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First Substitute H.B. 151
Representative Eric K. Hutchings proposes the following substitute bill:
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PROTECTIVE CUSTODY OF ABUSED,
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NEGLECTED, OR DEPENDENT CHILDREN
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2004 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Eric K. Hutchings
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LONG TITLE
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General Description:
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This bill amends the Child and Family Services and Judicial Codes.
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Highlighted Provisions:
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This bill:
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. prohibits a child from being taken into protective custody for child abuse, neglect,
13
or dependency except by a peace officer;
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. authorizes a child welfare worker from the Division of Child and Family Services to
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accompany a peace officer taking a child into protective custody;
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. requires a peace officer who takes a child into protective custody to immediately
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notify the Division of Child and Family Services;
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. prohibits a child from being taken into protective custody prior to completion of an
19
investigation by a peace officer under contract with the Division of Child and
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Family Services, except in exigent circumstances;
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. provides standards for investigations conducted prior to taking a child into
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protective custody;
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. authorizes the Division of Child and Family Services to contract with peace
24
officers;
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. authorizes a peace officer under contract with the Division of Child and Family
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Services to access the division's Management Information System;
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. requires that investigations of reports that a child within the custody of the Division
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of Child and Family Services has been abused or neglected be conducted by a peace
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officer;
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. references existing law regarding protective custody by a physician, hospital, or
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similar medical facility for not to exceed 72 hours under certain conditions;
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. makes conforming amendments; and
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. makes technical corrections.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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This bill takes effect on July 1, 2004.
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Utah Code Sections Affected:
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AMENDS:
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62A-4a-202.1 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah
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2003
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62A-4a-202.2, as last amended by Chapter 10, Laws of Utah 2001, First Special
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Session
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62A-4a-202.3, as last amended by Chapter 265, Laws of Utah 2002
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62A-4a-202.8, as enacted by Chapter 326, Laws of Utah 2003
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62A-4a-209, as last amended by Chapters 265 and 306, Laws of Utah 2002
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62A-4a-409, as last amended by Chapter 265, Laws of Utah 2002
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62A-4a-410, as last amended by Chapter 206, Laws of Utah 2002
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78-3a-106, as last amended by Chapter 267, Laws of Utah 2003
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78-3a-301 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah 2003
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78-3a-306, as last amended by Chapters 131 and 267, Laws of Utah 2003
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-4a-202.1 (Effective 07/01/04)
is amended to read:
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62A-4a-202.1 (Effective 07/01/04). Peace officer taking a minor into protective
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custody with or without warrant or court order -- Caseworker may accompany --
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Consent or specified circumstances -- Shelter care or emergency kinship.
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(1) A [state officer,] peace officer[, or child welfare worker] may not, without the
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consent of the minor's parent or guardian, a warrant, or a court order issued under Section
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78-3a-106
, remove a minor from the minor's home or school, or take a minor into protective
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custody unless there exist exigent circumstances.
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(2) A [child welfare worker within the division may take action] peace officer taking a
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minor into protective custody under Subsection (1) may be accompanied by a [peace officer, or
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without a peace officer when a peace officer is not reasonably available] child welfare worker
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from the division.
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(3) If possible, consistent with the minor's safety and welfare, and before [taking] a
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minor is taken into protective custody by a peace officer, the [worker] division shall [also]
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determine whether there are services reasonably available to the [worker] division which, if
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provided to the minor's parent or to the minor, would eliminate the need to remove the minor
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from the custody of the minor's parent or guardian. If those services are reasonably available,
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they shall be utilized. In determining whether services are reasonably available, and in making
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reasonable efforts to provide those services, the minor's health, safety, and welfare shall be the
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[worker's] division's paramount concern.
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(4) (a) A minor removed or taken into custody under this section may not be placed or
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kept in a secure detention facility pending court proceedings unless the minor is detainable
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based on guidelines promulgated by the Division of Juvenile Justice Services.
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(b) A minor removed from the custody of the minor's parent or guardian but who does
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not require physical restriction shall be given temporary care in:
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(i) a shelter facility; or
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(ii) an emergency kinship placement in accordance with Section
62A-4a-209
.
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Section 2.
Section
62A-4a-202.2
is amended to read:
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62A-4a-202.2. Notice to parents upon removal of child -- Locating noncustodial
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parent -- Written statement of procedural rights and preliminary proceedings.
