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Second Substitute H.B. 102
Senator L. Alma Mansell proposes to substitute the following bill:
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PARENTAL RIGHTS AMENDMENTS
2
2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Nora B. Stephens
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AN ACT RELATING TO CHILD WELFARE AND EDUCATION; REQUIRING PARENTAL
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PERMISSION FOR SPECIFIED IN-HOME PRESCHOOL PROGRAMS; REQUIRING DCFS
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TO ESTABLISH FAMILY IMPACT STATEMENTS WITH REGARD TO EACH OF ITS
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POLICIES OR RULES; DESCRIBING PARENTAL RIGHTS; LIMITING CERTAIN
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INVESTIGATIONS OF DCFS; REQUIRING SPECIALIZED REVIEW PRIOR TO REMOVAL
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OF CHILDREN UNDER CERTAIN CIRCUMSTANCES; AMENDING PARENTAL
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NOTIFICATION REQUIREMENTS; CLARIFYING THAT SPECIFIED INVESTIGATION
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STANDARDS ARE INTENDED TO BE POST-REMOVAL; AMENDING PROVISIONS
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REGARDING PARENT AND FOSTER PARENT INPUT IN TREATMENT PLANS;
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AMENDING SHELTER HEARING PROVISIONS; AND PROVIDING AN EFFECTIVE DATE.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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62A-4a-201, as last amended by Chapter 274, Laws of Utah 1998
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62A-4a-202.1, as last amended by Chapter 274, Laws of Utah 1998
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62A-4a-202.2, as renumbered and amended by Chapter 302, Laws of Utah 1995
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62A-4a-202.3, as last amended by Chapters 13 and 274, Laws of Utah 1998
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62A-4a-205 (Effective 07/01/00), as last amended by Chapter 121, Laws of Utah 1999
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62A-4a-409, as last amended by Chapter 274, Laws of Utah 1998
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78-3a-301, as last amended by Chapter 274, Laws of Utah 1998
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78-3a-306, as last amended by Chapter 99, Laws of Utah 1999
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ENACTS:
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53A-1a-105.5, Utah Code Annotated 1953
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62A-4a-119, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
53A-1a-105.5
is enacted to read:
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53A-1a-105.5. Parental permission required for specified in-home programs --
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Exceptions.
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(1) The State Board of Education, local school boards, school districts, and public schools
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are prohibited from requiring infant or preschool in-home literacy or other educational or parenting
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programs without obtaining parental permission in each individual case.
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(2) This section does not prohibit the Division of Child and Family Services, within the
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Department of Human Services, from providing or arranging for family preservation or other
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statutorily provided services in accordance with Title 62A, Chapter 4a, or any other in-home
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services that have been court ordered, pursuant to Title 62A, Chapter 4a, or Title 78, Chapter 3a.
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Section 2.
Section
62A-4a-119
is enacted to read:
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62A-4a-119. Division required to produce "family impact statement" with regard to
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all policies, procedures, and rules.
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Beginning May 1, 2000, whenever the division establishes a rule, in accordance with Title
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63, Chapter 46a, Utah Administrative Rulemaking Act, or the board establishes any policy in
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accordance with its statutory authority, those processes shall include an assessment of the impact
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of that rule or policy on families. Those assessments shall determine the impact the rule or policy
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on the authority of parents to oversee the care, supervision, upbringing, and education of children
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in the parents' custody. The division shall publish a family impact statement describing those
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assessments and determinations, within 90 days of the establishment of each rule or policy.
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Section 3.
Section
62A-4a-201
is amended to read:
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62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
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state.
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(1) (a) Courts have recognized a general presumption that it is in the best interest and
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welfare of a child to be raised under the care and supervision of his natural parents. A child's need
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for a normal family life in a permanent home, and for positive, nurturing family relationships will
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usually best be met by his natural parents. Additionally, the integrity of the family unit, and the
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right of parents to conceive and raise their children have found protection in the due process clause
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of the Fourteenth Amendment to the United States Constitution. The right of a fit, competent
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parent to raise his child has long been protected by the laws and Constitution of this state and of
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the United States.
