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Third Substitute H.B. 103

Senator John L. Valentine proposes to substitute the following bill:


             1     
AMENDMENTS TO CHILD WELFARE

             2     
2000 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Nora B. Stephens

             5      AN ACT RELATING TO CHILD WELFARE AND ADOPTION; REQUIRING THE
             6      CONSUMER HEARING PANEL TO ESTABLISH DEFINED PROCEDURES; AMENDING
             7      PROCEDURES RELATING TO FOSTER CARE CITIZEN REVIEW BOARDS; REQUIRING
             8      COURT REPORTS TO FOSTER CARE CITIZEN REVIEW STEERING COMMITTEE;
             9      LIMITING WHO MAY ADOPT; PROVIDING A SPECIFIED PREFERENCE REGARDING
             10      FOSTER CARE AND ADOPTIVE PLACEMENTS OF CHILDREN IN DCFS CUSTODY;
             11      DESCRIBING THE DCFS POLICY BOARD'S AUTHORITY REGARDING ADOPTION AND
             12      FOSTER CARE PLACEMENT; AND PROVIDING AN EFFECTIVE DATE.
             13      This act affects sections of Utah Code Annotated 1953 as follows:
             14      AMENDS:
             15          62A-4a-102, as last amended by Chapter 329, Laws of Utah 1997
             16          62A-4a-602, as renumbered and amended by Chapter 260, Laws of Utah 1994
             17          62A-4a-607, as last amended by Chapters 195 and 329, Laws of Utah 1997
             18          78-3g-103 (Effective 07/01/00), as last amended by Chapter 121, Laws of Utah 1999
             19          78-30-1, as last amended by Chapter 65, Laws of Utah 1990
             20          78-30-1.5, as enacted by Chapter 245, Laws of Utah 1990
             21          78-30-9, as last amended by Chapters 65 and 245, Laws of Utah 1990
             22      Be it enacted by the Legislature of the state of Utah:
             23          Section 1. Section 62A-4a-102 is amended to read:
             24           62A-4a-102. Board of Child and Family Services.
             25          (1) (a) The Board of Child and Family Services, created in accordance with this section

             26      and with Sections 62A-1-105 and 62A-1-107 , is responsible for establishing by rule, pursuant to
             27      Title 63, Chapter 46a, Utah Administrative Rulemaking Act, the policy of the division in
             28      accordance with the requirements of this chapter and Title 78, Chapter 3a, regarding abuse,
             29      neglect, and dependency proceedings, youth services, and domestic violence services. The board
             30      is responsible to see that the legislative purposes for the division are carried out.
             31          (b) (i) Effective July 1, 1994, the governor shall appoint, with the advice and consent of
             32      the Senate, 11 members to the Board of Child and Family Services.
             33          (ii) Except as required by Subsection (1)(b)(iii), as terms of current board members expire,
             34      the governor shall appoint each new member or reappointed member to a four-year term.
             35          (iii) Notwithstanding the requirements of Subsection (1)(b)(ii), the governor shall, at the
             36      time of appointment or reappointment, adjust the length of terms to ensure that the terms of board
             37      members are staggered so that approximately half of the board is appointed every two years.
             38          (c) Two members of the board shall be persons who are or have been consumers, two
             39      members of the board shall be persons who are actively involved in children's issues specifically
             40      related to abuse and neglect, one member shall be a licensed foster parent, one member shall be
             41      a recognized expert in the social, developmental, and mental health needs of children, one member
             42      shall be a physician licensed to practice medicine in this state who is also a board certified
             43      pediatrician and who is an expert in child abuse and neglect, and one member shall be an adult
             44      relative of a child who is or has been in the foster care system.
             45          (d) Six members of the board are necessary to constitute a quorum at any meeting.
             46          (e) When a vacancy occurs in the membership for any reason, the replacement shall be
             47      appointed for the unexpired term.
             48          (2) (a) Members shall receive no compensation or benefits for their services, but may
             49      receive per diem and expenses incurred in the performance of the member's official duties at the
             50      rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
             51          (b) Members may decline to receive per diem and expenses for their service.
             52          (3) The board shall:
             53          (a) approve fee schedules for programs within the division;
             54          (b) in accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking Act,
             55      establish, by rule, [procedures for developing its] policies to ensure that private citizens,
             56      consumers, foster parents, private contract providers, allied state and local agencies, and others are