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(1) (a) Any peace officer [or caseworker] who takes a minor into protective custody
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under exigent circumstances, pursuant to Section
62A-4a-202.1
, shall immediately notify the
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division. The division shall immediately use reasonable efforts to locate and inform, through
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the most efficient means available, the parents, including a noncustodial parent, the guardian,
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or responsible relative:
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(i) that the minor has been taken into protective custody;
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(ii) the reasons for removal and placement in protective custody;
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(iii) that a written statement is available that explains the parent's procedural rights and
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the preliminary stages of the investigation and shelter hearing; and
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(iv) of a telephone number where the parent may access further information.
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(b) For purposes of locating and informing the noncustodial parent as required in
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Subsection (1)(a), the division shall search for the noncustodial parent through the national
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parent locator database if the division is unable to locate the noncustodial parent through other
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reasonable efforts.
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(2) The attorney general's office shall adopt, print, and distribute a form for the written
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statement described in Subsection (1) (a)(iii). The statement shall be made available to the
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division and for distribution in schools, health care facilities, local police and sheriff's offices,
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the division, and any other appropriate office within the Department of Human Services. The
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notice shall be in simple language and include at least the following information:
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(a) the conditions under which a minor may be released, hearings that may be required,
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and the means by which the parent may access further specific information about a minor's case
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and conditions of protective and temporary custody; and
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(b) the rights of a minor and of the parent or guardian to legal counsel and to appeal.
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(3) If a good faith attempt was made by the [peace officer or caseworker] division to
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notify the parent or guardian in accordance with the requirements of Subsection (1), failure to
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notify shall be considered to be due to circumstances beyond the control of the [peace officer or
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caseworker] division and may not be construed to permit a new defense to any juvenile or
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judicial proceeding or to interfere with any rights, procedures, or investigations provided for by
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this chapter or Title 78, Chapter 3a, Juvenile [Courts] Court Act of 1996.
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Section 3.
Section
62A-4a-202.3
is amended to read:
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62A-4a-202.3. Investigation prior to custody -- Substantiation of reports -- Child
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in protective custody.
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(1) As used in this section "peace officer" means an individual with practical criminal
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investigatory experience and training acting as an independent investigator of criminal
118
investigations.
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[(1) When] (2) Except as provided in Subsection (6), a child [is] may not be taken into
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protective custody in accordance with [Section] Sections
62A-4a-202.1
,
78-3a-106
, or
121
78-3a-301
, [or when the division takes any other action which would require a shelter hearing
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under Subsection
78-3a-306
(1), the division shall immediately initiate] until a peace officer
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under contract with the division, in accordance with this section, completes an investigation of
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the allegations and circumstances [of the minor and the facts surrounding] that could result in
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the minor's being taken into protective custody.
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[(2)] (3) (a) The [division's] investigation by the peace officer shall include, among
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other actions necessary to meet reasonable professional standards:
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[(a)] (i) a search for and review of any records of past reports of abuse or neglect
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involving the same child, any sibling or other child residing in that household, and the alleged
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perpetrator;
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[(b)] (ii) with regard to a child who is five years of age or older, a personal interview
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with the child outside of the presence of the alleged perpetrator, conducted in accordance with
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the requirements of Subsection [(7)] (11);
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[(c)] (iii) an interview with the child's natural parents or other guardian, unless their
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whereabouts are unknown;
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[(d)] (iv) an interview with the person who reported the abuse, unless anonymous;
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[(e)] (v) where possible and appropriate, interviews with other third parties who have
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had direct contact with the child, including school personnel and the child's health care
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provider;
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[(f)] (vi) an unscheduled visit to the child's home, unless the [division] peace officer
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has reasonable cause to believe that the reported abuse was committed by a person who does
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not:
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[(i)] (A) live in the child's home; or
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[(ii)] (B) have access to the child; and
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[(g)] (vii) if appropriate and indicated in any case alleging physical injury, sexual
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abuse, or failure to meet the child's medical needs, a medical examination by an appropriate
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medical practitioner. That examination shall be obtained no later than 24 hours after the child
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was placed in protective custody.
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(b) For purposes of Subsection (3)(a)(vii), if the child is taken into protective custody
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prior to completion of the investigation, the examination shall be obtained no later than 24
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hours after the child was taken into protective custody.
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[(3)] (4) The [division] peace officer may rely on a written report of [a prior] an
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interview required under Subsection (3) rather than conducting an additional interview, if:
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(a) the division, a peace officer, or a law enforcement [has] agency previously
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conducted the interview as part of a timely and thorough investigation regarding the alleged
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abuse or neglect and [has] produced a written report; and
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[(b) that investigation included one or more of the interviews required by Subsection
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(2); and]
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[(c) the division finds that an additional interview is not in the best interest of the
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child.]