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(b) It is the public policy of this state that parents retain the fundamental right and duty to
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exercise primary control over the care, supervision, upbringing, and education of their children
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who are in their custody.
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(2) [As] It is also the public policy of this state that children have the right to protection
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from abuse and neglect, and that the state retains a compelling interest in investigating,
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prosecuting, and punishing abuse and neglect, as defined in this chapter, and in Title 78, Chapter
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3a. Therefore, as a counterweight to parental rights, the state, as parens patriae, has an interest in
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and responsibility to protect children whose parents abuse them or do not adequately provide for
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their welfare. There are circumstances where a parent's conduct or condition is a substantial
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departure from the norm and the parent is unable or unwilling to render safe and proper parental
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care and protection. Under those circumstances, the welfare and protection of children is the
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consideration of paramount importance.
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(3) When the division intervenes on behalf of an abused, neglected, or dependent child,
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it shall take into account the child's need for protection from immediate harm. Throughout its
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involvement, the division shall [attempt to] utilize the least intrusive means available to protect
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a child, in an effort to ensure that children are brought up in stable, permanent families, rather than
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in temporary foster placements under the supervision of the state.
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(4) When circumstances within the family pose a threat to the child's safety or welfare, the
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state's interest in the child's welfare is paramount to the rights of a parent. The division may obtain
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custody of the child for a planned period and place him in a safe environment, in accordance with
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the requirements of Title 78, Chapter 3a, Part 3, Abuse, Neglect, and Dependency Proceedings.
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(5) In determining and making "reasonable efforts" with regard to a child, pursuant to the
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provisions of Section
62A-4a-203
and keeping with the presumptions described in Subsection (1),
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both the division's and the court's paramount concern shall be the child's health, safety, and
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welfare.
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(6) In cases where actual sexual abuse, abandonment, or serious physical abuse or neglect
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are involved, the state has no duty to make "reasonable efforts" or to, in any other way, attempt to
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maintain a child in his home, provide reunification services, or to attempt to rehabilitate the
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offending parent or parents. This Subsection (6) does not exempt the division from providing
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court-ordered services.
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(7) (a) It is the division's obligation, under federal law, to achieve permanency for children
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who are abused, neglected, or dependent. If the use or continuation of "reasonable efforts," as
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described in Subsections (5) and (6), is determined to be inconsistent with the permanency plan
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for a child, then measures shall be taken, in a timely manner, to place the child in accordance with
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the permanency plan, and to complete whatever steps are necessary to finalize the permanent
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placement of the child.
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(b) If, because of his conduct or condition, a parent is determined to be unfit or
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incompetent based on the grounds for termination of parental rights described in Title 78, Chapter
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3a, Part 4, Termination of Parental Rights Act, the welfare and best interest of the child is of
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paramount importance, and shall govern in determining whether that parent's rights should be
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terminated.
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Section 4.
Section
62A-4a-202.1
is amended to read:
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62A-4a-202.1. Taking a child into protective custody -- Peace officer -- Division of
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Child and Family Services caseworker.
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(1) Any peace officer may, without a warrant, take a minor into protective custody when
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the officer has substantial cause to believe that any of the factors described in Section
78-3a-301
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exist.
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(2) (a) A child welfare worker within the Division of Child and Family Services may take
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and maintain protective custody of a minor, without a warrant, in accordance with the requirements
109
of this section and Section
78-3a-301
when accompanied by a peace officer, or without a peace
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officer, when a peace officer is not reasonably available.
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(b) If possible, consistent with the child's safety and welfare, before taking a child into
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protective custody, the worker shall also determine whether there are services reasonably available
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to the worker which, if provided to the minor's parent or to the minor, would eliminate the need
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to remove the minor from the custody of his parent in accordance with the provisions and
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limitations of Section
78-3a-301
. If those services are reasonably available, they shall be utilized.