             57      provided with an opportunity to comment and provide input regarding any new policy or proposed
             58      revision of an existing policy; and
             59          (c) provide a mechanism for systematic and regular review of existing policy and for
             60      consideration of policy changes proposed by the persons and agencies described in Subsection
             61      (3)(b).
             62          (4) (a) The board shall establish a three-member Consumer Hearing Panel to act
             63      independently of the board and the division, and to be the sole and final decision-making body to
             64      hear, resolve, and make recommendations regarding consumer complaints relating to the division.
             65      The board may appoint two alternates to serve on the Consumer Hearing Panel in the event that
             66      one or more of the members is unable to serve at any given time. This section does not restrict or
             67      limit access to the courts for any person, or override Title 62A, Chapter 2, Licensure of Programs
             68      and Facilities, or Title 67, Chapter 19, Utah State Personnel Management Act.
             69          (b) The Consumer Hearing Panel may not include any employees of the division.
             70          (c) Prior to July 1, 2000, the Consumer Hearing Panel shall establish procedures that:
             71          (i) provide for reasonable notice of panel hearings to the appropriate consumers;
             72          (ii) require both the division and the consumer to present their respective information,
             73      testimony, or evidence at the same hearing unless, after reasonable notice, the consumer fails or
             74      refuses to appear at the scheduled panel hearing; and
             75          (iii) affirm the right of affected consumers to be provided with pertinent information
             76      regarding the substance of the division's position, testimony, or evidence either prior to or at the
             77      scheduled panel hearing.
             78          [(c)] (d) The Consumer Hearing Panel shall report its recommendations to the board, the
             79      division, and the Legislative Oversight Panel described in Section 62A-4a-207 . The division shall
             80      comply with the recommendations of the Consumer Hearing Panel.
             81          [(d)] (e) The department shall provide staff to the Consumer Hearing Panel.
             82          [(e)] (f) (i) Members of the panel shall receive a per diem allowance for each day or
             83      portion of a day spent in performing the duties of the panel, and shall be reimbursed for all
             84      necessary travel expenses.
             85          (ii) The per diem reimbursement described in Subsection [(e)] (4)(f)(i) may not exceed 75
             86      days for any one individual panel member in any fiscal year.
             87          (5) The board may create state advisory committees to advise it concerning programs

             88      offered by the Division of Child and Family Services. The board shall provide each committee
             89      with a specific charge in writing.
             90          (6) The board shall establish policies for the determination of eligibility for services
             91      offered by the division in accordance with this chapter. The division may, by rule, establish
             92      eligibility standards for consumers.
             93          (7) The board may not adopt or maintain any policy regarding placement for adoption or
             94      foster care that is more restrictive than applicable statutory provisions.
             95          Section 2. Section 62A-4a-602 is amended to read:
             96           62A-4a-602. Licensure requirements -- Prohibited acts.
             97          (1) No person, agency, firm, corporation, association, or group children's home may
             98      engage in child placing, or solicit money or other assistance for child placing, without a valid
             99      license issued by the Office of Licensing, in accordance with Chapter 2 of this title. When a child
             100      placing agency's license is suspended or revoked in accordance with that chapter, the care, control,
             101      or custody of any child who has been in the care, control, or custody of that agency shall be
             102      transferred to the division.
             103          (2) (a) An attorney, physician, or other person may assist a parent in identifying or locating
             104      a person interested in adopting the parent's child, or in identifying or locating a child to be adopted.
             105      However, no payment, charge, fee, reimbursement of expense, or exchange of value of any kind,
             106      or promise or agreement to make the same, may be made for that assistance.
             107          (b) An attorney, physician, or other person may not:
             108          (i) issue or cause to be issued to any person a card, sign, or device indicating that he is
             109      available to provide that assistance;
             110          (ii) cause, permit, or allow any sign or marking indicating that he is available to provide
             111      that assistance, on or in any building or structure;
             112          (iii) announce or cause, permit, or allow an announcement indicating that he is available
             113      to provide that assistance, to appear in any newspaper, magazine, directory, or on radio or
             114      television; or
             115          (iv) advertise by any other means that he is available to provide that assistance.
             116          (3) Nothing in this part precludes payment of fees for medical, legal, or other lawful
             117      services rendered in connection with the care of a mother, delivery and care of a child, or lawful
             118      adoption proceedings; and no provision of this part abrogates the right of procedures for