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(b) the law enforcement officer determines that repeating the interview is not necessary
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due to the quality of the interview and written report.
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(5) (a) The division shall contract with, but may not otherwise employ, law
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enforcement officers to meet the requirements of this section.
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(b) A peace officer under contract with the division:
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(i) may access the division's Management Information System under Section
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62A-4a-116
; and
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(ii) is subject to the contract provider limited access to information in the Management
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Information System under Subsection
62A-4a-116
(6), except that the peace officer may access
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any information necessary to complete the investigation required by this section.
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(6) (a) Under exigent circumstances, a child may be taken into protective custody prior
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to completion of the investigation required in Subsection (2).
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(b) If a child is taken into protective custody prior to the completion of the
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investigation, the peace officer shall complete the investigation as soon thereafter as possible.
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[(4)] (7) (a) The division's determination of whether a report of alleged abuse, neglect,
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or dependency is substantiated or unsubstantiated may be based on the child's statements alone.
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(b) Inability to identify or locate the perpetrator may not be used by the division as a
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basis for determining that a report is unsubstantiated, or for closing the case.
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(c) The division may not determine a case to be unsubstantiated or identify a case as
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unsubstantiated solely because the perpetrator was an out-of-home perpetrator.
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(d) Decisions regarding whether a report is substantiated, unsubstantiated, or without
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merit shall be based on the facts of the case at the time the report was made.
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[(5)] (8) The division should maintain protective custody of [the] a child taken into
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protective custody in accordance with this section and Sections
62A-4a-202.1
,
78-3a-106
, or
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78-3a-301
if it finds that one or more of the following conditions exist:
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(a) the minor has no natural parent, guardian, or responsible relative who is able and
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willing to provide safe and appropriate care for the minor;
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(b) shelter of the minor is a matter of necessity for the protection of the minor and there
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are no reasonable means by which the minor can be protected in the minor's home or the home
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of a responsible relative;
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(c) there is substantial evidence that the parent or guardian is likely to flee the
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jurisdiction of the court; or
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(d) the minor has left a previously court ordered placement.
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[(6)] (9) (a) Within 24 hours after receipt of a child into protective custody, excluding
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weekends and holidays, the division shall convene a child protection team to review the
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circumstances regarding removal of the child from the child's home or school, and prepare the
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testimony and evidence that will be required of the division at the shelter hearing, in
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accordance with Section
78-3a-306
.
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(b) Members of that team shall include:
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(i) the caseworker assigned to the case and the caseworker who made the decision to
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remove the child;
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(ii) a representative of the school or school district in which the child attends school;
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(iii) the peace officer who removed the child from the home;
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(iv) a representative of the appropriate Children's Justice Center, if one is established
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within the county where the child resides;
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(v) if appropriate, and known to the division, a therapist or counselor who is familiar
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with the child's circumstances; and
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(vi) any other individuals as determined to be appropriate and necessary by the team
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coordinator and chair.
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(c) At that 24-hour meeting, the division shall have available for review and
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consideration, the complete child protective services and foster care history of the child and the
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child's parents and siblings.
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[(7)] (10) After receipt of a child into protective custody and prior to the adjudication
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hearing, all investigative interviews with the child that are initiated by the division shall be
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audio or video taped, and the child shall be allowed to have a support person of the child's
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choice present. That support person may not be an alleged perpetrator.
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[(8)] (11) The division shall cooperate with law enforcement investigations regarding
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the alleged perpetrator.
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[(9)] (12) The division may not close [an investigation] a case solely on the grounds
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that the division [investigator], or a peace officer conducting an investigation under this
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section, is unable to locate the child, until all reasonable efforts have been made to locate the
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child and family members[. Those efforts include], including:
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(a) visiting the home at times other than normal work hours;
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(b) contacting local schools;
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(c) contacting local, county, and state law enforcement agencies; and
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(d) checking public assistance records.
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Section 4.
Section
62A-4a-202.8
is amended to read:
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62A-4a-202.8. Meeting within 24 hours.
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(1) If the division files a petition under Subsection
78-3a-305
(1) or (2) but [does not
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take] the child is not taken into protective custody, the division shall convene a child protection
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team meeting within 24 hours of the filing, excluding weekends and holidays, to review the
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circumstances regarding the filing of the petition and to develop a safety plan to protect the
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child from further abuse or neglect.
