Download Zipped Introduced WP 9 HB0222.ZIP
[Status][Bill Documents][Fiscal Note][Bills Directory]
H.B. 222
1
CHILD WELFARE PROCEEDINGS
2
AMENDMENTS
3
2003 GENERAL SESSION
4
STATE OF UTAH
5
Sponsor: Greg J. Curtis
6
This act modifies the Judicial Code. This act phases in expanded access to abuse, neglect,
7
and dependency hearings and records of those hearings, beginning with Juvenile Court
8
districts identified by the Judicial Council as pilot districts. This act requires the Judicial
9
Council to report to the Legislature on the effects of this act. This act includes revisors
10
instructions.
11
This act affects sections of Utah Code Annotated 1953 as follows:
12
AMENDS:
13
78-3-21, as last amended by Chapter 221, Laws of Utah 2000
14
78-3a-115, as last amended by Chapters 171 and 237, Laws of Utah 1998
15
78-3a-116, as last amended by Chapter 274, Laws of Utah 1998
16
78-3a-406, as renumbered and amended by Chapter 260, Laws of Utah 1994
17
ENACTS:
18
78-3a-115.1, Utah Code Annotated 1953
19
This act enacts uncodified material.
20
Be it enacted by the Legislature of the state of Utah:
21
Section 1.
Section
78-3-21
is amended to read:
22
78-3-21. Judicial Council -- Creation -- Members -- Terms and election --
23
Responsibilities -- Reports.
24
(1) The Judicial Council, established by Article VIII, Section 12, Utah Constitution,
25
shall be composed of:
26
(a) the chief justice of the Supreme Court;
27
(b) one member elected by the justices of the Supreme Court;
28
(c) one member elected by the judges of the Court of Appeals;
29
(d) five members elected by the judges of the district courts;
30
(e) two members elected by the judges of the juvenile courts;
31
(f) three members elected by the justice court judges; and
32
(g) a member or ex officio member of the Board of Commissioners of the Utah State
33
Bar who is an active member of the Bar in good standing elected by the Board of
34
Commissioners.
35
(2) (a) The chief justice of the Supreme Court shall act as presiding officer of the
36
council and chief administrative officer for the courts. The chief justice shall vote only in the
37
case of a tie.
38
(b) All members of the council shall serve for three-year terms. If a council member
39
should die, resign, retire, or otherwise fail to complete a term of office, the appropriate
40
constituent group shall elect a member to complete the term of office. In courts having more
41
than one member, the members shall be elected to staggered terms. The person elected to the
42
Judicial Council by the Board of Commissioners shall be a member or ex officio member of
43
the Board of Commissioners and an active member of the Bar in good standing at the time the
44
person is elected. The person may complete a three-year term of office on the Judicial Council
45
even though the person ceases to be a member or ex officio member of the Board of
46
Commissioners. The person shall be an active member of the Bar in good standing for the
47
entire term of the Judicial Council.
48
(c) Elections shall be held under rules made by the Judicial Council.
49
(3) The council is responsible for the development of uniform administrative policy for
50
the courts throughout the state. The presiding officer of the Judicial Council is responsible for
51
the implementation of the policies developed by the council and for the general management of
52
the courts, with the aid of the administrator. The council has authority and responsibility to:
53
(a) establish and assure compliance with policies for the operation of the courts,
54
including uniform rules and forms; and
55
(b) publish and submit to the governor, the chief justice of the Supreme Court, and the
56
Legislature an annual report of the operations of the courts, which shall include financial and
57
statistical data and may include suggestions and recommendations for legislation.
58
(4) (a) The Judicial Council shall make rules establishing:
59
(i) standards for judicial competence; and
60
(ii) a formal program for the evaluation of judicial performance containing the
61
elements of and meeting the requirements of this Subsection (4).
62
(b) The Judicial Council shall ensure that the formal judicial performance evaluation
63
program has improvement in the performance of individual judges, court commissioners, and
64
the judiciary as its goal.
65
(c) The Judicial Council shall ensure that the formal judicial performance evaluation
66
program includes at least all of the following elements:
67
(i) a requirement that judges complete a certain number of hours of approved judicial
68
education each year;
69
(ii) a requirement that each judge certify that he is:
70
(A) physically and mentally competent to serve; and
71
(B) in compliance with the Codes of Judicial Conduct and Judicial Administration; and
72
(iii) a requirement that the judge receive a satisfactory score on questions identified by
73
the Judicial Council as relating to judicial certification on a survey of members of the Bar
74
developed by the Judicial Council in conjunction with the American Bar Association.