             119      independent adoption as provided by law.
             120          (4) In accordance with federal law, only agents or employees of the division and of
             121      licensed child placing agencies may certify to the United States Immigration and Naturalization
             122      Service that a family meets the division's preadoption requirements.
             123          (5) (a) Beginning May 1, 2000, neither a licensed child placing agency nor any attorney
             124      practicing in this state may place a child for adoption, either temporarily or permanently, with any
             125      individual or individuals that would not be qualified for adoptive placement pursuant to the
             126      provisions of Sections 78-30-1 , 78-30-1.5 , and 78-30-9 .
             127          (b) Beginning May 1, 2000, the division, as a licensed child placing agency, may not place
             128      a child in foster care with any individual or individuals that would not be qualified for adoptive
             129      placement pursuant to the provisions of Sections 78-30-1 , 78-30-1.5 , and 78-30-9 . However,
             130      nothing in this Subsection (5)(b) limits the placement of a child in foster care with the child's
             131      biological or adoptive parent.
             132          (c) Beginning May 1, 2000, with regard to children who are in the custody of the state, the
             133      division shall establish a policy providing that priority for foster care and adoptive placement shall
             134      be provided to families in which both a man and a woman are legally married under the laws of
             135      this state. However, nothing in this Subsection (5)(c) limits the placement of a child with the
             136      child's biological or adoptive parent.
             137          Section 3. Section 62A-4a-607 is amended to read:
             138           62A-4a-607. Promotion of adoption -- Agency notification of potential adoptive
             139      parents -- DCFS utilization of those parents.
             140          (1) (a) The division and all agencies licensed under this part shall promote adoption when
             141      that is a possible and appropriate alternative for a child. Specifically, in accordance with Section
             142      62A-4a-205.6 , the division shall actively promote the adoption of all children in its custody who
             143      have a final plan for termination of parental rights pursuant to Section 78-3a-312 , or a permanency
             144      goal of adoption.
             145          (b) Beginning May 1, 2000, the division may not place a child for adoption, either
             146      temporarily or permanently, with any individual or individuals who do not qualify for adoptive
             147      placement pursuant to the requirements of Sections 78-30-1 , 78-30-1.5 , and 78-30-9 .
             148          (2) The division shall obtain or conduct research of prior adoptive families to determine
             149      what families may do to be successful with their adoptive children and shall make this research

             150      available to potential adoptive parents.
             151          (3) (a) On or before July 1, 1997, each agency licensed under this part shall provide all
             152      potential adoptive parents who have applied for adoption with that agency with information
             153      regarding all children in the custody of the division who have a permanency goal of adoption and
             154      who are eligible for adoption. That notification shall include information regarding adoption
             155      subsidies, ongoing medical and mental health coverage for the adopted child, training for adoptive
             156      parents, and continued support for adoptive parents pursuant to Section 62A-4a-205.6 .
             157          (b) The notification and information provided pursuant to Subsection (3)(a) shall include
             158      a time-limited request for permission from the potential adoptive parents to provide the division
             159      with their names. With regard to those parents who grant permission, the agency shall provide the
             160      division with those names within ten calendar days of receiving permission. Upon receipt of those
             161      names, the division shall consider the suitability of those persons as potential adoptive parents for
             162      children in the custody of the division, provide the agency with the names and complete case
             163      histories of appropriate children, and provide the training and support described in Subsection
             164      62A-4a-205.6 (4).
             165          Section 4. Section 78-3g-103 (Effective 07/01/00) is amended to read:
             166           78-3g-103 (Effective 07/01/00). Foster care citizen review boards -- Membership --
             167      Responsibilities -- Periodic reviews.
             168          (1) Within appropriations from the Legislature, foster care citizen review boards shall be
             169      established in each Juvenile Court district in the state, to act as the panels described in 42 U.S.C.
             170      Sections 675(5) and (6), which are required to conduct periodic reviews unless court reviews are
             171      conducted.
             172          (2) (a) The committee shall appoint seven members to each board. Five of those members
             173      shall be parents.
             174          (b) Five members of a board constitute a quorum, and an action of a majority of the
             175      quorum constitutes the action of the board.
             176          (c) A board member may not be an employee of the division or the juvenile court.
             177          (d) Board members shall be representative of the ethnic, cultural, religious,
             178      socio-economic, and professional diversity found in the community.
             179          (e) A board may elect its own chair, vice chair, and other officers as it considers
             180      appropriate.