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In determining whether services are reasonably available, and in making reasonable efforts to
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provide those services, the child's health, safety, and welfare shall be the worker's paramount
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concern.
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(c) (i) Except as provided in Subsection (2)(c)(ii), if a child welfare worker determines that
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there is substantial cause to believe that one or more of the factors described in Section
78-3a-301
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exist and determines, pursuant to Subsection (2)(b), that services are not reasonably available to
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eliminate the need for removal, the child welfare worker may proceed with removal of the child
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after the worker has reviewed the reasons for removal and other available options with a family
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services specialist within the division.
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(ii) The provisions of Subsection (2)(c)(i) requiring a family services specialist's review
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prior to removal of a child do not apply and are not necessary if, in the child welfare worker's
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opinion, that process would create a delay that may endanger the health, safety, or welfare of the
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child.
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(iii) From its existing staff, the division shall train and appoint family services specialists
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who are available 24 hours a day, seven days a week, to perform the duties described in Subsection
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(2)(c)(i).
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Section 5.
Section
62A-4a-202.2
is amended to read:
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62A-4a-202.2. Notice to parent upon removal of child -- Written statement of
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procedural rights and preliminary proceedings.
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(1) Any peace officer or caseworker who takes a minor into protective custody pursuant
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to Section
62A-4a-202.1
shall immediately inform, through the most efficient means available, the
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parent, guardian, or responsible relative:
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(a) that the minor has been taken into protective custody;
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(b) the reasons for removal and placement in protective custody;
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[(b)] (c) that a written statement is available that explains the parent's procedural rights and
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the preliminary stages of the investigation and shelter hearing; and
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[(c)] (d) of a telephone number where [he] the parent may access further information.
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(2) The attorney general's office shall adopt, print, and distribute a form for the written
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statement described in Subsection (1)[(b)](c). The statement shall be made available to the
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division and for distribution in schools, health care facilities, local police and sheriff's offices, the
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division, and any other appropriate office within the Department of Human Services. The notice
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shall be in simple language and include at least the following information:
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(a) the conditions under which [the] a minor may be released, hearings that may be
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required, and the means by which the parent may access further specific information about [the]
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a minor's case and conditions of protective and temporary custody; and
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(b) the rights of [the] a minor and of the parent or guardian to legal counsel and to appeal.
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(3) If a good faith attempt was made by the peace officer or caseworker to notify the parent
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or guardian in accordance with the requirements of Subsection (1), failure to notify shall be
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considered to be due to circumstances beyond the control of the peace officer or caseworker and
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may not be construed to permit a new defense to any juvenile or judicial proceeding or to interfere
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with any rights, procedures, or investigations provided for by this chapter or Title 62A.
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Section 6.
Section
62A-4a-202.3
is amended to read:
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62A-4a-202.3. Post-removal investigation standards -- Substantiation of reports --
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Child in protective custody.
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(1) When a child is taken into protective custody in accordance with Sections
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62A-4a-202.1
and
78-3a-301
, the Division of Child and Family Services shall immediately
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[investigate] initiate a post-removal investigation of the circumstances of the minor and the facts
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surrounding his being taken into protective custody.
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(2) The division's post-removal investigation shall include, among other actions necessary
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to meet reasonable professional standards:
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(a) a search for and review of any records of past reports of abuse or neglect involving the
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same child, any sibling or other child residing in that household, and the alleged perpetrator;
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(b) with regard to a child who is five years of age or older, a personal interview with the
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child outside of the presence of the alleged perpetrator, conducted in accordance with the
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requirements of Subsection (6);
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(c) an interview with the child's natural parents or other guardian, unless their whereabouts
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are unknown;
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(d) an interview with the person who reported the abuse, unless anonymous;
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(e) where possible and appropriate, interviews with other third parties who have had direct
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contact with the child, including school personnel and the child's health care provider;
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(f) an unscheduled visit to the child's home; and
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(g) if appropriate and indicated in any case alleging physical injury, sexual abuse, or failure
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to meet the child's medical needs, a medical examination. That examination shall be obtained no
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later than 24 hours after the child was placed in protective custody.
