Download Zipped Amended WP 9 HB0295.ZIP 28,726 Bytes
[Introduced][Status][Bill Documents][Fiscal Note][Bills Directory]
H.B. 295
1
TAKING MINOR INTO PROTECTIVE
2
CUSTODY WITHOUT WARRANT
3
2002 GENERAL SESSION
4
STATE OF UTAH
5
Sponsor: Thomas V. Hatch
6
This act amends the Human Services Code and the Judicial Code. The act provides that a
7
state officer, peace officer, or child welfare worker may not remove a minor from the minor's
8
home or school or take the minor into protective custody without a warrant or court order
9
unless a parent or guardian consents, or there is probable cause to believe that any one or
10
more of enumerated circumstances exist h [
and the circumstances present a substantial,
11
immediate threat to the health or safety of the minor
] h . The act allows a juvenile court judge
12
to authorize a child protective services worker to execute a warrant. The act amends and
13
clarifies the grounds for a court ordering that a minor be removed from the minor's home
14
or otherwise taken into protective custody, after the filing of a petition alleging abuse,
15
neglect, or dependency. The act makes technical changes. The act provides an effective date.
16
This act affects sections of Utah Code Annotated 1953 as follows:
17
AMENDS:
18
62A-4a-202.1, as last amended by Chapter 167, Laws of Utah 2001
19
62A-4a-202.3, as last amended by Chapters 208 and 250, Laws of Utah 2001
20
62A-4a-209, as enacted by Chapter 250, Laws of Utah 2001
21
62A-4a-409, as last amended by Chapter 208, Laws of Utah 2001
22
78-3a-106, as last amended by Chapter 153, Laws of Utah 2001
23
78-3a-301 [(Subsection (1)(m) Repealed 07/01/02)], as last amended by Chapters 153
24
and 250, Laws of Utah 2001
25
78-3a-306, as last amended by Chapter 250, Laws of Utah 2001
26
Be it enacted by the Legislature of the state of Utah:
27
Section 1.
Section
62A-4a-202.1
is amended to read:
28
62A-4a-202.1. Taking a minor into protective custody without warrant -- Peace
29
officer -- Division of Child and Family Services caseworker -- Immediate threat -- Shelter
30
care or emergency kinship.
31
(1) A state officer, peace officer, or child welfare worker may not, without a warrant or
32
court order issued under Section
78-3a-106
, remove a [child] minor from the [child's] minor's
33
home or school, or take [a child] a minor into protective custody [without a warrant or court order
34
issued under Section
78-3a-106
] unless:
35
[(a) the state officer, peace officer, or child welfare worker has reasonable grounds to
36
believe that the exigent circumstances described in Section
78-3a-301
, which defines substantial
37
danger to a child's health or safety, exist; and]
38
(a) a parent or guardian consents; or
39
h [
(b) h
THE OFFICER OR WORKER HAS, AT THE TIME, PROBABLE CAUSE TO BELIEVE THAT:
h
39a
(i) h [there is probable cause to believe that] h one or more of the circumstances identified
40
in Subsection
78-3a-301
(1) exist;
41
(ii) the circumstance or circumstances referred to in Subsection (1)(b)(i) present a
42
substantial, immediate threat to the health or safety of the minor; and
43
(iii) there are no services reasonably available that would eliminate the need for removal.
]
43a
(b) S
THE OFFICER OR WORKER HAS, AT THE TIME, PROBABLE CAUSE TO BELIEVE THAT
s
43a-1
ONE OR MORE OF THE FOLLOWING CIRCUMSTANCES EXIST:
43b
(i) THERE IS IMMINENT DANGER TO THE PHYSICAL HEALTH OR SAFETY OF THE MINOR,
43c
AND THE MINOR'S PHYSICAL HEALTH OR SAFETY MAY NOT BE PROTECTED WITHOUT REMOVING
43d
S [HIM FROM HIS PARENT'S CUSTODY]
THE MINOR FROM THE CUSTODY OF THE MINOR'S PARENT
43d-1
OR GUARDIAN
s ;
43e
(
ii) THERE IS A SUBSTANTIAL RISK TO THE MINOR OF BEING PHYSICALLY OR SEXUALLY
43f
ABUSED BY A PARENT S
OR GUARDIAN
s , A MEMBER OF THE PARENT'S S
OR GUARDIAN'S
s
43f-1
HOUSEHOLD, OR S [
OTHER
]
ANOTHER
s
PERSON KNOWN
43g
TO THE PARENT S OR GUARDIAN
s
;
43h
(iii) THE PARENT S
OR GUARDIAN
s IS UNWILLING TO HAVE PHYSICAL CUSTODY OF THE S
43h-1
[
CHILD
]
MINOR
s ;
43i
(iv) THE MINOR HAS BEEN S [
LEFT
]
ABANDONED
s
WITHOUT ANY PROVISION FOR THE
43i-1
MINOR'S SUPPORT;
43j
(v) A PARENT WHO HAS BEEN INCARCERATED OR INSTITUTIONALIZED HAS NOT
S ARRANGED
s OR
43k
CANNOT ARRANGE FOR
43l
SAFE AND APPROPRIATE CARE FOR THE MINOR;
43m
(vi) A RELATIVE OR OTHER ADULT CUSTODIAN WITH WHOM THE PARENT S OR GUARDIAN
s
43m-1
HAS LEFT THE
43n
MINOR IS UNWILLING OR UNABLE TO PROVIDE CARE OR SUPPORT FOR THE MINOR, THE
43o
WHEREABOUTS OF THE PARENT S
OR GUARDIAN
s ARE UNKNOWN, AND REASONABLE EFFORTS
43o-1
TO LOCATE THE
43p
PARENT S
OR GUARDIAN
s
HAVE BEEN UNSUCCESSFUL; OR
43q
(vii) AN INFANT HAS BEEN ABANDONED, AS DEFINED IN SECTION 78-3a-313.5.
