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S.B. 110
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CHILD PLACEMENT DETERMINATIONS
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2002 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Dan R. Eastman
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This act amends the Human Services Code and the Judicial Code. The act changes the
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permanency plan regarding long-term foster care for a child who is three years of age or
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younger. The act expands the grounds for removal of a foster child from the home of the
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foster parents without first providing a hearing to the foster parents. The act modifies
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fingerprinting requirements for household members in a foster home. The act clarifies when
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a juvenile court may order a planned permanent living arrangement other than adoption,
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reunification, guardianship, and kinship placement for a child in the custody of the Division
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of Child and Family Services, in accordance with the requirements of federal law. The act
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makes technical changes.
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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-205, as last amended by Chapter 255, Laws of Utah 2001
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62A-4a-206, as last amended by Chapter 274, Laws of Utah 1998
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62A-4a-209, as enacted by Chapter 250, Laws of Utah 2001
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78-3a-312, as last amended by Chapter 21, Laws of Utah 2001
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78-3a-315, as last amended by Chapter 274, Laws of Utah 1998
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-4a-205
is amended to read:
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62A-4a-205. 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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(i) both of the child's natural parents, unless the whereabouts of a parent are unknown;
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(ii) the child;
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(iii) the child's foster parents; and
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(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] the child's family, specifically what the
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parents must do in order to enable the child to be returned home, specifically how those
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requirements may be 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 parent-time 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) Each treatment plan shall be specific to each child and [his] the child's family, rather
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than general. The division shall train its workers to develop treatment plans that comply with
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federal mandates and the specific needs of the particular child and [his] the child's family.
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(b) All treatment plans and expectations shall be individualized and contain specific time
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frames.
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(c) Treatment plans shall address problems that keep children in placement and keep them
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from achieving permanence in their lives.
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(d) The child's natural parents, foster parents, and where appropriate, stepparents, shall be
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kept informed of and supported to participate in important meetings and procedures related to the
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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]. However, if the
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division documents to the court that there is a compelling reason that adoption, reunification,
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guardianship, and kinship placement are not in the child's best interest, the court may order another
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planned permanent living arrangement in accordance with federal law.
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Section 2.
Section
62A-4a-206
is amended to read:
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62A-4a-206. Process for removal of a child from foster family -- Procedural due
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process.
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(1) (a) The Legislature finds that, except with regard to a child's natural parent or legal
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guardian, a foster family has a very limited but recognized interest in its familial relationship with
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a foster child who has been in the care and custody of that family. In making determinations
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regarding removal of a child from a foster home, the division may not dismiss the foster family as
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a mere collection of unrelated individuals.
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(b) The Legislature finds that children in the temporary custody and custody of the division
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are experiencing multiple changes in foster care placements with little or no documentation, and
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that numerous studies of child growth and development emphasize the importance of stability in
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foster care living arrangements.
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(c) For the reasons described in Subsections (1)(a) and (b), the division shall provide
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procedural due process for a foster family prior to removal of a foster child from their home,
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regardless of the length of time the child has been in that home, unless removal is for the purpose
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of:
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(i) returning the child to [his] the child's natural parent or legal guardian[, or for the
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immediate placement of];
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(ii) immediately placing the child in an approved adoptive home[.];
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(iii) placing the child with a relative, as defined in Subsection
78-3a-307
(5)(d), who
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obtained custody or asserted an interest in the child within the preference period described in
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Subsection
78-3a-307
(8); or
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(iv) placing an Indian child in accordance with preplacement preferences and other
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requirements described in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915.
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(2) (a) The division shall maintain and utilize due process procedures for removal of a
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foster child from a foster home, in accordance with the procedures and requirements of Title 63,
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Chapter 46b, Administrative Procedures Act.
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(b) Those procedures shall include requirements for:
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(i) personal communication with and explanation to foster parents prior to removal of the
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child; and
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(ii) an opportunity for foster parents to present their information and concerns to the
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division and to request a review by a third party neutral fact finder prior to removal of the child.