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(3) (a) [The] With regard to both pre- and post-removal, the division's determination of
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whether a report is substantiated or unsubstantiated may be based on the child's statements alone.
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(b) Inability to identify or locate the perpetrator may not be used by the division as a basis
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for determining that a report is unsubstantiated, or for closing the case.
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(c) The division may not determine a case to be unsubstantiated or identify a case as
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unsubstantiated solely because the perpetrator was an out-of-home perpetrator.
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(d) Decisions regarding whether a report is substantiated, unsubstantiated, or without merit
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shall be based on the facts of the case at the time the report was made.
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(4) The division should maintain protective custody of the child if it finds that one or more
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of the following conditions exist:
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(a) the minor has no natural parent, guardian, or responsible relative who is able and
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willing to provide safe and appropriate care for the minor;
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(b) shelter of the minor is a matter of necessity for the protection of the minor and there
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are no reasonable means by which the minor can be protected in his home or the home of a
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responsible relative;
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(c) there is substantial evidence that the parent or guardian is likely to flee the jurisdiction
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of the court; or
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(d) the minor has left a previously court ordered placement.
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(5) (a) Within 24 hours after receipt of a child into protective custody, excluding weekends
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and holidays, the Division of Child and Family Services shall convene a child protection team to
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review the circumstances regarding removal of the child from his home, and prepare the testimony
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and evidence that will be required of the division at the shelter hearing, in accordance with Section
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78-3a-306
.
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(b) Members of that team shall include:
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(i) the caseworker assigned to the case and the caseworker who made the decision to
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remove the child;
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(ii) a representative of the school or school district in which the child attends school;
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(iii) the peace officer who removed the child from the home;
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(iv) a representative of the appropriate Children's Justice Center, if one is established
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within the county where the child resides;
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(v) if appropriate, and known to the division, a therapist or counselor who is familiar with
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the child's circumstances; and
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(vi) any other individuals as determined to be appropriate and necessary by the team
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coordinator and chair.
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(c) At that 24-hour meeting, the division shall have available for review and consideration,
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the complete child protective services and foster care history of the child and the child's parents
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and siblings.
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(6) After receipt of a child into protective custody and prior to the adjudication hearing,
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all investigative interviews with the child that are initiated by the division shall be audio or video
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taped, and the child shall be allowed to have a support person of the child's choice present. That
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support person may not be an alleged perpetrator.
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(7) The division shall cooperate with law enforcement investigations regarding the alleged
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perpetrator.
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(8) The division may not close an investigation solely on the grounds that the division
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investigator is unable to locate the child, until all reasonable efforts have been made to locate the
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child and family members. Those efforts include:
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(a) visiting the home at times other than normal work hours;
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(b) contacting local schools;
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(c) contacting local, county, and state law enforcement agencies; and
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(d) checking public assistance records.
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Section 7.
Section
62A-4a-205 (Effective 07/01/00)
is amended to read:
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62A-4a-205 (Effective 07/01/00). Treatment plans.
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(1) No more than 45 days after a child enters the temporary custody of the division, the
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child's treatment plan shall be finalized.
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(2) The division shall use an interdisciplinary team approach in developing each treatment
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plan. An interdisciplinary team shall include, but is not limited to, representatives from mental
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health, education, and, where appropriate, a representative of law enforcement.
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(3) (a) The division shall involve all of the following in the development of a child's
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treatment plan:
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[(a)] (i) both of the child's natural parents, unless the whereabouts of a parent are
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unknown;
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[(b)] (ii) the child;
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[(c)] (iii) the child's foster parents; and
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[(d)] (iv) where appropriate, the child's stepparent.