75
(d) The Judicial Council shall ensure that the formal judicial performance evaluation
76
program considers at least the following criteria:
77
(i) integrity;
78
(ii) knowledge;
79
(iii) understanding of the law;
80
(iv) ability to communicate;
81
(v) punctuality;
82
(vi) preparation;
83
(vii) attentiveness;
84
(viii) dignity;
85
(ix) control over proceedings; and
86
(x) skills as a manager.
87
(e) (i) The Judicial Council shall provide the judicial performance evaluation
88
information and the disciplinary data required by Subsection
20A-7-702
(2) to the Lieutenant
89
Governor for publication in the voter information pamphlet.
90
(ii) Not later than August 1 of the year before the expiration of the term of office of a
91
municipal court judge, the Judicial Council shall provide the judicial performance evaluation
92
information required by Subsection
20A-7-702
(2) to the appointing authority of a municipal
93
justice court judge.
94
(5) The council shall establish standards for the operation of the courts of the state
95
including, but not limited to, facilities, court security, support services, and staff levels for
96
judicial and support personnel.
97
(6) The council shall by rule establish the time and manner for destroying court
98
records, including computer records, and shall establish retention periods for these records.
99
(7) (a) Consistent with the requirements of judicial office and security policies, the
100
council shall establish procedures to govern the assignment of state vehicles to public officers
101
of the judicial branch.
102
(b) The vehicles shall be marked in a manner consistent with Section
41-1a-407
and
103
may be assigned for unlimited use, within the state only.
104
(8) (a) The council shall advise judicial officers and employees concerning ethical
105
issues and shall establish procedures for issuing informal and formal advisory opinions on
106
these issues.
107
(b) Compliance with an informal opinion is evidence of good faith compliance with the
108
Code of Judicial Conduct.
109
(c) A formal opinion constitutes a binding interpretation of the Code of Judicial
110
Conduct.
111
(9) (a) The council shall establish written procedures authorizing the presiding officer
112
of the council to appoint judges of courts of record by special or general assignment to serve
113
temporarily in another level of court in a specific court or generally within that level. The
114
appointment shall be for a specific period and shall be reported to the council.
115
(b) These procedures shall be developed in accordance with Subsection
78-3-24
(10)
116
regarding temporary appointment of judges.
117
(10) The Judicial Council may by rule designate municipalities in addition to those
118
designated by statute as a location of a trial court of record. There shall be at least one court
119
clerk's office open during regular court hours in each county. Any trial court of record may
120
hold court in any municipality designated as a location of a court of record. Designations by
121
the Judicial Council may not be made between July 1, 1997, and July 1, 1998.
122
(11) The Judicial Council shall by rule determine whether the administration of a court
123
shall be the obligation of the administrative office of the courts or whether the administrative
124
office of the courts should contract with local government for court support services.
125
(12) The Judicial Council may by rule direct that a district court location be
126
administered from another court location within the county.
127
(13) The Judicial Council shall establish and supervise the Office of Guardian Ad
128
Litem Director, in accordance with the provisions of Sections
78-3a-911
and
78-3a-912
, and
129
assure compliance of the guardian ad litem program with state and federal law, regulation, and
130
policy, and court rules.
131
(14) The Judicial Council shall establish and maintain, in cooperation with the Office of
132
Recovery Services within the Department of Human Services, the part of the state case registry
133
that contains records of each support order established or modified in the state on or after
134
October 1, 1998, as is necessary to comply with the Social Security Act, 42 U.S.C. Sec. 654a.
135
(15) (a) On or before November 1, 2003, the Judicial Council, by rule, shall select one
136
or more districts as pilot districts for purposes of Sections
78-3a-115
,
78-3a-115.1
, and
137
78-3a-116
.
138
(b) Prior to the 2005 Annual General Session, the Judicial Council shall report to the
139
Child Welfare Legislative Oversight Panel and the Judiciary Interim Committee on the effects
140
of this act and recommend whether the provisions of this act should be continued, modified, or
141
repealed.
142
Section 2.
Section
78-3a-115
is amended to read:
143
78-3a-115. Hearings -- Public excluded, exceptions -- Victims admitted -- Minor's
144
cases heard separately from adult cases -- Minor or parents or custodian heard
145
separately -- Continuance of hearing -- Consolidation of proceedings involving more than
146
one minor.
147
(1) Hearings in minor's cases shall be held before the court without a jury and may be
148
conducted in an informal manner.
149
(a) In abuse, neglect, and dependency cases in all districts other than pilot districts
150
selected by the Judicial Council under Subsection
78-3-21
(15)(a), the court shall exclude all
151
persons from hearings held prior to July 1, 2005 who do not have a direct interest in the
152
proceedings.