             181          (f) The division may designate a representative to provide technical advice to the board
             182      regarding division policy and procedure.
             183          (3) With regard to each child in its custody, the division shall provide the appropriate
             184      boards with access to all records maintained by the division, and shall ensure that each appropriate
             185      board is provided with the entire case file regarding each of its pertinent cases.
             186          (4) (a) In districts or areas where foster care citizen review boards have been established,
             187      periodic reviews either by the court or by a foster care citizen review board, shall be conducted
             188      with regard to each child in the division's custody no less frequently than once every six months,
             189      in accordance with Section 78-3a-313 and 42 U.S.C. Sections 675(5) and (6). In cases where the
             190      court has conducted a six month review hearing, a foster care citizen review board shall also
             191      conduct a review within 12 months from the date of the child's removal from his home.
             192          (b) In accordance with federal law and with Subsection 78-3a-314 (1), periodic reviews
             193      conducted by foster care citizen review boards shall be open to the participation of the child's
             194      natural parents, foster parents, preadoptive parents, and any relative providing care for the child.
             195      Notice shall be provided to those persons pursuant to Subsection 78-3a-314 (1).
             196          (c) At each periodic review, foster care citizen review boards shall:
             197          (i) provide opportunities for separate interviews with parents and foster parents in each
             198      case; and
             199          (ii) conduct an individual interview with each affected child who is old enough to
             200      participate in an interview, unless the child affirmatively chooses not to participate. At the child's
             201      request, he may be accompanied by a support person of his choice, so long as the support person
             202      is not an alleged perpetrator.
             203          [(c)] (d) Boards may review additional abuse, neglect, or dependency cases or plans at the
             204      request of the court.
             205          (5) Each board shall prepare a dispositional report regarding the child's case and plan. The
             206      periodic review and the dispositional report shall be consistent with the provisions of Title 62A,
             207      Chapter 4a, Child and Family Services, and Title 78, Chapter 3a, Part 3, Abuse, Neglect, and
             208      Dependency Proceedings, and shall include at least the following considerations:
             209          (a) the extent to which the plan's objectives have been implemented or accomplished by
             210      the parent, the child, and the division;
             211          (b) whether revisions to the plan are needed, and if so, how the plan should be revised;

             212          (c) the extent to which the division has provided the services and interventions described
             213      in the plan, and whether those services and interventions are assisting, or will assist, the parent and
             214      child to achieve the plan's objectives within the statutory time limitations;
             215          (d) the extent to which the parent and child have willingly and actively participated in the
             216      interventions described in the plan;
             217          (e) the continuing necessity for and appropriateness of the child's placement;
             218          (f) the extent of progress that has been made toward alleviating or mitigating the causes
             219      necessitating the child's removal or continued placement;
             220          (g) the primary permanency goal and the concurrent permanency goal for the child and, if
             221      a final permanency plan has been established, an opinion regarding the appropriateness of that
             222      permanency plan; and
             223          (h) a determination regarding whether the statutory time limitations described in Title 78,
             224      Chapter 3a, Part 3, have been met, specifically, whether the 12 month limitation on reunification
             225      services required by Section 78-3a-311 has been complied with. The board shall also render an
             226      opinion regarding when it estimates that the child will achieve permanency.
             227          (6) (a) Each board shall submit its dispositional report to the court, the division, and to all
             228      parties to an action within 30 days after a case is reviewed by the board.
             229          (b) The board's dispositional report shall be filed with the court, and shall be made a part
             230      of the court's legal file. The dispositional report shall be received and reviewed by the court in the
             231      same manner as the court receives and reviews the reports described in Section 78-3a-505 . The
             232      report by a board, if determined to be an ex parte communication with a judge, shall be considered
             233      a communication authorized by law. Foster care citizen review board dispositional reports may
             234      be received as evidence, and may be considered by the court along with other evidence. The court
             235      may require any person who participated in the dispositional report to appear as a witness if the
             236      person is reasonably available.
             237          (c) Whenever a court makes a determination or finding it shall provide for notice to the
             238      committee regarding that determination or finding. The committee shall provide that information
             239      to the applicable board.
             240          (7) Members of boards may not receive financial compensation or benefits for their
             241      services. Members may not receive per diem or expenses for their service, except that:
             242          (a) members may be reimbursed for mileage on days that they are involved in training, at