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(b) In relation to all information considered by the division in developing a treatment plan,
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additional weight and attention shall be given to the input of the child's natural and foster parents
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upon their involvement pursuant to Subsections (3)(a)(i) and (iii).
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(4) A copy of the treatment plan shall be provided to the guardian ad litem, and to the
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child's natural parents and foster parents immediately upon completion, or as soon as is reasonably
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possible thereafter.
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(5) Each treatment plan shall specifically provide for the safety of the child, in accordance
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with federal law, and clearly define what actions or precautions will, or may be, necessary to
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provide for the health, safety, protection, and welfare of the child.
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(6) The plan shall set forth, with specificity, at least the following:
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(a) the reason the child entered Division of Child and Family Services custody, and
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documentation of the reasonable efforts made to prevent placement, or documentation of the
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emergency situation that existed and that prevented reasonable efforts;
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(b) the primary permanency goal for the child and the reason for selection of that goal;
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(c) the concurrent permanency goal for the child and the reason for the selection of that
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goal;
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(d) if the plan is for the child to return to his family, specifically what the parents must do
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in order to enable the child to be returned home, specifically how those requirements may be
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accomplished, and how those requirements will be measured;
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(e) the specific services needed to reduce the problems that necessitated placement in the
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division's custody, and who will provide for and be responsible for case management;
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(f) a visitation schedule between the natural parent and the child;
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(g) the health care to be provided to the child, and the mental health care to be provided
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to address any known or diagnosed mental health needs of the child. If residential treatment, rather
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than a foster home, is the proposed placement, a specialized assessment of the child's health needs
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shall be conducted, including an assessment of mental illness and behavior and conduct disorders;
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and
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(h) social summaries that include case history information pertinent to case planning.
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(7) (a) [The] Each treatment plan shall be specific to each child and his family, rather than
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general. The division shall train its workers to develop treatment plans that comply with federal
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mandates and the specific needs of the particular child and his family[;].
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(b) [all] All treatment plans and expectations shall be individualized and contain specific
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time frames[;].
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(c) [treatment] Treatment plans shall address problems that keep children in placement and
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keep them from achieving permanence in their lives[; and].
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(d) [the] The child's natural parents, foster parents, and where appropriate, stepparents,
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shall be kept informed of and supported to participate in important meetings and procedures related
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to the child's placement.
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(8) With regard to a child who is three years of age or younger, if the goal is not to return
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the child home, the permanency plan for that child shall be adoption unless there are documented
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extenuating circumstances that justify long-term foster care or guardianship.
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Section 8.
Section
62A-4a-409
is amended to read:
286
62A-4a-409. Investigation by division -- Temporary protective custody.
287
(1) The division shall make a thorough investigation upon receiving either an oral or
288
written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug dependency, when
289
there is reasonable cause to suspect a situation of abuse, neglect, fetal alcohol syndrome, or fetal
290
drug dependency. The primary purpose of that investigation shall be protection of the child.
291
(2) The investigation may include inquiry into the child's home environment, emotional,
292
or mental health, nature and extent of injuries, and physical safety.
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(3) The division shall make a written report of its investigation. The written report shall
294
include a determination regarding whether the alleged abuse or neglect was substantiated or
295
unsubstantiated.
296
(4) (a) The division shall use an interdisciplinary approach whenever possible in dealing
297
with reports made under this part.
298
(b) For this purpose, the division shall convene appropriate interdisciplinary "child
299
protection teams" to assist it in its protective, diagnostic, assessment, treatment, and coordination
300
services.
301
(c) A representative of the division shall serve as the team's coordinator and chair.
302
Members of the team shall serve at the coordinator's invitation, and whenever possible, the team
303
shall include representatives of health, mental health, education, law enforcement agencies, and
304
other appropriate agencies or individuals.