153
(b) In delinquency cases the court shall admit all persons who have a direct interest in
154
the case and may admit persons requested by the parent or legal guardian to be present. The
155
court shall exclude all other persons except as provided in Subsection (1)(c).
156
(c) In delinquency cases in which the minor charged is 14 years of age or older, the
157
court shall admit any person unless the hearing is closed by the court upon findings on the
158
record for good cause if:
159
(i) the minor has been charged with an offense which would be a felony if committed
160
by an adult; or
161
(ii) the minor is charged with an offense that would be a class A or B misdemeanor if
162
committed by an adult, and the minor has been previously charged with an offense which
163
would be a misdemeanor or felony if committed by an adult.
164
(d) The victim of any act charged in a petition or information involving an offense
165
committed by a minor which if committed by an adult would be a felony or a class A or class B
166
misdemeanor shall, upon request, be afforded all rights afforded victims in Title 77, Chapter
167
36, Cohabitant Abuse Procedures Act, Title 77, Chapter 37, Victims' Rights, and Title 77,
168
Chapter 38, Rights of Crime Victims Act. The notice provisions in Section
77-38-3
do not
169
apply to important juvenile justice hearings as defined in Section
77-38-2
.
170
(e) A victim, upon request to appropriate juvenile court personnel, shall have the right
171
to inspect and duplicate juvenile court legal records that have not been expunged concerning:
172
(i) the scheduling of any court hearings on the petition;
173
(ii) any findings made by the court; and
174
(iii) any sentence or decree imposed by the court.
175
(2) Minor's cases shall be heard separately from adult cases. The minor or his parents
176
or custodian may be heard separately when considered necessary by the court. The hearing
177
may be continued from time to time to a date specified by court order.
178
(3) When more than one minor is involved in a home situation which may be found to
179
constitute neglect or dependency, or when more than one minor is alleged to be involved in the
180
same law violation, the proceedings may be consolidated, except that separate hearings may be
181
held with respect to disposition.
182
Section 3.
Section
78-3a-115.1
is enacted to read:
183
78-3a-115.1. Access to abuse, neglect, and dependency hearings.
184
(1) This section applies:
185
(a) beginning November 1, 2003, to districts selected by the Judicial Council as pilot
186
districts under Subsection
78-3-21
(15)(a); and
187
(b) beginning July 1, 2005, to all other districts.
188
(2) (a) In abuse, neglect, and dependency cases the court shall admit any person to a
189
hearing, including a hearing under Subsection
78-3a-320
(3), unless the court makes a finding
190
upon the record that the person's presence at the hearing would:
191
(i) be detrimental to the best interest of a child who is a party to the proceeding;
192
(ii) impair the fact-finding process; or
193
(iii) be otherwise contrary to the interests of justice.
194
(b) The court may exclude a person from a hearing under Subsection (2)(a) on its own
195
motion or by motion of a party to the proceeding.
196
Section 4.
Section
78-3a-116
is amended to read:
197
78-3a-116. Hearings -- Record -- County attorney or district attorney
198
responsibilities -- Attorney general responsibilities -- Admissibility of evidence.
199
(1) (a) A verbatim record of the proceedings shall be taken by an official court reporter
200
or by means of a mechanical recording device in all cases that might result in deprivation of
201
custody as defined in this chapter. In all other cases a verbatim record shall also be made
202
unless dispensed with by the court.
203
(b) (i) Notwithstanding any other provision, including Title 63, Chapter 2, Government
204
Records Access and Management Act, a record of a proceeding made under Subsection(1)(a)
205
shall be released by the court to any person upon a finding on the record for good cause.
206
(ii) Following a petition for a record of a proceeding made under Subsection (1)(a), the
207
court shall:
208
(A) provide notice to all subjects of the record that a request for release of the record
209
has been made; and
210
(B) allow sufficient time for the subjects of the record to respond before making a
211
finding on the petition.
212
(iii) A record of a proceeding may not be released under this Subsection (1)(b) if the
213
court's jurisdiction over the subjects of the proceeding ended more than 12 months prior to the
214
request.
215
(iv) For purposes of this Subsection (1)(b):
216
(A) "record of a proceeding" does not include documentary materials of any type
217
submitted to the court as part of the proceeding, including items submitted under Subsection
218
(4)(a); and
219
(B) "subjects of the record" includes the child's guardian ad litem, the child's legal
220
guardian, the Division of Child and Family Services, and any other party to the proceeding.
