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Fourth Substitute S.B. 90
This document includes Senate Committee Amendments incorporated into the bill on
Mon, Feb 9, 2004 at 10:58 AM by rday. -->
Senator David L. Thomas proposes the following substitute bill:
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MEDICAL NEGLECT - EXCLUSION
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2004 GENERAL SESSION
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STATE OF UTAH
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Sponsor: David L. Thomas
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LONG TITLE
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General Description:
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This bill modifies the Child and Family Services provisions regarding severe child
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abuse or neglect.
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Highlighted Provisions:
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This bill:
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. establishes that severe child abuse or neglect does not include the medical decision
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of a competent parent who has no prior history of abuse or neglect; and
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. makes conforming amendments.
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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 May 3, 2004, except that the amendments in this bill to Section
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78-3a-103 (Effective 07/01/04) take effect on July 1, 2004.
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Utah Code Sections Affected:
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AMENDS:
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62A-4a-101, as last amended by Chapters 281 and 283, Laws of Utah 2002
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62A-4a-116.1, as last amended by Chapter 210, Laws of Utah 2003
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76-5-110, as last amended by Chapter 303, Laws of Utah 1997
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78-3a-103 (Superseded 07/01/04), as last amended by Chapter 283, Laws of Utah 2002
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78-3a-103 (Effective 07/01/04), as last amended by Chapter 171, Laws of Utah 2003
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78-3a-408, as last amended by Chapter 274, Laws of Utah 1998
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Uncodified Material Affected:
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ENACTS UNCODIFIED MATERIAL
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-4a-101
is amended to read:
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62A-4a-101. Definitions.
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As used in this chapter:
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(1) "Abuse" means:
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(a) actual or threatened nonaccidental physical or mental harm;
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(b) negligent treatment;
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(c) sexual exploitation; or
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(d) any sexual abuse.
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(2) "Adoption services" means placing children for adoption, subsidizing adoptions
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under Section
62A-4a-105
, supervising adoption placements until the adoption is finalized by
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the court, conducting adoption studies, preparing adoption reports upon request of the court,
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and providing postadoptive placement services, upon request of a family, for the purpose of
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stabilizing a possible disruptive placement.
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(3) "Board" means the Board of Child and Family Services established in accordance
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with Sections
62A-1-105
,
62A-1-107
, and
62A-4a-102
.
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(4) "Child" has the same meaning as "minor," as defined in this section.
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(5) "Consumer" means a person who receives services offered by the division in
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accordance with this chapter.
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(6) "Chronic physical abuse" means repeated or patterned physical abuse.
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(7) "Chronic neglect" means a repeated or patterned failure or refusal by a parent,
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guardian, or custodian to provide necessary care for a minor's safety, morals, or well-being.
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(8) "Chronic emotional abuse" means repeated or patterned emotional abuse.
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(9) "Custody," with regard to the division, means the custody of a child in the division
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as of the date of disposition.
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(10) "Day-care services" means care of a child for a portion of the day which is less
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than 24 hours, in his own home by a responsible person, or outside of his home in a day-care
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center, family group home, or family child care home.
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(11) "Dependent child" or "dependency" means a child, or the condition of a child, who
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is homeless or without proper care through no fault of the child's parent, guardian, or custodian.
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(12) "Director" means the director of the Division of Child and Family Services.
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(13) "Division" means the Division of Child and Family Services.
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(14) (a) "Domestic violence services" means temporary shelter, treatment, and related
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services to persons who are victims of abuse and their dependent children and treatment
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services for domestic violence perpetrators.
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(b) As used in this Subsection (14) "abuse" means the same as that term is defined in
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Section
30-6-1
, and "domestic violence perpetrator" means a person who is alleged to have
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committed, has been convicted of, or has pled guilty to an act of domestic violence as defined
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in Subsection
77-36-1
(2).
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(15) "Homemaking service" means the care of individuals in their domiciles, and help
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given to individual caretaker relatives to achieve improved household and family management
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through the services of a trained homemaker.
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(16) "Minor" means a person under 18 years of age. "Minor" may also include a
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person under 21 years of age for whom the division has been specifically ordered by the
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juvenile court to provide services.
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(17) "Natural parent" means a minor's biological or adoptive parent, and includes a
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minor's noncustodial parent.
