals.
230          Section 5. Section 78B-22-452 is amended to read:
231          78B-22-452. Duties of the office.
232          (1) The office shall:
233          (a) establish an annual budget for the office for the Indigent Defense Resources
234     Restricted Account created in Section 78B-22-405;
235          (b) assist the commission in performing the commission's statutory duties described in
236     this chapter;
237          (c) identify and collect data that is necessary for the commission to:
238          (i) aid, oversee, and review compliance by indigent defense systems with the
239     commission's core principles for the effective representation of indigent individuals; and
240          (ii) provide reports regarding the operation of the commission and the provision of
241     indigent defense services by indigent defense systems in the state;
242          (d) assist indigent defense systems by reviewing contracts and other agreements, to
243     ensure compliance with the commission's core principles for effective representation of
244     indigent individuals;
245          (e) establish procedures for the receipt and acceptance of complaints regarding the
246     provision of indigent defense services in the state;
247          (f) establish procedures to award grants to indigent defense systems under Section
248     78B-22-406 that are consistent with the commission's core principles;
249          (g) create and enter into contracts consistent with Section 78B-22-454 to provide
250     indigent defense services for an indigent defense inmate who:
251          (i) is incarcerated in a state prison located in a county of the third, fourth, fifth, or sixth
252     class as [defined] classified in Section 17-50-501;
253          (ii) is charged with having committed a crime within that state prison; and
254          (iii) has been appointed counsel in accordance with Section 78B-22-203;
255          (h) assist the commission in developing and reviewing advisory caseload guidelines
256     and procedures;
257          (i) investigate, audit, and review the provision of indigent defense services to ensure
258     compliance with the commission's core principles for the effective representation of indigent
259     individuals;
260          (j) administer the Child Welfare Parental [Defense] Representation Program in
261     accordance with Part 8, Child Welfare Parental [Defense] Representation Program;
262          (k) annually report to the governor, Legislature, Judiciary Interim Committee, and
263     Judicial Council, regarding:
264          (i) the operations of the commission;
265          (ii) the operations of the indigent defense systems in the state; and
266          (iii) compliance with the commission's core principles by indigent defense systems
267     receiving grants from the commission;
268          (l) submit recommendations to the commission for improving indigent defense services
269     in the state;
270          (m) publish an annual report on the commission's website; and
271          (n) perform all other duties assigned by the commission related to indigent defense
272     services.
273          (2) The office may enter into contracts and accept, allocate, and administer funds and
274     grants from any public or private person to accomplish the duties of the office.
275          (3) Any contract entered into under this part shall require that indigent defense services
276     are provided in a manner consistent with the commission's core principles implemented under
277     Section 78B-22-404.
278          Section 6. Section 78B-22-453 is amended to read:
279          78B-22-453. Director -- Qualifications -- Staff.
280          (1) The executive director of the State Commission on Criminal and Juvenile Justice
281     shall appoint a director to carry out the duties of the office described in Section 78B-22-452.
282          (2) The director shall be an active member of the Utah State Bar with an appropriate
283     background and experience to serve as the full-time director.
284          (3) The director shall hire staff as necessary to carry out the duties of the office as
285     described in Section 78B-22-452, including:
286          (a) one individual who is an active member of the Utah State Bar to serve as a full-time
287     assistant director; and
288          (b) one individual with data collection and analysis skills.
289          (4) When appointing the director of the office under Subsection (1), the executive
290     director of the State Commission on Criminal and Juvenile Justice shall give preference to an
291     individual with experience in adult criminal defense, representing parents in child welfare
292     [parental defense] cases, or in juvenile delinquency defense.
293          (5) When hiring the assistant director, the director shall give preference to an
294     individual with experience in adult criminal defense, representing parents in child welfare
295     [parental defense] cases, or in juvenile delinquency defense.
296          Section 7. Section 78B-22-801 is amended to read:
297     
Part 8. Child Welfare Parental Representation Program

298          78B-22-801. Definitions.
299          As used in this part:
300          [(1) "Child welfare case" means a proceeding under Title 78A, Chapter 6, Part 3,
301     Abuse, Neglect, and Dependency Proceedings, or Part 5, Termination of Parental Rights Act.]
302          [(2)] (1) "Contracted parental [defense] representation attorney" means an attorney who
303     represents an indigent individual who is a parent in a child welfare case under a contract with
304     the office or a contributing county.
305          [(3)] (2) "Contributing county" means a county that complies with this part for
306     participation in the [Child Welfare Parental Defense Fund] fund described in Section
307     78B-22-804.
308          [(4)] (3) "Fund" means the Child Welfare Parental [Defense] Representation Fund
309     created in Section 78B-22-804.
310          [(5)] (4) "Program" means the Child Welfare Parental [Defense] Representation
311     Program created in Section 78B-22-802.
312          Section 8. Section 78B-22-802 is amended to read:
313          78B-22-802. Child Welfare Parental Representation Program -- Creation --
314     Duties -- Annual report -- Budget.
315          (1) There is created within the office the Child Welfare Parental [Defense]
316     Representation Program.
317          (2) (a) The office shall:
318          (i) administer and enforce the program in accordance with this part;
319          (ii) manage the operation and budget of the program;
320          (iii) develop and provide educational and training programs for contracted parental
321     [defense] representation attorneys; and
322          (iv) provide information and advice to assist a contracted parental [defense]
323     representation attorney to comply with the attorney's professional, contractual, and ethical
324     duties.