h
44
[(b)] (2) [the removal of the child or placement of the child] A state officer, peace officer,
45
or child welfare worker may not remove a minor from the minor's home or school or take a minor
46
into protective custody [is not] under Subsection (1) if motivated [purely] solely by an intent to
47
seize or obtain evidence unrelated to the potential abuse or neglect allegation.
48
( 3) In the absence of circumstances that demonstrate a substantial, immediate threat to the
49
health or safety of a minor, a state officer, peace officer, or child welfare worker may not remove
50
a minor from the minor's home or school or take a minor into protective custody under Subsection
51
(1) on the basis of:
52
(a) mental illness or poverty of the parent or guardian; or
53
(b) educational
S [h
OR MEDICAL
h]
s neglect.
54
[(2)] (4) [(a)] A child welfare worker within the division [of Child and Family Services]
55
may take [and maintain protective custody of a minor, without a warrant, in accordance with the
56
requirements of this section and Section
78-3a-301
when] action under Subsection (1)
57
accompanied by a peace officer, or without a peace officer[,] when a peace officer is not
58
reasonably available.
59
[(b)] (5) If possible, consistent with the [child's] minor's safety and welfare, before taking
60
a [child] minor into protective custody, the worker shall also determine whether there are services
61
reasonably available to the worker which, if provided to the minor's parent or to the minor, would
62
eliminate the need to remove the minor from the custody of [his] the minor's parent [ in accordance
63
with the provisions and limitations of Section
78-3a-301
] or guardian. If those services are
64
reasonably available, they shall be utilized. In determining whether services are reasonably
65
available, and in making reasonable efforts to provide those services, the [child's] minor's health,
66
safety, and welfare shall be the worker's paramount concern.
67
[(c) (i) Except as provided in Subsection (2)(c)(ii), if a child welfare worker determines
68
that there is substantial cause to believe that one or more of the factors described in Section
69
78-3a-301
exist and determines, pursuant to Subsection (2)(b), that services are not reasonably
70
available to eliminate the need for removal, the child welfare worker may proceed with removal
71
of the child after the worker has reviewed the reasons for removal and other available options with
72
a family services specialist within the division.]
73
[(ii) The provisions of Subsection (2)(c)(i) requiring a family services specialist's review
74
prior to removal of a child do not apply and are not necessary if, in the child welfare worker's
75
opinion, that process would create a delay that may endanger the health, safety, or welfare of the
76
child.]
77
[(iii) From its existing staff, the division shall train and appoint family services specialists
78
who are available 24 hours a day, seven days a week, to perform the duties described in Subsection
79
(2)(c)(i).]
80
(6) (a) A minor removed or taken into custody under this section may not be placed or kept
81
in a secure detention facility pending court proceedings unless the minor is detainable based on
82
guidelines promulgated by the Division of Youth Corrections.
83
(b) A minor removed from the custody of the minor's parent or guardian but who does not
84
require physical restriction shall be given temporary care in:
85
(i) a shelter facility; or
86
(ii) an emergency kinship placement in accordance with Section
62A-4a-209
.
87
Section 2.
Section
62A-4a-202.3
is amended to read:
88
62A-4a-202.3. Investigation -- Substantiation of reports -- Child in protective
89
custody.