             243      rates established by the Division of Finance; and
             244          (b) members may be provided with a meal on days that they serve on a board.
             245          (8) Boards are authorized to receive funds from public and private grants and donations
             246      in accordance with the requirements described in Subsection 78-3g-102 (8).
             247          (9) In districts or areas where foster care citizen review boards have not been established,
             248      either the court or the Division of Child and Family Services shall conduct the reviews in
             249      accordance with the provisions of Subsections (4)(a) and (b), and Section 78-3a-313 .
             250          Section 5. Section 78-30-1 is amended to read:
             251           78-30-1. Who may adopt -- Adoption of minor -- Adoption of adult.
             252          (1) Any minor child may be adopted by an adult person, in accordance with the provisions
             253      and requirements of this section and this chapter.
             254          (2) Any adult may be adopted by any other adult. However, all provisions of this chapter
             255      apply to the adoption of an adult just as though the person being adopted were a minor, except that
             256      consent of the parents of an adult person being adopted is not required.
             257          (3) (a) A child may be adopted by:
             258          (i) adults who are legally married to each other, including adoption by a stepparent; or
             259          (ii) any single adult, except as provided in Subsection (3)(b).
             260          (b) A child may not be adopted by a person who is cohabiting in a relationship that is not
             261      a legally valid and binding marriage under the laws of this state. For purposes of this Subsection
             262      (3)(b), "cohabiting" means residing with another person and being involved in a sexual relationship
             263      with that person.
             264          Section 6. Section 78-30-1.5 is amended to read:
             265           78-30-1.5. Legislative intent -- Best interest of child.
             266          (1) It is the intent and desire of the Legislature that in every adoption the best interest of
             267      the child should govern and be of foremost concern in the court's determination.
             268          (2) The court shall make a specific finding regarding the best interest of the child, in
             269      accordance with Section 78-30-9 and the provisions of this chapter.
             270          Section 7. Section 78-30-9 is amended to read:
             271           78-30-9. Decree of adoption -- Best interest of child -- Legislative findings.
             272          (1) The court shall examine each person appearing before it in accordance with this
             273      chapter, separately, and, if satisfied that the interests of the child will be promoted by the adoption,

             274      it shall enter a final decree of adoption declaring that the child is adopted by the adoptive parent
             275      or parents and shall be regarded and treated in all respects as the child of the adoptive parent or
             276      parents.
             277          (2) The court shall make a specific finding regarding the best interest of the child, taking
             278      into consideration information provided to the court pursuant to the requirements of this chapter
             279      relating to the health, safety, and welfare of the child and the moral climate of the potential
             280      adoptive placement.
             281          (3) (a) The Legislature specifically finds that it is not in a child's best interest to be adopted
             282      by a person or persons who are cohabiting in a relationship that is not a legally valid and binding
             283      marriage under the laws of this state. Nothing in this section limits or prohibits the court's
             284      placement of a child with a single adult who is not cohabiting as defined in Subsection (3)(b).
             285          (b) For purposes of this section, "cohabiting" means residing with another person and
             286      being involved in a sexual relationship with that person.
             287          Section 8. Effective date.
             288          This act takes effect on May 1, 2000, except that Section 78-3g-103 takes effect on July
             289      1, 2000.

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