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(18) (a) "Neglect" means:
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(i) abandonment of a child, except as provided in Title 62A, Chapter 4a, Part 8, Safe
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Relinquishment of a Newborn Child;
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(ii) subjecting a child to mistreatment or abuse;
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(iii) lack of proper parental care by reason of the fault or habits of the parent, guardian,
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or custodian;
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(iv) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
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subsistence, education, or medical care, including surgery or psychiatric services when
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required, or any other care necessary for his health, safety, morals, or well-being; or
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(v) a child at risk of being neglected or abused because another child in the same home
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is neglected or abused.
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(b) The aspect of neglect relating to education, described in Subsection (18)(a)(iv),
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means that, after receiving notice that a child has been frequently absent from school without
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good cause, or that the child has failed to cooperate with school authorities in a reasonable
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manner, a parent or guardian fails to make a good faith effort to ensure that the child receives
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an appropriate education.
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(c) A parent or guardian legitimately practicing religious beliefs and who, for that
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reason, does not provide specified medical treatment for a child, is not guilty of neglect.
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(d) The medical decision of a competent parent or guardian does not constitute medical
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neglect. A competent parent is defined herein as a parent who is a reasonable, prudent, and fit
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care giver toward their child.
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(e) All parents are presumed to be competent. This presumption may be rebutted if the
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state can show that a parent or parents are incompetent beyond a reasonable doubt.
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(f) Nothing in this Subsection (18) shall prohibit the state from taking medical care
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measures when a licensed medical professional finds that without a medically necessary
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procedure a minor child will suffer death or serious permanent disability within 120 hours of
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diagnosis.
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(g) Notwithstanding Subsection (18)(f), a parent shall retain the right to a second
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medical opinion.
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(h) A licensed medical professional shall not be liable for the consequences resulting
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from the failure of parents to follow their professional medical opinions.
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(19) "Protective custody," with regard to the division, means the shelter of a child by
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the division from the time the child is removed from the child's home until the shelter hearing,
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or the child's return home, whichever occurs earlier.
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(20) "Protective services" means expedited services that are provided:
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(a) in response to evidence of neglect, abuse, or dependency of a minor;
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(b) in an effort to substantiate evidence of neglect, abuse, or dependency;
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(c) to a cohabitant who is neglecting or abusing a child, in order to help the cohabitant
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develop recognition of the cohabitant's duty of care and of the causes of neglect or abuse, and
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to strengthen the cohabitant's ability to provide safe and acceptable care; and
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(d) in cases where the child's welfare is endangered:
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(i) to bring the situation to the attention of the appropriate juvenile court and law
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enforcement agency;
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(ii) to cause a protective order to be issued for the protection of the minor, when
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appropriate; and
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(iii) to protect the child from the circumstances that endanger the child's welfare
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including, when appropriate, removal from the child's home, placement in substitute care, and
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petitioning the court for termination of parental rights.
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(21) "Services to unwed parents" means social, educational, and medical services
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arranged for or provided to unwed parents to help them plan for themselves and the unborn
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child.
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(22) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
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minor.
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(23) "Shelter care" means the temporary care of minors in nonsecure facilities.
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(24) "State" means a state of the United States, the District of Columbia, the
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Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth of the Northern
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Mariana Islands, or a territory or possession administered by the United States.
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(25) "Severe emotional abuse" means emotional abuse that causes or threatens to cause
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serious harm to a minor.
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(26) "Severe physical abuse" means physical abuse that causes or threatens to cause
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serious harm to a minor.
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(27) "State plan" means the written description of the programs for children, youth, and
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family services administered by the division in accordance with federal law.
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(28) "Status offense" means a violation of the law that would not be a violation but for
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the age of the offender.
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(29) "Substantiated" or "substantiation" means a judicial finding based on a
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preponderance of the evidence that abuse or neglect occurred. Each allegation made or
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identified in a given case shall be considered separately in determining whether there should be
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a finding of substantiated.
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(30) "Substitute care" means:
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(a) the placement of a minor in a family home, group care facility, or other placement
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outside the minor's own home, either at the request of a parent or other responsible relative, or
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upon court order, when it is determined that continuation of care in the child's own home
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would be contrary to the child's welfare;
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(b) services provided for a child awaiting placement; and
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(c) the licensing and supervision of a substitute care facility.