90
(1) When a child is taken into protective custody in accordance with [Sections] Section
91
62A-4a-202.1
[and],
78-3a-106
, or
78-3a-301
, or when the division takes any other action which
92
would require a shelter hearing under Subsection
78-3a-306
(1), the [Division of Child and Family
93
Services] division shall immediately initiate an investigation of the circumstances of the minor and
94
the facts surrounding [his] the minor's being taken into protective custody.
95
(2) The division's investigation shall include, among other actions necessary to meet
96
reasonable professional standards:
97
(a) a search for and review of any records of past reports of abuse or neglect involving the
98
same child, any sibling or other child residing in that household, and the alleged perpetrator;
99
(b) with regard to a child who is five years of age or older, a personal interview with the
100
child outside of the presence of the alleged perpetrator, conducted in accordance with the
101
requirements of Subsection (7);
102
(c) an interview with the child's natural parents or other guardian, unless their whereabouts
103
are unknown;
104
(d) an interview with the person who reported the abuse, unless anonymous;
105
(e) where possible and appropriate, interviews with other third parties who have had direct
106
contact with the child, including school personnel and the child's health care provider;
107
(f) an unscheduled visit to the child's home, unless the division has reasonable cause to
108
believe that the reported abuse was committed by a person who does not:
109
(i) live in the child's home; or
110
(ii) have access to the child; and
111
(g) if appropriate and indicated in any case alleging physical injury, sexual abuse, or failure
112
to meet the child's medical needs, a medical examination. That examination shall be obtained no
113
later than 24 hours after the child was placed in protective custody.
114
(3) The division may rely on a written report of a prior interview rather than conducting
115
an additional interview, if:
116
(a) law enforcement has previously conducted a timely and thorough investigation
117
regarding the alleged abuse or neglect and has produced a written report;
118
(b) that investigation included one or more of the interviews required by Subsection (2);
119
and
120
(c) the division finds that an additional interview is not in the best interest of the child.
121
(4) (a)The division's determination of whether a report is substantiated or unsubstantiated
122
may be based on the child's statements alone.
123
(b) Inability to identify or locate the perpetrator may not be used by the division as a basis
124
for determining that a report is unsubstantiated, or for closing the case.
125
(c) The division may not determine a case to be unsubstantiated or identify a case as
126
unsubstantiated solely because the perpetrator was an out-of-home perpetrator.
127
(d) Decisions regarding whether a report is substantiated, unsubstantiated, or without merit
128
shall be based on the facts of the case at the time the report was made.
129
(5) The division should maintain protective custody of the child if it finds that one or more
130
of the following conditions exist:
131
(a) the minor has no natural parent, guardian, or responsible relative who is able and
132
willing to provide safe and appropriate care for the minor;
133
(b) shelter of the minor is a matter of necessity for the protection of the minor and there
134
are no reasonable means by which the minor can be protected in [his] the minor's home or the
135
home of a responsible relative;
136
(c) there is substantial evidence that the parent or guardian is likely to flee the jurisdiction
137
of the court; or
138
(d) the minor has left a previously court ordered placement.
139
(6) (a) Within 24 hours after receipt of a child into protective custody, excluding weekends
140
and holidays, the [Division of Child and Family Services] division shall convene a child protection
141
team to review the circumstances regarding removal of the child from [his] the child's home or
142
school, and prepare the testimony and evidence that will be required of the division at the shelter
143
hearing, in accordance with Section
78-3a-306
.
144
(b) Members of that team shall include:
145
(i) the caseworker assigned to the case and the caseworker who made the decision to
146
remove the child;
147
(ii) a representative of the school or school district in which the child attends school;
148
(iii) the peace officer who removed the child from the home;
149
(iv) a representative of the appropriate Children's Justice Center, if one is established
150
within the county where the child resides;
151
(v) if appropriate, and known to the division, a therapist or counselor who is familiar with
152
the child's circumstances; and
153
(vi) any other individuals as determined to be appropriate and necessary by the team
154
coordinator and chair.
155
(c) At that 24-hour meeting, the division shall have available for review and consideration,
156
the complete child protective services and foster care history of the child and the child's parents
157
and siblings.
158
(7) After receipt of a child into protective custody and prior to the adjudication hearing,
159
all investigative interviews with the child that are initiated by the division shall be audio or video
160
taped, and the child shall be allowed to have a support person of the child's choice present. That
161
support person may not be an alleged perpetrator.
162
(8) The division shall cooperate with law enforcement investigations regarding the alleged
163
perpetrator.
164
(9) The division may not close an investigation solely on the grounds that the division
165
investigator is unable to locate the child, until all reasonable efforts have been made to locate the
166
child and family members. Those efforts include:
167
(a) visiting the home at times other than normal work hours;
168
(b) contacting local schools;
169
(c) contacting local, county, and state law enforcement agencies; and
170
(d) checking public assistance records.