305
(5) In any case where the division supervises, governs, or directs the affairs of any
306
individual, institution, or facility that has been alleged to be involved in acts or omissions of child
307
abuse or neglect, the investigation of the reported child abuse or neglect shall be conducted by an
308
agency other than the division.
309
(6) If a report of neglect is based upon or includes an allegation of educational neglect the
310
division shall immediately consult with school authorities to verify the child's status in accordance
311
with Sections
53A-11-101
through
53A-11-103
.
312
(7) When the division has completed its initial investigation under this part, it shall give
313
notice of that completion to the person who made the initial report.
314
(8) Division workers or other child protection team members have authority to enter upon
315
public or private premises, using appropriate legal processes, to investigate reports of alleged child
316
abuse or neglect.
317
(9) With regard to any interview of a child prior to removal of that child from his home:
318
(a) except as provided in Subsection (9)(b) or (c), the division shall notify a parent of the
319
child prior to the interview;
320
(b) if a child's parent or stepparent, or a parent's paramour has been identified as the
321
alleged perpetrator, the division need not notify a parent of the child prior to an initial interview
322
with the child;
323
(c) if the perpetrator is unknown, or if the perpetrator's relationship to the child's family
324
is unknown, the division may conduct a minimal interview with the child prior to notification of
325
the child's parent;
326
(d) in all cases described in Subsection (9)(b) or (c), a parent of the child shall be notified
327
as soon as practicable after the child has been interviewed, but in no case later than 24 hours after
328
the interview has taken place; and
329
(e) a child's parents shall be notified of the time and place of all subsequent interviews
330
with the child.
331
[(9)] (10) In accordance with the procedures and requirements of Sections
62A-4a-202.1
332
through
62A-4a-202.3
and
78-3a-301
, a division worker or child protection team member may take
333
a child into protective custody, and deliver the child to a law enforcement officer, or place the child
334
in an emergency shelter facility approved by the juvenile court, at the earliest opportunity
335
subsequent to the child's removal from its original environment. Control and jurisdiction over the
336
child is determined by the provisions of Title 78, Chapter 3a, and as otherwise provided by law.
337
Section 9.
Section
78-3a-301
is amended to read:
338
78-3a-301. Removing a child from his home -- Grounds for removal.
339
(1) The Division of Child and Family Services may not remove a child from the custody
340
of his natural parent unless there is substantial cause to believe that any one of the following exist:
341
(a) there is a substantial danger to the physical health or safety of the minor and the minor's
342
physical health or safety may not be protected without removing him from his parent's custody.
343
If a minor has previously been adjudicated as abused, neglected, or dependent, and a subsequent
344
incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
345
child cannot safely remain in the custody of his parent;
346
(b) the minor is suffering emotional damage, as may be indicated by, but not limited to,
347
extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
348
and there are no reasonable means available by which the minor's emotional health may be
349
protected without removing the minor from the custody of his parent;
350
(c) the minor or another minor residing in the same household has been physically or
351
sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
352
a parent, a member of the parent's household, or other person known to the parent. If a parent has
353
received actual notice that physical or sexual abuse by a person known to the parent has occurred,
354
and there is evidence that the parent has allowed the child to be in the physical presence of the
355
alleged abuser, that fact constitutes prima facie evidence that the child is at substantial risk of
356
being physically or sexually abused;
357
(d) the parent is unwilling to have physical custody of the child;
358
(e) the minor has been left without any provision for his support;
359
(f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
360
safe and appropriate care for the minor;
361
(g) a relative or other adult custodian with whom the minor has been left by the parent is
362
unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
363
unknown, and reasonable efforts to locate him have been unsuccessful;
364
(h) the minor is in immediate need of medical care;
365
(i) the physical environment or the fact that the child is left unattended poses a threat to
366
the child's health or safety;
367
(j) the minor or another minor residing in the same household has been neglected;
368
(k) an infant has been abandoned, as defined in Section
78-3a-313.5
;
369
(l) the parent, or an adult residing in the same household as the parent, has been charged
370
or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
371
laboratory operation, as defined in Section
58-37d-3
, was located in the residence or on the
372
property where the child resided; or
373
(m) the child's welfare is otherwise endangered, as documented by the caseworker.