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(2) The team shall include as many persons under Subsection
62A-4a-202.3
[(6)] (9)(b)
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as appropriate.
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(3) At its meeting the team shall review the complete child protective services and
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foster care history of the child and the child's parents and siblings.
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Section 5.
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
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62A-4a-202.1
[(6)] (5) when:
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(a) the caseworker 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
62A-4a-202.1
; 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
247
until after the shelter hearing required by Section
78-3a-306
;
248
(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
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child who would otherwise be placed in shelter care, including:
251
(i) taking the child to medical, mental health, dental, and educational appointments at
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the 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
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(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
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parent 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
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search 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
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efforts 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] to
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determine [the answer to the following questions] whether:
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(i) [would] the person identified as a reference would place a child in the home of the
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emergency kinship placement; and
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(ii) [are] there are 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
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agreement 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
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the child;
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(b) complete all removal paperwork, including the notice provided to the custodial
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parents and guardians under Section
78-3a-306
;
292
(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
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five 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
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is placed, each individual living in the household in which the child is placed who has not lived
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in the state substantially year round for the most recent five consecutive years ending on the
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date the investigation is commenced shall be fingerprinted. If no disqualifying record is
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identified at the state level, the fingerprints shall be forwarded by the division to the Federal
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Bureau of 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 6.
Section
62A-4a-409
is amended to read:
307
62A-4a-409. Investigation by division -- Temporary protective custody --
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Preremoval interviews of children.
309
(1) The division shall make a thorough [pre-removal] investigation upon receiving
310
either an oral or written report of alleged abuse, neglect, fetal alcohol syndrome, or fetal drug
311
dependency, when there is reasonable cause to suspect a situation of abuse, neglect, fetal
312
alcohol syndrome, or fetal drug dependency. The primary purpose of [that] the investigation
313
shall be protection of the child.
314
(2) The [preremoval] investigation required under Subsection (1):
315
(a) shall [include] meet the [same investigative] investigation requirements [described
316
in Section] of Subsection
62A-4a-202.3
[.](3); and
317
(b) may be satisfied by completion of the investigation required by Section
318
62A-4a-202.3
.
319
(3) The division shall make a written report of its investigation. The written report
320
shall include a determination regarding whether the alleged abuse or neglect was substantiated,
321
unsubstantiated, or without merit.
322
(4) (a) The division shall use an interdisciplinary approach whenever possible in
323
dealing with reports made under this part.
324
(b) For this purpose, the division shall convene appropriate interdisciplinary "child
325
protection teams" to assist it in its protective, diagnostic, assessment, treatment, and
326
coordination services.
327
(c) A representative of the division shall serve as the team's coordinator and chair.
328
Members of the team shall serve at the coordinator's invitation, and whenever possible, the
329
team shall include representatives of health, mental health, education, law enforcement
330
agencies, and other appropriate agencies or individuals.
331
(5) In any case where the division supervises, governs, or directs the affairs of any
332
individual, institution, or facility that has been alleged to be involved in acts or omissions of
333
child abuse or neglect, the investigation of the reported child abuse or neglect shall be
334
conducted by an agency other than the division.
335
(6) If a report of neglect is based upon or includes an allegation of educational neglect
336
the division shall immediately consult with school authorities to verify the child's status in
337
accordance with Sections
53A-11-101
through
53A-11-103
.
338
(7) When the division has completed its initial investigation under this part, it shall
339
give notice of that completion to the person who made the initial report.
340
(8) Division workers [or], other child protection team members, and peace officers
341
have authority to enter upon public or private premises, using appropriate legal processes, to
342
investigate reports of alleged child abuse or neglect; however, except as provided in Section
343
62A-4a-407
, a child may be taken into protective custody only by a peace officer, in
344
accordance with this chapter and Title 78, Chapter 3a, Juvenile Court Act of 1996.
345
(9) With regard to any interview of a child prior to removal of that child from the
346
child's home:
347
(a) except as provided in Subsection (9)(b) or (c), the division shall notify a parent of
348
the child prior to the interview;
349
(b) if a child's parent or stepparent, or a parent's paramour has been identified as the
350
alleged perpetrator, the division need not notify a parent of the child prior to an initial interview
351
with the child;
352
(c) if the perpetrator is unknown, or if the perpetrator's relationship to the child's family
353
is unknown, the division may conduct a minimal interview, not to exceed 15 minutes, with the
354
child prior to notification of the child's parent;
355
(d) in all cases described in Subsection (9)(b) or (c), a parent of the child shall be
356
notified as soon as practicable after the child has been interviewed, but in no case later than 24
357
hours after the interview has taken place;
358
(e) a child's parents shall be notified of the time and place of all subsequent interviews
359
with the child; and
360
(f) the child shall be allowed to have a support person of the child's choice present.