171
Section 3.
Section
62A-4a-209
is amended to read:
172
62A-4a-209. Emergency kinship placement.
173
(1) The division may use an emergency kinship placement under Subsection
174
[
78-3a-301
(4)]
62A-4a-202.1
(6) when:
175
(a) the case worker has made the determination that:
176
(i) the child's home is unsafe;
177
(ii) removal is necessary under the provisions of Section [78-3a-301] 62A-4a-202.1; and
178
(iii) the child's custodial parent or guardian will agree to not remove the child from the
179
relative's home who serves as the kinship placement and not have any contact with the child until
180
after the shelter hearing required by Section
78-3a-306
;
181
(b) a relative, with preference being given to a noncustodial parent in accordance with
182
Section
78-3a-307
, can be identified who has the ability and is willing to provide care for the child
183
who would otherwise be placed in shelter care, including:
184
(i) taking the child to medical, mental health, dental, and educational appointments at the
185
request of the division; and
186
(ii) the relative has the ability to make the child available to division services and the
187
guardian ad litem; and
188
(c) the relative agrees to care for the child on an emergency basis under the following
189
conditions:
190
(i) the relative meets the criteria for an emergency kinship placement under Subsection (2);
191
(ii) the relative agrees to not allow the custodial parent or guardian to have any contact
192
with the child until after the shelter hearing unless authorized by the division in writing;
193
(iii) the relative agrees to contact law enforcement and the division if the custodial parent
194
or guardian attempts to make unauthorized contact with the child;
195
(iv) the relative agrees to allow the division and the child's guardian ad litem to have
196
access to the child;
197
(v) the relative has been informed and understands that the division may continue to search
198
for other possible kinship placements for long-term care, if needed;
199
(vi) the relative is willing to assist the custodial parent or guardian in reunification efforts
200
at the request of the division, and to follow all court orders; and
201
(vii) the child is comfortable with the relative.
202
(2) Before the division places a child in an emergency kinship placement, the division
203
must:
204
(a) request the name of a reference and when possible, contact the reference and determine
205
the answer to the following questions:
206
(i) would the person identified as a reference place a child in the home of the emergency
207
kinship placement; and
208
(ii) are there any other relatives to consider as a possible emergency or long-term
209
placement for the child;
210
(b) have the custodial parent or guardian sign an emergency kinship placement agreement
211
form during the investigation;
212
(c) complete a criminal background check described in Sections
62A-4a-202.4
and
213
78-3a-307.1
on all persons living in the relative's household;
214
(d) complete a home inspection of the relative's home; and
215
(e) have the emergency kinship placement approved by a family service specialist.
216
(3) As soon as possible after the emergency placement and prior to the shelter hearing
217
required by Section
78-3a-306
, the division shall convene a family unity meeting.
218
(4) After an emergency kinship placement, the division caseworker must:
219
(a) respond to the emergency kinship placement's calls within one hour if the custodial
220
parents or guardians attempt to make unauthorized contact with the child or attempt to remove the
221
child;
222
(b) complete all removal paperwork, including the notice provided to the custodial parents
223
and guardians under Section
78-3a-306
;
224
(c) contact the attorney general to schedule a shelter hearing;
225
(d) complete the kinship procedures required in Section
78-3a-307
, including, within five
226
days after placement, the criminal history record check described in Subsection (5); and
227
(e) continue to search for other relatives as a possible long-term placement, if needed.
228
(5) (a) In order to determine the suitability of the kinship placement and to conduct a
229
background screening and investigation of individuals living in the household in which a child is
230
placed, each individual living in the household in which the child is placed shall be fingerprinted.
231
If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the
232
division to the Federal Bureau of Investigation for a national criminal history record check.
233
(b) The cost of those investigations shall be borne by whomever received placement of
234
the child, except that the division may pay all or part of the cost of those investigations if the
235
person with whom the child is placed is unable to pay.
236
Section 4.
Section
62A-4a-409
is amended to read:
237
62A-4a-409. Investigation by division -- Temporary protective custody -- Preremoval
238
interviews of children.
239
(1) The division shall make a thorough pre-removal investigation upon receiving either
240
an oral or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug
241
dependency, when there is reasonable cause to suspect a situation of abuse, neglect, fetal alcohol
242
syndrome, or fetal drug dependency. The primary purpose of that investigation shall be protection
243
of the child.
244
(2) The preremoval investigation shall include the same investigative requirements
245
described in Section
62A-4a-202.3
.