325          (b) In administering the program, the office shall contract with:
326          (i) a person who is qualified to perform the program duties under this section; and
327          (ii) an attorney, as an independent contractor, in accordance with Section 78B-22-803.
328          (3) (a) The director shall prepare a budget of:
329          (i) the administrative expenses for the program; and
330          (ii) the amount estimated to fund needed contracts and other costs.
331          (b) On or before October 1 of each year, the director shall report to the governor and
332     the Child Welfare Legislative Oversight Panel regarding the preceding fiscal year on the
333     operations, activities, and goals of the program.
334          Section 9. Section 78B-22-803 is amended to read:
335          78B-22-803. Child welfare parental representation contracts.
336          (1) (a) The office may enter into a contract with an attorney to provide indigent defense
337     services for a parent who is the subject of a petition alleging abuse, neglect, or dependency, and
338     requires indigent defense services under Section 78A-6-1111.
339          (b) The office shall make payment for the representation, costs, and expenses of a
340     contracted parental [defense] representation attorney from the [Child Welfare Parental Defense
341     Fund] fund in accordance with Section 78B-22-804.
342          (2) (a) Except as provided in Subsection (2)(b), a contracted parental [defense]
343     representation attorney shall:
344          (i) complete a basic training course provided by the office;
345          (ii) provide parental [defense] representation services consistent with the commission's
346     core principles described in Section 78B-22-404;
347          (iii) have experience in child welfare cases; and
348          (iv) participate each calendar year in continuing legal education courses providing no
349     fewer than eight hours of instruction in child welfare law.
350          (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
351     commission may, by rule, exempt from the requirements of Subsection (2)(a) an attorney who
352     has equivalent training or adequate experience.
353          Section 10. Section 78B-22-804 is amended to read:
354          78B-22-804. Child Welfare Parental Representation Fund -- Contracts for
355     coverage by the fund.
356          (1) There is created an expendable special revenue fund known as the "Child Welfare
357     Parental [Defense] Representation Fund."
358          (2) Subject to availability, the office may make distributions from the fund for the
359     following purposes:
360          (a) to pay for indigent defense resources for contracted parental [defense]
361     representation attorneys;
362          (b) for administrative costs of the program; and
363          (c) for reasonable expenses directly related to the functioning of the program, including
364     training and travel expenses.
365          (3) The fund consists of:
366          (a) appropriations made to the fund by the Legislature;
367          (b) interest and earnings from the investment of fund money;
368          (c) proceeds deposited by contributing counties under this section; and
369          (d) private contributions to the fund.
370          (4) The state treasurer shall invest the money in the fund by following the procedures
371     and requirements of Title 51, Chapter 7, State Money Management Act.
372          (5) (a) If the office anticipates a deficit in the fund during a fiscal year:
373          (i) the commission may request an appropriation from the Legislature; and
374          (ii) the Legislature may fund the anticipated deficit through appropriation.
375          (b) If the anticipated deficit is not funded by the Legislature under Subsection (5)(a),
376     the office may request an interim assessment [to participating] from contributing counties as
377     described in Subsection (6) to fund the anticipated deficit.
378          (6) (a) A county legislative body and the office may annually enter into a contract for
379     the office to provide [parental defense attorney services] indigent defense services for a parent
380     in a child welfare case in the [contributing] county out of the fund.
381          (b) [The] A contract described [under] in Subsection (6)(a) shall:
382          (i) require the contributing county described in Subsection (6)(a) to pay into the fund
383     an amount defined by a formula established by the commission [by rule under Title 63G,
384     Chapter 3, Utah Administrative Rulemaking Act]; and
385          (ii) provide for revocation of the [agreement] contract for the contributing county's
386     failure to pay [an] the assessment described in Subsection (5) on the due date established by the
387     commission [by rule under Title 63G, Chapter 3, Utah Administrative Rulemaking Act].
388          (7) [(a)] After the first year of operation of the fund, [any] a contributing county that
389     [elects] enters into a contract under Subsection (6) to initiate or reestablish participation in the
390     fund[, or reestablish participation in the fund after participation was terminated,] is required to
391     make an equity payment in the amount determined by the commission, in addition to the
392     assessment [provided] described in Subsection (5).
393          [(b) The commission shall determine the amount of the equity payment described in
394     Subsection (7)(a) by rule established by the commission under Title 63G, Chapter 3, Utah
395     Administrative Rulemaking Act.]
396          (8) A contributing county that [elects to withdraw] withdraws from participation in the
397     fund, or whose participation in the fund is revoked [due to] as described in Subsection (6) for
398     failure to pay the contributing county's assessment[, as described in Subsection (6), when due,]
399     when due, shall forfeit any right to any previously paid assessment by the contributing county
400     or coverage from the fund.
401          Section 11. Appropriation.
402          The following sums of money are appropriated for the fiscal year beginning July 1,
403     2021, and ending June 30, 2022. These are additions to amounts previously appropriated for
404     fiscal year 2022. Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures
405     Act, the Legislature appropriates the following sums of money from the funds or accounts
406     indicated for the use and support of the government of the state of Utah.
407     ITEM 1
408          To Governor's Office -- Indigent Defense Commission
409               From General Fund
$9,000

410               Schedule of Programs:
411                    Child Welfare Parental Representation Program     $9,000
412          The Legislature intends that:
413          (1) the appropriations under this item be used to provide additional technological
414     support for educational and training programs developed for parental defense attorneys under
415     Section 78B-22-802; and
416          (2) if this S.B. 90 passes and becomes law, the Division of Finance shall recognize the
417     Child Welfare Parental Defense Program as the Child Welfare Parental Representation
418     Program.