361
That support person:
362
(i) may include[, but is not limited to,] a school teacher or administrator, guidance
363
counselor, or child care provider; and
364
(ii) may not be a person who is alleged to be, or potentially may be, the perpetrator.
365
(10) In accordance with the procedures and requirements of Sections
62A-4a-202.1
366
through
62A-4a-202.3
, a [division worker or child protection team member] peace officer may
367
take a child into protective custody and [deliver the child to a law enforcement officer, or]
368
place the child in an emergency shelter facility approved by the juvenile court, at the earliest
369
opportunity subsequent to the child's removal from the child's original environment. Control
370
and jurisdiction over the child is determined by the provisions of Title 78, Chapter 3a, Juvenile
371
Court Act of 1996, and as otherwise provided by law.
372
(11) With regard to cases in which a law enforcement agency has or is conducting an
373
investigation of alleged abuse or neglect of a child:
374
(a) the division shall coordinate with the law enforcement agency to ensure that there is
375
an adequate safety plan to protect the child from further abuse or neglect; and
376
(b) the division is not required to duplicate an aspect of the investigation that, in the
377
division's determination, has been satisfactorily completed by the law enforcement agency.
378
Section 7.
Section
62A-4a-410
is amended to read:
379
62A-4a-410. Immunity from liability.
380
(1) Any person, official, or institution participating in good faith in making a report,
381
taking photographs or X-rays, assisting an [investigator from the division] investigation by a
382
peace officer or the division of possible child abuse, neglect, or dependency, serving as a
383
member of a child protection team, or taking a child into protective custody pursuant to this
384
part, is immune from any liability, civil or criminal, that otherwise might result by reason of
385
those actions.
386
(2) This section does not provide immunity with respect to acts or omissions of a
387
governmental employee except as provided in Title 63, Chapter 30, Utah Governmental
388
Immunity Act.
389
Section 8.
Section
78-3a-106
is amended to read:
390
78-3a-106. Search warrants and subpoenas -- Authority to issue.
391
(1) The court has authority to issue search warrants, subpoenas, or investigative
392
subpoenas in criminal cases, delinquency, and abuse, neglect, and dependency proceedings for
393
the same purposes, in the same manner and pursuant to the same procedures set forth in the
394
code of criminal procedure for the issuance of search warrants, subpoenas, or investigative
395
subpoenas in other trial courts in the state.
396
(2) (a) The court may issue a warrant authorizing a [child protective services worker
397
or] peace officer to search for a child and take the child into protective custody if it appears to
398
the court upon a verified petition, recorded sworn testimony or an affidavit sworn to by a peace
399
officer or any other person, and upon the examination of other witnesses, if required by the
400
judge, that there is probable cause to believe that:
401
(i) there is an immediate threat to the safety of a child; and
402
(ii) the applicant certifies to the court in writing or by recorded sworn testimony as to
403
the efforts, if any, that have been made to give notice to the minor's parent or guardian and the
404
reasons supporting the claim that notice and an opportunity to be heard should not be required.
405
(b) A warrant removing a child from [his] the child's home or school, or having the
406
effect of depriving a parent or guardian of the care, custody, and control of [their] the parent's
407
or guardian's minor child, may not be issued without notice to the minor's parents or guardian
408
and opportunity to be heard unless the requirements of Subsections (2)(a)(i) and (ii) have been
409
satisfied.
410
(c) Pursuant to Section
77-23-210
, a peace officer making the search may enter a house
411
or premises by force, if necessary, in order to remove the child.
412
(d) The person executing the warrant shall then take the child to the place of shelter
413
designated by the court.
414
(3) The parent or guardian to be notified must be the minor's primary caregiver, or the
415
person who has custody of the minor, when the order is sought.
416
Section 9.
Section
78-3a-301 (Effective 07/01/04)
is amended to read:
417
78-3a-301 (Effective 07/01/04). Court-ordered protective custody of a minor
418
following petition filing -- Grounds.