246
(3) The division shall make a written report of its investigation. The written report shall
247
include a determination regarding whether the alleged abuse or neglect was substantiated,
248
unsubstantiated, or without merit.
249
(4) (a) The division shall use an interdisciplinary approach whenever possible in dealing
250
with reports made under this part.
251
(b) For this purpose, the division shall convene appropriate interdisciplinary "child
252
protection teams" to assist it in its protective, diagnostic, assessment, treatment, and coordination
253
services.
254
(c) A representative of the division shall serve as the team's coordinator and chair.
255
Members of the team shall serve at the coordinator's invitation, and whenever possible, the team
256
shall include representatives of health, mental health, education, law enforcement agencies, and
257
other appropriate agencies or individuals.
258
(5) In any case where the division supervises, governs, or directs the affairs of any
259
individual, institution, or facility that has been alleged to be involved in acts or omissions of child
260
abuse or neglect, the investigation of the reported child abuse or neglect shall be conducted by an
261
agency other than the division.
262
(6) If a report of neglect is based upon or includes an allegation of educational neglect the
263
division shall immediately consult with school authorities to verify the child's status in accordance
264
with Sections
53A-11-101
through
53A-11-103
.
265
(7) When the division has completed its initial investigation under this part, it shall give
266
notice of that completion to the person who made the initial report.
267
(8) Division workers or other child protection team members have authority to enter upon
268
public or private premises, using appropriate legal processes, to investigate reports of alleged child
269
abuse or neglect.
270
(9) With regard to any interview of a child prior to removal of that child from [his] the
271
child's home:
272
(a) except as provided in Subsection (9)(b) or (c), the division shall notify a parent of the
273
child prior to the interview;
274
(b) if a child's parent or stepparent, or a parent's paramour has been identified as the
275
alleged perpetrator, the division need not notify a parent of the child prior to an initial interview
276
with the child;
277
(c) if the perpetrator is unknown, or if the perpetrator's relationship to the child's family
278
is unknown, the division may conduct a minimal interview, not to exceed 15 minutes, with the
279
child prior to notification of the child's parent;
280
(d) in all cases described in Subsection (9)(b) or (c), a parent of the child shall be notified
281
as soon as practicable after the child has been interviewed, but in no case later than 24 hours after
282
the interview has taken place;
283
(e) a child's parents shall be notified of the time and place of all subsequent interviews
284
with the child; and
285
(f) the child shall be allowed to have a support person of the child's choice present. That
286
support person:
287
(i) may include, but is not limited to, a school teacher or administrator, guidance
288
counselor, or child care provider; and
289
(ii) may not be a person who is alleged to be, or potentially may be, the perpetrator.
290
(10) In accordance with the procedures and requirements of Sections
62A-4a-202.1
291
through
62A-4a-202.3
[and
78-3a-301
], a division worker or child protection team member may
292
take a child into protective custody[,] and deliver the child to a law enforcement officer, or place
293
the child in an emergency shelter facility approved by the juvenile court, at the earliest opportunity
294
subsequent to the child's removal from [its] the child's original environment. Control and
295
jurisdiction over the child is determined by the provisions of Title 78, Chapter 3a, Juvenile Court
296
Act of 1996, and as otherwise provided by law.
297
(11) With regard to cases in which law enforcement has or is conducting an investigation
298
of alleged abuse or neglect of a child:
299
(a) the division shall coordinate with law enforcement to ensure that there is an adequate
300
safety plan to protect the child from further abuse or neglect; and
301
(b) the division is not required to duplicate an aspect of the investigation that, in the
302
division's determination, has been satisfactorily completed by law enforcement.
303
Section 5.
Section
78-3a-106
is amended to read:
304
78-3a-106. Search warrants and subpoenas -- Authority to issue.
305
(1) The court has authority to issue search warrants, subpoenas, or investigative subpoenas
306
in criminal cases, delinquency, and abuse, neglect, and dependency proceedings for the same
307
purposes, in the same manner and pursuant to the same procedures set forth in the code of criminal
308
procedure for the issuance of search warrants, subpoenas, or investigative subpoenas in other trial
309
courts in the state.
310
(2) (a) If it appears to the court upon an affidavit sworn to by a peace officer or any other
311
person, and upon the examination of other witnesses, if required by the judge, that there is probable
312
cause to believe that a child is being ill-treated by [his] the child's parent, guardian, or custodian,
313
or is being detained, ill-treated, or harbored against the desires of [his] the child's parent, guardian,
314
or custodian, in any place within the jurisdiction of the court, the court may issue a warrant
315
authorizing a child protective services worker or peace officer to search for the child and take the
316
child into protective custody.