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(c) If the division determines that there is a reasonable basis to believe that the child is in
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danger or that there is a substantial threat of danger to the health or welfare of the child, it shall
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place the child in emergency foster care during the pendency of the procedures described in this
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subsection, instead of making another foster care placement.
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(3) If the division removes a child from a foster home based upon the child's statement
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alone, the division shall initiate and expedite the processes described in Subsection (2). The
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division may take no formal action with regard to that foster parent's license until after those
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processes, in addition to any other procedure or hearing required by law, have been completed.
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(4) When a complaint is made to the division by a foster child against a foster parent, the
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division shall, within 30 business days, provide the foster parent with information regarding the
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specific nature of the complaint, the time and place of the alleged incident, and who was alleged
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to have been involved.
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(5) Whenever the division places a child in a foster home, it shall provide the foster
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parents with:
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(a) notification of the requirements of this section;
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(b) a written description of the procedures enacted by the division pursuant to Subsection
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(2) and how to access those processes; and
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(c) written notification of the foster parents' ability to petition the juvenile court directly
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for review of a decision to remove a foster child who has been in their custody for 12 months or
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longer, in accordance with the limitations and requirements of Section
78-3a-315
.
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(6) The requirements of this section do not apply to the removal of a child based on a
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foster parent's request for that removal.
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Section 3.
Section
62A-4a-209
is amended to read:
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62A-4a-209. Emergency kinship placement.
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(1) The division may use an emergency kinship placement under Subsection
78-3a-301
(4)
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when:
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(a) the case worker has made the determination that:
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(i) the child's home is unsafe;
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(ii) removal is necessary under the provisions of Section 78-3a-301; and
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(iii) the child's custodial parent or guardian will agree to not remove the child from the
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relative's home who serves as the kinship placement and not have any contact with the child until
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after the shelter hearing required by Section
78-3a-306
;
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(b) a relative, with preference being given to a noncustodial parent in accordance with
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Section
78-3a-307
, can be identified who has the ability and is willing to provide care for the child
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who would otherwise be placed in shelter care, including:
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(i) taking the child to medical, mental health, dental, and educational appointments at the
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request of the division; and
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(ii) the relative has the ability to make the child available to division services and the
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guardian ad litem; and
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(c) the relative agrees to care for the child on an emergency basis under the following
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conditions:
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(i) the relative meets the criteria for an emergency kinship placement under Subsection (2);
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(ii) the relative agrees to not allow the custodial parent or guardian to have any contact
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with the child until after the shelter hearing unless authorized by the division in writing;
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(iii) the relative agrees to contact law enforcement and the division if the custodial parent
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or guardian attempts to make unauthorized contact with the child;
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(iv) the relative agrees to allow the division and the child's guardian ad litem to have
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access to the child;
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(v) the relative has been informed and understands that the division may continue to search
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for other possible kinship placements for long-term care, if needed;
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(vi) the relative is willing to assist the custodial parent or guardian in reunification efforts
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at the request of the division, and to follow all court orders; and
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(vii) the child is comfortable with the relative.
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(2) Before the division places a child in an emergency kinship placement, the division
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must:
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(a) request the name of a reference and when possible, contact the reference and determine
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the answer to the following questions:
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(i) would the person identified as a reference place a child in the home of the emergency
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kinship placement; and
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(ii) are there any other relatives to consider as a possible emergency or long-term
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placement for the child;
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(b) have the custodial parent or guardian sign an emergency kinship placement agreement
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form during the investigation;
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(c) complete a criminal background check described in Sections
62A-4a-202.4
and
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78-3a-307.1
on all persons living in the relative's household;
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(d) complete a home inspection of the relative's home; and
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(e) have the emergency kinship placement approved by a family service specialist.
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(3) As soon as possible after the emergency placement and prior to the shelter hearing
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required by Section
78-3a-306
, the division shall convene a family unity meeting.