419
(1) (a) After a petition has been filed under Subsection
78-3a-305
(1), if the minor who
420
is the subject of the petition is not in the protective custody of the division, a court may order
421
that the minor be removed from the minor's home by a peace officer, or otherwise taken into
422
protective custody by a peace officer, if the court finds, by a preponderance of the evidence,
423
that any one or more of the following circumstances exist:
424
[(a)] (i) there is an imminent danger to the physical health or safety of the minor and
425
the minor's physical health or safety may not be protected without removing the minor from the
426
custody of the minor's parent or guardian[. If a minor has previously been adjudicated as
427
abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
428
has occurred involving the same alleged abuser or under similar circumstance as the previous
429
abuse, that fact constitutes prima facie evidence that the minor cannot safely remain in the
430
custody of the minor's parent];
431
[(b)] (ii) a parent or guardian engages in or threatens the minor with unreasonable
432
conduct that causes the minor to suffer emotional damage and there are no reasonable means
433
available by which the minor's emotional health may be protected without removing the minor
434
from the custody of the minor's parent or guardian;
435
[(c) (i)] (iii) the minor or another minor residing in the same household has been
436
physically or sexually abused, or is considered to be at substantial risk of being physically or
437
sexually abused, by a parent or guardian, a member of the parent's or guardian's household, or
438
other person known to the parent or guardian[.];
439
[(ii) For purposes of this Subsection (1)(c), another minor residing in the same
440
household may not be removed from the home unless that minor is considered to be at
441
substantial risk of being physically or sexually abused as described in Subsection (1)(c)(i) or
442
(iii).]
443
[(iii) If a parent or guardian has received actual notice that physical or sexual abuse by
444
a person known to the parent has occurred, and there is evidence that the parent or guardian
445
failed to protect the minor by allowing the minor to be in the physical presence of the alleged
446
abuser, that fact constitutes prima facie evidence that the minor is at substantial risk of being
447
physically or sexually abused;]
448
[(d)] (iv) the parent or guardian is unwilling to have physical custody of the minor;
449
[(e)] (v) the minor has been abandoned or left without any provision for the minor's
450
support;
451
[(f)] (vi) a parent or guardian who has been incarcerated or institutionalized has not
452
arranged or cannot arrange for safe and appropriate care for the minor;
453
[(g)] (vii) a relative or other adult custodian with whom the minor has been left by the
454
parent or guardian is unwilling or unable to provide care or support for the minor, the
455
whereabouts of the parent or guardian are unknown, and reasonable efforts to locate the parent
456
or guardian have been unsuccessful;
457
[(h)] (viii) the minor is in immediate need of medical care;
458
[(i) (i)] (ix) (A) a parent's or guardian's actions, omissions, or habitual action create an
459
environment that poses a threat to the minor's health or safety; or
460
[(ii)] (B) a parent's or guardian's action in leaving a minor unattended would
461
reasonably pose a threat to the minor's health or safety;
462
[(j) (i)] (x) (A) the minor or another minor residing in the same household has been
463
neglected; and
464
[(ii)] (B) for purposes of Subsection (1)[(j)(i)](a)(x)(A), another minor residing in the
465
same household may not be removed unless that minor is considered to be at substantial risk of
466
being neglected;
467
[(k)] (xi) an infant has been abandoned, as defined in Section
78-3a-313.5
;
468
[(l)] (xii) the parent or guardian, or an adult residing in the same household as the
469
parent or guardian, has been charged or arrested pursuant to Title 58, Chapter 37d, Clandestine
470
Drug Lab Act, and any clandestine laboratory operation, as defined in Section
58-37d-3
, was
471
located in the residence or on the property where the minor resided; or
472
[(m)] (xiii) the minor's welfare is otherwise endangered.
473
(b) (i) For purposes of Subsection (1)(a)(i), if a minor has previously been adjudicated
474
as abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
475
has occurred involving the same alleged abuser or under similar circumstance as the previous
476
abuse, that fact constitutes prima facie evidence that the minor cannot safely remain in the
477
custody of the minor's parent.
478
(ii) For purposes of Subsection (1)(a)(iii):
479
(A) another minor residing in the same household may not be removed from the home
480
unless that minor is considered to be at substantial risk of being physically or sexually abused
481
as described in Subsection (1)(a)(iii) or Subsection (1)(b)(ii)(B); and
482
(B) if a parent or guardian has received actual notice that physical or sexual abuse by a
483
person known to the parent has occurred, and there is evidence that the parent or guardian
484
failed to protect the minor by allowing the minor to be in the physical presence of the alleged
485
abuser, that fact constitutes prima facie evidence that the minor is at substantial risk of being
486
physically or sexually abused.
487
(2) A court may not remove a minor from the parent's or guardian's custody on the
488
basis of educational neglect, in the absence of one of the factors described in Subsection (1).