317
(b) Pursuant to Section
77-23-210
, [the] a peace officer making the search may enter a
318
house or premises by force, if necessary, in order to remove the child.
319
(c) The [officer] person executing the warrant shall then take the child to the place of
320
shelter designated by the court.
321
Section 6.
Section
78-3a-301 [(Subsection (1)(m) Repealed 07/01/02)]
is amended to
322
read:
323
78-3a-301 [(Subsection (1)(m) is repealed 07/01/02)]. Court-ordered removal of a
324
minor from the child's home or school following petition filing -- Grounds for removal.
325
(1) [The Division of Child and Family Services may not remove a child from the custody
326
of his natural parent unless the division complies with the provisions of Title 62A, Chapter 4a,
327
Child and Family Services, including Subsections
62A-4a-103
(2)(b) and
62A-4a-201
(3), and
328
unless there is substantial cause to believe] After a petition has been filed under Subsection
329
78-3a-305
(1), if the minor who is the subject of the petition is not in the protective custody of the
330
division, a court may order that the minor be removed from the minor's home or otherwise taken
331
into protective custody if the court finds, by a preponderance of the evidence, that any one or more
332
of the following circumstances exist:
333
(a) there is a S [
substantial
]
IMMINENT
s danger to the physical health or safety of the minor
333a
and the minor's
334
physical health or safety may not be protected without removing [him] the minor from [his
335
parent's] the custody of the minor's parent or guardian. If a minor has previously been adjudicated
336
as abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency has
337
occurred involving the same alleged abuser or under similar circumstance as the previous abuse,
338
that fact constitutes prima facie evidence that the [child] minor cannot safely remain in the custody
339
of [his] the minor's parent;
340
(b) a parent or guardian engages in or threatens the [child] minor with unreasonable
341
conduct that causes the minor to suffer emotional damage and there are no reasonable means
342
available by which the minor's emotional health may be protected without removing the minor
343
from the custody of [his] the minor's parent or guardian;
344
(c) (i) the minor or another minor residing in the same household has been physically or
345
sexually abused, or is deemed to be at substantial risk of being physically or sexually abused, by
346
a parent or guardian, a member of the parent's or guardian's household, or other person known to
347
the parent or guardian.
348
(ii) For purposes of this Subsection (1)(c), another minor residing in the same household
349
may not be removed from the home unless that minor is [deemed] considered to be at substantial
350
risk of being physically or sexually abused as described in Subsection (1)(c)(i) or (iii).
351
(iii) If a parent or guardian has received actual notice that physical or sexual abuse by a
352
person known to the parent has occurred, and there is evidence that the parent or guardian failed
353
to protect the [child] minor by allowing the [child] minor to be in the physical presence of the
354
alleged abuser, that fact constitutes prima facie evidence that the [child] minor is at substantial risk
355
of being physically or sexually abused;
356
(d) the parent or guardian is unwilling to have physical custody of the [child] minor;
357
(e) the minor has been abandoned or left without any provision for [his] the minor's
358
support;
359
(f) a parent or guardian who has been incarcerated or institutionalized has not arranged or
360
cannot arrange for 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 or
362
guardian is unwilling or unable to provide care or support for the minor, the whereabouts of the
363
parent or guardian are unknown, and reasonable efforts to locate [him] the parent or guardian have
364
been unsuccessful;
365
(h) the minor is in immediate need of [urgent] medical care;
366
(i) (i) a parent's or guardian's actions, omissions, or habitual action create an environment
367
that poses a threat to the [child's] minor's health or safety; or
368
(ii) a parent's or guardian's action in leaving a [child] minor unattended would reasonably
369
pose a threat to the [child's] minor's health or safety;
370
(j) (i) the minor or another minor residing in the same household has been neglected; and
371
(ii) for purposes of Subsection (j)(i), another minor residing in the same household may
372
not be removed unless that minor is deemed to be at substantial risk of being neglected;
373
(k) an infant has been abandoned, as defined in Section
78-3a-313.5
;
374
(l) the parent or guardian, or an adult residing in the same household as the parent or
375
guardian, has been charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab
376
Act, and any clandestine laboratory operation, as defined in Section
58-37d-3
, was located in the
377
residence or on the property where the [child] minor resided; or
378
(m) the [child's] minor's welfare is otherwise endangered[, as documented by the
379
caseworker. This Subsection (1)(m) is repealed on July 1, 2002 unless further authorized by the
380
Legislature].
381
(2) [The Division of Child and Family Services] A court may not remove a minor from
382
the parent's or guardian's custody [of his parent solely] on the basis of educational
S [h
OR MEDICA
L
h
]
s
382a
neglect, in the
383
absence of one of the factors described in Subsection (1).