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(4) After an emergency kinship placement, the division caseworker must:
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(a) respond to the emergency kinship placement's calls within one hour if the custodial
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parents or guardians attempt to make unauthorized contact with the child or attempt to remove the
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child;
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(b) complete all removal paperwork, including the notice provided to the custodial parents
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and guardians under Section
78-3a-306
;
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(c) contact the attorney general to schedule a shelter hearing;
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(d) complete the kinship procedures required in Section
78-3a-307
, including, within five
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days after placement, the criminal history record check described in Subsection (5); and
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(e) continue to search for other relatives as a possible long-term placement, if needed.
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(5) (a) In order to determine the suitability of the kinship placement and to conduct a
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background screening and investigation of individuals living in the household in which a child is
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placed, each individual living in the household in which the child is placed who has not lived in
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the state substantially year round for the most recent five consecutive years ending on the date the
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investigation is commenced shall be fingerprinted. If no disqualifying record is identified at the
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state level, the fingerprints shall be forwarded by the division to the Federal Bureau of
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Investigation for a national criminal history record check.
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(b) The cost of those investigations shall be borne by whomever received placement of
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the child, except that the division may pay all or part of the cost of those investigations if the
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person with whom the child is placed is unable to pay.
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Section 4.
Section
78-3a-312
is amended to read:
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78-3a-312. Permanency hearing -- Final plan -- Petition for termination of parental
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rights filed -- Hearing on termination of parental rights.
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(1) (a) When reunification services have been ordered in accordance with Section
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78-3a-311
, with regard to a child who is in the custody of the Division of Child and Family
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Services, a permanency hearing shall be held by the court no later than 12 months after the original
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removal of the child.
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(b) When no reunification services were ordered at the dispositional hearing, a permanency
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hearing shall be held within 30 days from the date of the dispositional hearing.
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(2) (a) If reunification services were ordered by the court in accordance with Section
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78-3a-311
, the court shall, at the permanency hearing, determine whether the child may safely be
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returned to the custody of [his] the child's parent. If the court finds, by a preponderance of the
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evidence, that return of the child would create a substantial risk of detriment to the child's physical
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or emotional well-being, the child may not be returned to the custody of [his] the child's parent.
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The failure of a parent or guardian to participate in, comply with, in whole or in part, or to meet
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the goals of a court approved treatment plan constitutes prima facie evidence that return of the
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child to that parent would create a substantial risk of detriment.
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(b) In making a determination under this Subsection (2), the court shall review the report
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prepared by the Division of Child and Family Services, a report prepared by the child's guardian
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ad litem, any report prepared by a foster care citizen review board pursuant to Section
78-3g-103
,
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any evidence regarding the efforts or progress demonstrated by the parent, and the extent to which
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the parent cooperated and availed himself of services provided.
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(3) (a) With regard to a case where reunification services were ordered by the court, if a
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child is not returned to [his] the child's parent or guardian at the permanency hearing, the court
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shall order termination of reunification services to the parent, and make a final determination
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regarding whether termination of parental rights, adoption, or permanent custody and
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guardianship[, or long-term foster care] is the most appropriate final plan for the child, taking into
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account the child's primary permanency goal established by the court pursuant to Section
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78-3a-311
. If the Division of Child and Family Services documents to the court that there is a
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compelling reason that adoption, reunification, guardianship, and kinship placement are not in the
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child's best interest, the court may order another planned permanent living arrangement, in
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accordance with federal law. If the child clearly desires contact with the parent, the court shall take
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the child's desire into consideration in determining the final plan. In addition, the court shall
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establish a concurrent plan that identifies the second most appropriate final plan for the child.
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(b) The court may not extend reunification services beyond 12 months from the date the
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child was initially removed from [his] the child's home, in accordance with the provisions of
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Section
78-3a-311
, except that the court may extend reunification services for no more than 90
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days if it finds that there has been substantial compliance with the treatment plan, that reunification
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is probable within that 90 day period, and that the extension is in the best interest of the child. In
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no event may any reunification services extend beyond 15 months from the date the child was
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initially removed from [his] the child's home. Delay or failure of a parent to establish paternity or
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seek custody does not provide a basis for the court to extend services for that parent beyond that
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12-month period.