489
(3) A court may not remove a minor from the parent's or guardian's custody on the
490
basis of mental illness or poverty of the parent or guardian, in the absence of one of the factors
491
described in Subsection (1).
492
(4) A minor removed from the custody of the minor's parent or guardian under this
493
section may not be placed or kept in a secure detention facility pending further court
494
proceedings unless the minor is detainable based on guidelines promulgated by the Division of
495
Juvenile Justice Services.
496
(5) This section does not preclude removal of a minor from the minor's home without a
497
warrant or court order under Section
62A-4a-202.1
.
498
Section 10.
Section
78-3a-306
is amended to read:
499
78-3a-306. Shelter hearing.
500
(1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
501
after any one or all of the following occur:
502
(a) removal of [the] a child from [his] the child's home by [the Division of Child and
503
Family Services] a peace officer;
504
(b) placement of the child in the protective custody of the division [of Child and
505
Family Services];
506
(c) emergency kinship placement under Subsection
62A-4a-202.1
(4); or
507
(d) as an alternative to removal of the child, a parent has entered a domestic violence
508
shelter at the request of the division [of Child and Family Services].
509
(2) Upon the occurrence of any of the circumstances described in Subsections (1)(a)
510
through (1)(d), the division shall issue a notice that contains all of the following:
511
(a) the name and address of the person to whom the notice is directed;
512
(b) the date, time, and place of the shelter hearing;
513
(c) the name of the minor on whose behalf a petition is being brought;
514
(d) a concise statement regarding:
515
(i) the reasons for removal or [other] action of the division under Subsection (1); and
516
(ii) the allegations and code sections under which the proceeding has been instituted;
517
(e) a statement that the parent or guardian to whom notice is given, and the minor, are
518
entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
519
indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
520
provided; and
521
(f) a statement that the parent or guardian is liable for the cost of support of the minor
522
in the protective custody, temporary custody, and custody of the division, and the cost for legal
523
counsel appointed for the parent or guardian under Subsection (2)(e), according to [his] the
524
parent's or guardian's financial ability.
525
(3) That notice shall be personally served as soon as possible, but no later than one
526
business day after removal of a child from [his] the child's home, on:
527
(a) the appropriate guardian ad litem; and
528
(b) both parents and any guardian of the minor, unless they cannot be located.
529
(4) The following persons shall be present at the shelter hearing:
530
(a) the child, unless it would be detrimental for the child;
531
(b) the child's parents or guardian, unless they cannot be located, or fail to appear in
532
response to the notice;
533
(c) counsel for the parents, if one has been requested;
534
(d) the child's guardian ad litem;
535
(e) the caseworker from the division [of Child and Family Services] who has been
536
assigned to the case; and
537
(f) the attorney from the attorney general's office who is representing the division.
538
(5) (a) At the shelter hearing, the court shall provide an opportunity for the minor's
539
parent or guardian, if present, and any other person having relevant knowledge, to provide
540
relevant testimony. The court may also provide an opportunity for the minor to testify.
541
(b) (i) The court may consider all relevant evidence, in accordance with the Utah Rules
542
of Juvenile Procedure.
543
(ii) The court shall hear relevant evidence presented by the minor, [his] the parent or
544
guardian of the minor, the requesting party, or their counsel, but may in its discretion limit
545
testimony and evidence to only that which goes to the issues of removal and the child's need for
546
continued protection.
547
(6) If the child is in the protective custody of the division, the division shall report to
548
the court:
549
(a) the reasons why the minor was removed from the parent's or guardian's custody;
550
(b) any services provided to the child and [his] the child's family in an effort to prevent
551
removal;
552
(c) the need, if any, for continued shelter;
553
(d) the available services that could facilitate the return of the minor to the custody of
554
[his] the minor's parent or guardian; and
555
(e) whether the child has any relatives who may be able and willing to take temporary
556
custody.
557
(7) The court shall consider all relevant evidence provided by persons or entities
558
authorized to present relevant evidence pursuant to this section.
559
(8) If necessary to protect the child, preserve the rights of a party, or for other good
560
cause shown, the court may grant no more than one time-limited continuance, not to exceed
561
five judicial days.