384
(3) [The Division of Child and Family Services] A court may not remove a minor from
385
the parent's or guardian's custody [of his parent solely] on the basis of mental illness or poverty of
386
the parent or guardian, in the absence of one of the factors described in Subsection (1).
387
[(4) The Division of Child and Family Services shall comply with the provisions of
388
Section
62A-4a-202.1
in effecting removal of a child pursuant to this section.]
389
[(5) (a)] (4) A minor removed from the custody of [his natural] the minor's parent or
390
guardian under this section may not be placed or kept in a secure detention facility pending further
391
court proceedings unless the minor is detainable based on guidelines promulgated by the Division
392
of Youth Corrections.
393
[(b) A minor removed from the custody of his natural parent but who does not require
394
physical restriction shall be given temporary care in:]
395
[(i) a shelter facility; or]
396
[(ii) an emergency kinship placement in accordance with Section
62A-4a-209
.]
397
(5) This section does not preclude removal of a minor from the minor's home without a
398
warrant or court order under Section
62A-4a-202.1
.
399
Section 7.
Section
78-3a-306
is amended to read:
400
78-3a-306. Shelter hearing.
401
(1) A shelter hearing shall be held within 72 hours excluding weekends and holidays after
402
any one or all of the following occur:
403
(a) removal of the child from his home by the Division of Child and Family Services;
404
(b) placement of the child in the protective custody of the Division of Child and Family
405
Services;
406
(c) emergency kinship placement under Subsection [
78-3a-301
(4)(b)(ii)]
62A-4a-202.1
(6);
407
or
408
(d) as an alternative to removal of the child, a parent has entered a domestic violence
409
shelter at the request of the Division of Child and Family Services.
410
(2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
411
through (1)(d), the division shall issue a notice that contains all of the following:
412
(a) the name and address of the person to whom the notice is directed;
413
(b) the date, time, and place of the shelter hearing;
414
(c) the name of the minor on whose behalf a petition is being brought;
415
(d) a concise statement regarding:
416
(i) the reasons for removal or other action of the division under Subsection (1); and
417
(ii) the allegations and code sections under which the proceeding has been instituted;
418
(e) a statement that the parent or guardian to whom notice is given, and the minor, are
419
entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
420
indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
421
provided; and
422
(f) a statement that the parent or guardian is liable for the cost of support of the minor in
423
the protective custody, temporary custody, and custody of the division, and the cost for legal
424
counsel appointed for the parent or guardian under Subsection (2)(e), according to his financial
425
ability.
426
(3) That notice shall be personally served as soon as possible, but no later than one
427
business day after removal of a child from his home, on:
428
(a) the appropriate guardian ad litem; and
429
(b) both parents and any guardian of the minor, unless they cannot be located.
430
(4) The following persons shall be present at the shelter hearing:
431
(a) the child, unless it would be detrimental for the child;
432
(b) the child's parents or guardian, unless they cannot be located, or fail to appear in
433
response to the notice;
434
(c) counsel for the parents, if one has been requested;
435
(d) the child's guardian ad litem;
436
(e) the caseworker from the Division of Child and Family Services who has been assigned
437
to the case; and
438
(f) the attorney from the attorney general's office who is representing the division.
439
(5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's parent
440
or guardian, if present, and any other person having relevant knowledge, to provide relevant
441
testimony. The court may also provide an opportunity for the minor to testify.
442
(b) The court may consider all relevant evidence, in accordance with the Utah Rules of
443
Juvenile Procedure. The court shall hear relevant evidence presented by the minor, his parent or
444
guardian, the requesting party, or their counsel, but may in its discretion limit testimony and
445
evidence to only that which goes to the issues of removal and the child's need for continued
446
protection.
447
(6) If the child is in the protective custody of the division, the division shall report to the
448
court:
449
(a) the reasons why the minor was removed from the parent's or guardian's custody;
450
(b) any services provided to the child and his family in an effort to prevent removal;
451
(c) the need, if any, for continued shelter;
452
(d) the available services that could facilitate the return of the minor to the custody of his
453
parent or guardian; and
454
(e) whether the child has any relatives who may be able and willing to take temporary
455
custody.
456
(7) The court shall consider all relevant evidence provided by persons or entities
457
authorized to present relevant evidence pursuant to this section.
458
(8) If necessary to protect the child, preserve the rights of a party, or for other good cause
459
shown, the court may grant no more than one time-limited continuance, not to exceed five judicial
460
days.