374
(2) The Division of Child and Family Services may not remove a minor from the custody
375
of his natural parent solely on the basis of educational neglect.
376
(3) The Division of Child and Family Services shall comply with the provisions of Section
377
62A-4a-202.1
in effecting removal of a child pursuant to this section.
378
[(3)] (4) (a) A minor removed from the custody of his natural parent under this section may
379
not be placed or kept in a secure detention facility pending court proceedings unless the minor is
380
detainable based on guidelines promulgated by the Division of Youth Corrections.
381
(b) A minor removed from the custody of his natural parent but who does not require
382
physical restriction shall be given temporary care in a shelter facility.
383
Section 10.
Section
78-3a-306
is amended to read:
384
78-3a-306. Shelter hearing.
385
(1) With regard to a child who has been removed by the Division of Child and Family
386
Services, or who is in the protective custody of the division, a shelter hearing shall be held within
387
72 hours after removal of the child from his home, excluding weekends and holidays.
388
(2) Upon removal of a child from his home and receipt of that child into protective
389
custody, the division shall issue a notice that contains all of the following:
390
(a) the name and address of the person to whom the notice is directed;
391
(b) the date, time, and place of the shelter hearing;
392
(c) the name of the minor on whose behalf a petition is being brought;
393
(d) a concise statement regarding the reasons for removal, and of the allegations and code
394
sections under which the proceeding has been instituted;
395
(e) a statement that the parent or guardian to whom notice is given, and the minor, are
396
entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
397
indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
398
provided; and
399
(f) a statement that the parent or guardian is liable for the cost of support of the minor in
400
the protective custody, temporary custody, and custody of the division, and the cost for legal
401
counsel appointed for the parent or guardian under Subsection (2)(e), according to his financial
402
ability.
403
(3) That notice shall be personally served as soon as possible, but [at least 24 hours prior
404
to the time set for the shelter hearing] no later than one business day after removal of a child from
405
his home, on:
406
(a) the appropriate guardian ad litem; and
407
(b) both parents and any guardian of the minor, unless they cannot be located.
408
(4) The following persons shall be present at the shelter hearing:
409
(a) the child, unless it would be detrimental for the child;
410
(b) the child's parents or guardian, unless they cannot be located, or fail to appear in
411
response to the notice;
412
(c) counsel for the parents, if one has been requested;
413
(d) the child's guardian ad litem;
414
(e) the caseworker from the Division of Child and Family Services who has been assigned
415
to the case; and
416
(f) the attorney from the attorney general's office who is representing the division.
417
(5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's parent
418
or guardian, if present, and any other person having relevant knowledge, to provide relevant
419
testimony. The court may also provide an opportunity for the minor to testify.
420
(b) The court may consider all relevant evidence, in accordance with the Utah Rules of
421
Juvenile Procedure. The court shall hear relevant evidence presented by the minor, his parent or
422
guardian, the requesting party, or their counsel, but may in its discretion limit testimony and
423
evidence to only that which goes to the issues of removal and the child's need for continued
424
protection.
425
(6) If the child is in the protective custody of the division, the division shall report to the
426
court:
427
(a) the reasons why the minor was removed from the parent's or guardian's custody;
428
(b) any services provided to the child and his family in an effort to prevent removal;
429
(c) the need, if any, for continued shelter;
430
(d) the available services that could facilitate the return of the minor to the custody of his
431
parent or guardian; and
432
(e) whether the child has any relatives who may be able and willing to take temporary
433
custody.
434
(7) The court shall consider all relevant evidence provided by persons or entities
435
authorized to present relevant evidence pursuant to this section.