562
(9) (a) If the child is in the protective custody of the division, the court shall order that
563
the minor be released from the protective custody of the division unless it finds, by a
564
preponderance of the evidence, that any one of the following exist:
565
[(a)] (i) there is a substantial danger to the physical health or safety of the minor and
566
the minor's physical health or safety may not be protected without removing [him] the minor
567
from [his parent's] the custody of the minor's parent or guardian. If a minor has previously
568
been adjudicated as abused, neglected, or dependent and a subsequent incident of abuse,
569
neglect, or dependency occurs, that fact constitutes prima facie evidence that the child cannot
570
safely remain in the custody of [his] the minor's parent or guardian;
571
[(b)] (ii) the minor is suffering emotional damage, as may be indicated by, but is not
572
limited to, extreme anxiety, depression, withdrawal, or negative aggressive behavior toward
573
self or others, and there are no reasonable means available by which the minor's emotional
574
health may be protected without removing the minor from the custody of [his] the minor's
575
parent or guardian;
576
[(c)] (iii) the minor or another minor residing in the same household has been
577
physically or sexually abused, or is considered to be at substantial risk of being physically or
578
sexually abused, by a parent, a member of the parent's household, or other person known to the
579
parent[. If a parent has received actual notice that physical or sexual abuse by a person known
580
to the parent has occurred, and there is evidence that the parent has allowed the child to be in
581
the physical presence of the alleged abuser, that fact constitutes prima facie evidence that the
582
child is at substantial risk of being physically or sexually abused];
583
[(d)] (iv) the parent is unwilling to have physical custody of the child;
584
[(e)] (v) the minor has been left without any provision for [his] the minor's support;
585
[(f)] (vi) a parent who has been incarcerated or institutionalized has not or cannot
586
arrange for safe and appropriate care for the minor;
587
[(g)] (vii) a relative or other adult custodian with whom the minor has been left by the
588
parent is unwilling or unable to provide care or support for the minor, the whereabouts of the
589
parent are unknown, and reasonable efforts to locate him have been unsuccessful;
590
[(h)] (viii) the minor is in immediate need of medical care;
591
[(i)] (ix) the physical environment or the fact that the child is left unattended poses a
592
threat to the child's health or safety;
593
[(j)] (x) the minor or another minor residing in the same household has been neglected;
594
[(k)] (xi) the parent, or an adult residing in the same household as the parent, has been
595
charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any
596
clandestine laboratory operation, as defined in Section
58-37d-3
, was located in the residence
597
or on the property where the child resided; or
598
[(l)] (xii) the child's welfare is otherwise endangered.
599
(b) For purposes of Subsection (9)(a)(iii), if a parent has received actual notice that
600
physical or sexual abuse by a person known to the parent has occurred, and there is evidence
601
that the parent has allowed the child to be in the physical presence of the alleged abuser, that
602
fact constitutes prima facie evidence that the child is at substantial risk of being physically or
603
sexually abused.
604
(10) (a) The court shall also make a determination on the record as to whether
605
reasonable efforts were made to prevent or eliminate the need for removal of the minor from
606
[his] the minor's home and whether there are available services that would prevent the need for
607
continued removal. If the court finds that the minor can be safely returned to the custody of
608
[his] the minor's parent or guardian through the provision of those services, it shall place the
609
minor with [his] the minor's parent or guardian and order that those services be provided by the
610
division.
611
(b) In making that determination, and in ordering and providing services, the child's
612
health, safety, and welfare shall be the paramount concern, in accordance with federal law.
613
(11) Where the division's first contact with the family occurred during an emergency
614
situation in which the child could not safely remain at home, the court shall make a finding that
615
any lack of preplacement preventive efforts was appropriate.
616
(12) In cases where actual sexual abuse or abandonment, or serious physical abuse or
617
neglect are involved, neither the division nor the court has any duty to make "reasonable
618
efforts" or to, in any other way, attempt to maintain a child in [his] the child's home, return a
619
child to [his] the child's home, provide reunification services, or attempt to rehabilitate the
620
offending parent or parents.
621
(13) The court may not order continued removal of a minor solely on the basis of
622
educational neglect as described in Subsection
78-3a-103
(1)(s)(ii).
623
(14) (a) Whenever a court orders continued removal of a minor under this section, it
624
shall state the facts on which that decision is based.
625
(b) If no continued removal is ordered and the minor is returned home, the court shall
626
state the facts on which that decision is based.
627
(15) If the court finds that continued removal and temporary custody are necessary for
628
the protection of a child because harm may result to the child if [he] the child were returned
629
home, [it] the court shall order continued removal regardless of any error in the initial removal
630
of the child, or the failure of a party to comply with notice provisions, or any other procedural
631
requirement of this chapter or Title 62A, Chapter 4a, Child and Family Services.
632
Section 11. Effective date.
633
This bill takes effect on July 1, 2004.
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