221
(v) This Subsection (1)(b) applies:
222
(A) to records of proceedings made on or after November 1, 2003 in districts selected
223
by the Judicial Council as pilot districts under Subsection
78-3-21
(15)(a); and
224
(B) to records of proceedings made on or after July 1, 2005 in all other districts.
225
(2) (a) Except as provided in Subsection (2)(b), the county attorney or, if within a
226
prosecution district, the district attorney shall represent the state in any proceeding in a minor's
227
case.
228
(b) The attorney general shall enforce all provisions of Title 62A, Chapter 4a, Child
229
and Family Services, and Title 78, Chapter 3a, Juvenile Courts, relating to:
230
(i) protection or custody of an abused, neglected, or dependent child; and
231
(ii) petitions for termination of parental rights.
232
(c) The attorney general shall represent the Division of Child and Family Services in
233
actions involving minors who have not been adjudicated as abused or neglected, but who are
234
otherwise committed to the custody of that division by the juvenile court, and who are
235
classified in the division's management information system as having been placed in custody
236
primarily on the basis of delinquent behavior or a status offense. Nothing in this Subsection
237
(2)(c) may be construed to affect the responsibility of the county attorney or district attorney to
238
represent the state in those matters, in accordance with the provisions of Subsection (2)(a).
239
(3) The board may adopt special rules of procedure to govern proceedings involving
240
violations of traffic laws or ordinances, fish and game laws, and boating laws. However,
241
proceedings involving offenses under Section
78-3a-506
are governed by that section regarding
242
suspension of driving privileges.
243
(4) (a) For the purposes of determining proper disposition of the minor in dispositional
244
hearings and establishing the fact of abuse, neglect, or dependency in adjudication hearings and
245
in hearings upon petitions for termination of parental rights, written reports and other material
246
relating to the minor's mental, physical, and social history and condition may be received in
247
evidence and may be considered by the court along with other evidence. The court may require
248
that the person who wrote the report or prepared the material appear as a witness if the person
249
is reasonably available.
250
(b) For the purpose of determining proper disposition of a minor alleged to be or
251
adjudicated as abused, neglected, or dependent, dispositional reports prepared by Foster Care
252
Citizen Review Boards pursuant to Section
78-3g-103
may be received in evidence and may be
253
considered by the court along with other evidence. The court may require any person who
254
participated in preparing the dispositional report to appear as a witness, if the person is
255
reasonably available.
256
(5) For the purpose of establishing the fact of abuse, neglect, or dependency, the court
257
may, in its discretion, consider evidence of statements made by a minor under eight years of
258
age to a person in a trust relationship.
259
Section 5.
Section
78-3a-406
is amended to read:
260
78-3a-406. Notice -- Nature of proceedings.
261
(1) After a petition for termination of parental rights has been filed, notice of that fact
262
and of the time and place of the hearing shall be provided, in accordance with the Utah Rules
263
of Civil Procedure, to the parents, the guardian, the person or agency having legal custody of
264
the child, and to any person acting in loco parentis to the child.
265
(2) A hearing shall be held specifically on the question of termination of parental rights
266
no sooner than ten days after service of summons is complete. A verbatim record of the
267
proceedings shall be taken and the parties shall be advised of their right to counsel. The
268
summons shall contain a statement to the effect that the rights of the parent or parents are
269
proposed to be permanently terminated in the proceedings. That statement may be contained in
270
the summons originally issued in the proceeding or in a separate summons subsequently issued.
271
(3) The proceedings are civil in nature and are governed by the Utah Rules of Civil
272
Procedure. The court shall in all cases require the petitioner to establish the facts by clear and
273
convincing evidence, and shall give full and careful consideration to all of the evidence
274
presented with regard to the constitutional rights and claims of the parent and, if a parent is
275
found, by reason of his conduct or condition, to be unfit or incompetent based upon any of the
276
grounds for termination described in this part, the court shall then consider the welfare and best
277
interest of the child of paramount importance in determining whether termination of parental
278
rights shall be ordered.
279
[(4) Any hearing held pursuant to this part shall be held in closed court without
280
admittance of any person who is not necessary to the action or proceeding, unless the court
281
determines that holding the hearing in open court will not be detrimental to the child.]
282
Section 6. Revisors instructions.
283
It is the intent of the Legislature that, in preparing the Utah Code database for
284
publication, the Office of Legislative Research and General Counsel shall change the reference
285
in Subsection
78-3-21
(15)(b) from "this act" to the act's designated chapter number in Laws of
286
Utah, 2003.
Legislative Review Note
as of 1-24-03 11:39 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.