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[(b)] (c) The court may, in its discretion, enter any additional order that it determines to
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be in the best interest of the child, so long as that order does not conflict with the requirements and
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provisions of [Subsection] Subsections (3)(a) and (b). The court may order the division to provide
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protective supervision or other services to a child and the child's family after the division's custody
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of a child has been terminated.
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(4) If the final plan for the child is to proceed toward termination of parental rights, the
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petition for termination of parental rights shall be filed, and a pretrial held, within 45 calendar days
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after the permanency hearing.
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(5) Any party to an action may, at any time, petition the court for an expedited permanency
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hearing on the basis that continuation of reunification efforts are inconsistent with the permanency
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needs of the child. If the court so determines, it shall order, in accordance with federal law, that
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the child be placed in accordance with the permanency plan, and that whatever steps are necessary
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to finalize the permanent placement of the child be completed as quickly as possible.
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(6) Nothing in this section may be construed to:
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(a) entitle any parent to reunification services for any specified period of time;
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(b) limit a court's ability to terminate reunification services at any time prior to a
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permanency hearing; or
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(c) limit or prohibit the filing of a petition for termination of parental rights by any party,
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or a hearing on termination of parental rights, at any time prior to a permanency hearing. If a
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petition for termination of parental rights is filed prior to the date scheduled for a permanency
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hearing, the court may consolidate the hearing on termination of parental rights with the
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permanency hearing. If the court consolidates the hearing on termination of parental rights with
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the permanency hearing, it shall first make a finding whether reasonable efforts have been made
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by the Division of Child and Family Services to finalize the permanency goal for the child, and any
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reunification services shall be terminated in accordance with the time lines described in Section
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78-3a-311
. A decision on the petition for termination of parental rights shall be made within 18
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months from the date of the child's removal.
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Section 5.
Section
78-3a-315
is amended to read:
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78-3a-315. Review of foster care removal -- Foster parent's standing.
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(1) With regard to a child in the custody of the Division of Child and Family Services who
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is the subject of a petition alleging abuse, neglect, or dependency, and who has been placed in
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foster care with a foster family, the Legislature finds that:
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(a) except with regard to the child's natural parents, a foster family has a very limited but
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recognized interest in its familial relationship with the child; and
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(b) children in the custody of the division are experiencing multiple changes in foster care
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placements with little or no documentation, and that numerous studies of child growth and
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development emphasize the importance of stability in foster care living arrangements.
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(2) For the reasons described in Subsection (1), the Legislature finds that, except with
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regard to the child's natural parents, procedural due process protections must be provided to a
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foster family prior to removal of a foster child from their home.
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(3) (a) A foster parent who has had a foster child in his custody for 12 months or longer
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may petition the juvenile court for a review and determination of the appropriateness of a decision
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by the Division of Child and Family Services to remove the child from [his] the child's home,
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unless the removal was for the purpose of:
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(i) returning the child to [his] the child's natural parent[, or for the immediate placement
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of] or legal guardian;
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(ii) immediately placing the child in an approved adoptive home[.];
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(iii) placing the child with a relative, as defined in Subsection
78-3a-307
(5)(d), who
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obtained custody or asserted an interest in the child within the preference period described in
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Subsection
78-3a-307
(8); or
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(iv) placing an Indian child in accordance with preplacement preferences and other
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requirements described in the Indian Child Welfare Act, 25 U.S.C. Sec. 1915.
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(b) The foster parent may petition the court under this section without exhausting
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administrative remedies within the division.
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(c) The court may order the division to place the child in a specified home, and shall base
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its determination on the best interest of the child.
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(4) The requirements of this section do not apply to the removal of a child based on a
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foster parent's request for that removal.
Legislative Review Note
as of 1-3-02 12:05 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.