436
[(7)] (8) If necessary to protect the child, preserve the rights of a party, or for other good
437
cause shown, the court may grant no more than one time-limited continuance, not to exceed five
438
judicial days.
439
[(8)] (9) The court shall order that the minor be released from the protective custody of the
440
division unless it finds, by a preponderance of the evidence, that any one of the following exist:
441
(a) there is a substantial danger to the physical health or safety of the minor and the minor's
442
physical health or safety may not be protected without removing him from his parent's custody.
443
If a minor has previously been adjudicated as abused, neglected, or dependent and a subsequent
444
incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
445
child cannot safely remain in the custody of his parent;
446
(b) the minor is suffering emotional damage, as may be indicated by, but is not limited to,
447
extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
448
and there are no reasonable means available by which the minor's emotional health may be
449
protected without removing the minor from the custody of his parent;
450
(c) the minor or another minor residing in the same household has been physically or
451
sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
452
a parent, a member of the parent's household, or other person known to the parent. If a parent has
453
received actual notice that physical or sexual abuse by a person known to the parent has occurred,
454
and there is evidence that the parent has allowed the child to be in the physical presence of the
455
alleged abuser, that fact constitutes prima facie evidence that the child is at substantial risk of
456
being physically or sexually abused;
457
(d) the parent is unwilling to have physical custody of the child;
458
(e) the minor has been left without any provision for his support;
459
(f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
460
safe and appropriate care for the minor;
461
(g) a relative or other adult custodian with whom the minor has been left by the parent is
462
unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
463
unknown, and reasonable efforts to locate him have been unsuccessful;
464
(h) the minor is in immediate need of medical care;
465
(i) the physical environment or the fact that the child is left unattended poses a threat to
466
the child's health or safety;
467
(j) the minor or another minor residing in the same household has been neglected;
468
(k) the parent, or an adult residing in the same household as the parent, has been charged
469
or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
470
laboratory operation, as defined in Section
58-37d-3
, was located in the residence or on the
471
property where the child resided; or
472
(l) the child's welfare is otherwise endangered.
473
[(9)] (10) (a) The court shall also make a determination on the record as to whether
474
reasonable efforts were made to prevent or eliminate the need for removal of the minor from his
475
home and whether there are available services that would prevent the need for continued removal.
476
If the court finds that the minor can be safely returned to the custody of his parent or guardian
477
through the provision of those services, it shall place the minor with his parent or guardian and
478
order that those services be provided by the division.
479
(b) In making that determination, and in ordering and providing services, the child's health,
480
safety, and welfare shall be the paramount concern, in accordance with federal law.
481
[(10)] (11) Where the division's first contact with the family occurred during an emergency
482
situation in which the child could not safely remain at home, the court shall make a finding that
483
any lack of preplacement preventive efforts was appropriate.
484
[(11)] (12) In cases where actual sexual abuse or abandonment, or serious physical abuse
485
or neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
486
or to, in any other way, attempt to maintain a child in his home, return a child to his home, provide
487
reunification services, or attempt to rehabilitate the offending parent or parents.
488
[(12)] (13) The court may not order continued removal of a minor solely on the basis of
489
educational neglect as described in Subsection
78-3a-103
(1)(r)(ii).
490
[(13)] (14) (a) Whenever a court orders continued removal of a minor under this section,
491
it shall state the facts on which that decision is based.
492
(b) If no continued removal is ordered and the minor is returned home, the court shall state
493
the facts on which that decision is based.
494
[(14)] (15) If the court finds that continued removal and temporary custody are necessary
495
for the protection of a child because harm may result to the child if he were returned home, it shall
496
order continued removal regardless of any error in the initial removal of the child, or the failure
497
of a party to comply with notice provisions, or any other procedural requirement of this chapter
498
or Title 62A, Chapter 4a, Child and Family Services.
499
Section 11. Effective date.
500
This act takes effect on May 1, 2000, except that Section
62A-4a-205
takes effect on July
501
1, 2000.
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