461
(9) If the child is in the protective custody of the division, the court shall order that the
462
minor be released from the protective custody of the division unless it finds, by a preponderance
463
of the evidence, that any one of the following exist:
464
(a) there is a substantial danger to the physical health or safety of the minor and the minor's
465
physical health or safety may not be protected without removing him from his parent's custody.
466
If a minor has previously been adjudicated as abused, neglected, or dependent and a subsequent
467
incident of abuse, neglect, or dependency occurs, that fact constitutes prima facie evidence that the
468
child cannot safely remain in the custody of his parent;
469
(b) the minor is suffering emotional damage, as may be indicated by, but is not limited to,
470
extreme anxiety, depression, withdrawal, or negative aggressive behavior toward self or others,
471
and there are no reasonable means available by which the minor's emotional health may be
472
protected without removing the minor from the custody of his parent;
473
(c) the minor or another minor residing in the same household has been physically or
474
sexually abused, or is [deemed] considered to be at substantial risk of being physically or sexually
475
abused, by a parent, a member of the parent's household, or other person known to the parent. If
476
a parent has received actual notice that physical or sexual abuse by a person known to the parent
477
has occurred, and there is evidence that the parent has allowed the child to be in the physical
478
presence of the alleged abuser, that fact constitutes prima facie evidence that the child is at
479
substantial risk of being physically or sexually abused;
480
(d) the parent is unwilling to have physical custody of the child;
481
(e) the minor has been left without any provision for his support;
482
(f) a parent who has been incarcerated or institutionalized has not or cannot arrange for
483
safe and appropriate care for the minor;
484
(g) a relative or other adult custodian with whom the minor has been left by the parent is
485
unwilling or unable to provide care or support for the minor, the whereabouts of the parent are
486
unknown, and reasonable efforts to locate him have been unsuccessful;
487
(h) the minor is in immediate need of medical care;
488
(i) the physical environment or the fact that the child is left unattended poses a threat to
489
the child's health or safety;
490
(j) the minor or another minor residing in the same household has been neglected;
491
(k) the parent, or an adult residing in the same household as the parent, has been charged
492
or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine
493
laboratory operation, as defined in Section
58-37d-3
, was located in the residence or on the
494
property where the child resided; or
495
(l) the child's welfare is otherwise endangered.
496
(10) (a) The court shall also make a determination on the record as to whether reasonable
497
efforts were made to prevent or eliminate the need for removal of the minor from his home and
498
whether there are available services that would prevent the need for continued removal. If the
499
court finds that the minor can be safely returned to the custody of his parent or guardian through
500
the provision of those services, it shall place the minor with his parent or guardian and order that
501
those services be provided by the division.
502
(b) In making that determination, and in ordering and providing services, the child's health,
503
safety, and welfare shall be the paramount concern, in accordance with federal law.
504
(11) Where the division's first contact with the family occurred during an emergency
505
situation in which the child could not safely remain at home, the court shall make a finding that
506
any lack of preplacement preventive efforts was appropriate.
507
(12) In cases where actual sexual abuse or abandonment, or serious physical abuse or
508
neglect are involved, neither the division nor the court has any duty to make "reasonable efforts"
509
or to, in any other way, attempt to maintain a child in his home, return a child to his home, provide
510
reunification services, or attempt to rehabilitate the offending parent or parents.
511
(13) The court may not order continued removal of a minor solely on the basis of
512
educational neglect as described in Subsection
78-3a-103
(1)(r)(ii).
513
(14) (a) Whenever a court orders continued removal of a minor under this section, it shall
514
state the facts on which that decision is based.
515
(b) If no continued removal is ordered and the minor is returned home, the court shall state
516
the facts on which that decision is based.
517
(15) If the court finds that continued removal and temporary custody are necessary for the
518
protection of a child because harm may result to the child if he were returned home, it shall order
519
continued removal regardless of any error in the initial removal of the child, or the failure of a
520
party to comply with notice provisions, or any other procedural requirement of this chapter or Title
521
62A, Chapter 4a, Child and Family Services.
522
Section 8. Effective date.
523
This act takes effect on July 1, 2002.
523a
S [h
SECTION 9.Appropriation.
523b
(1) SUBJECT TO FUTURE BUDGET CONSTRAINTS, THERE IS APPROPRIATED, AS AN
523c
ONGOING APPROPRIATION, $150,000 FOR FISCAL YEAR 2002-2003 FROM THE GENERAL FUND TO
523d
THE ATTORNEY GENERAL'S OFFICE FOR THE IMPLEMENTATION OF THIS ACT.
523e
(2) THE MONEY APPROPRIATED IN SUBSECTION (1) IS NONLAPSING.
h
] s
Legislative Review Note
as of 1-31-02 1:47 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.