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(31) "Supported" means a finding by the division based on the evidence available at the
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completion of an investigation that there is a reasonable basis to conclude that abuse, neglect,
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or dependency occurred. Each allegation made or identified during the course of the
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investigation shall be considered separately in determining whether there should be a finding of
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supported.
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(32) "Temporary custody," with regard to the division, means the custody of a child in
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the division from the date of the shelter hearing until disposition.
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(33) "Transportation services" means travel assistance given to an individual with
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escort service, if necessary, to and from community facilities and resources as part of a service
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plan.
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(34) "Unsubstantiated" means a judicial finding that there is insufficient evidence to
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conclude that abuse or neglect occurred.
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(35) "Unsupported" means a finding at the completion of an investigation that there is
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insufficient evidence to conclude that abuse, neglect, or dependency occurred. However, a
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finding of unsupported means also that the division worker did not conclude that the allegation
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was without merit.
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(36) "Without merit" means a finding at the completion of an investigation by the
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division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur, or
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that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.
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Section 2.
Section
62A-4a-116.1
is amended to read:
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62A-4a-116.1. Supported finding of severe types of abuse or neglect -- Notation in
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Licensing Information System -- Juvenile court petition or notice to alleged perpetrator --
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Rights of alleged perpetrator -- Juvenile court finding.
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(1) If the division makes a supported finding of one or more of the severe types of child
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abuse or neglect described in Subsection (2), the division shall:
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(a) serve notice of the finding on the alleged perpetrator and enter into the Licensing
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Information System created in Section
62A-4a-116.2
the name and other identifying
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information of the perpetrator with the supported finding, without identifying the person as a
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perpetrator or alleged perpetrator, and a notation to the effect that an investigation regarding
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the person is pending; and
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(b) if the division considers it advisable file a petition for substantiation within one
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year of the supported finding.
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(2) Except as otherwise provided in Subsection (3), the severe types of child abuse or
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neglect referred to in Subsection (1) are as follows:
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(a) if committed by a person 18 years of age or older:
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(i) severe or chronic physical abuse;
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(ii) sexual abuse;
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(iii) sexual exploitation;
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(iv) abandonment;
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(v) medical neglect resulting in death, disability, or serious illness;
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(vi) chronic or severe neglect; or
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(vii) chronic or severe emotional abuse; or
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(b) if committed by a person under the age of 18:
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(i) serious physical injury, as defined in Subsection
76-5-109
(1)(d), to another child
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which indicates a significant risk to other children; or
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(ii) sexual behavior with or upon another child which indicates a significant risk to
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other children.
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(3) Severe child abuse or neglect in Subsection (2) does not include:
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(a) the use of reasonable and necessary physical restraint or force by an educator in
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accordance with Subsection
53A-11-802
(2) or Section
76-2-401
; [or]
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(b) a person's conduct that:
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(i) is justified under Section
76-2-401
; or
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(ii) constitutes the use of reasonable and necessary physical restraint or force in
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self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or
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other dangerous object in the possession or under the control of a child or to protect the child or
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another person from physical injury[.];
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(c) the medical decision of a competent parent. A competent parent is defined herein
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as a parent who is a reasonable, prudent, and fit care giver toward their child.
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(4) For purposes of this section, all parents are presumed to be competent. This
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presumption may be rebutted if the state can show that a parent or parents are incompetent
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beyond a reasonable doubt.
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(5) Nothing in Subsections (3) and (4) shall prohibit the state from taking medical care
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measures when a licensed medical professional finds that without a medically necessary
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procedure a minor child will suffer death or serious permanent disability within 120 hours of
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diagnosis.
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(6) Notwithstanding Subsection (5), a parent shall retain the right to a second medical
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opinion.
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[(4)] (7) (a) For purposes of Subsection (2)(b), "significant risk" shall be determined in
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accordance with risk assessment tools and rules established by the division that focus on age,
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social factors, emotional factors, sexual factors, intellectual factors, family risk factors, and
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other related considerations.
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(b) The division shall train its child protection workers to apply the risk assessment
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tools and rules established under Subsection [(4)] (7)(a).
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[(5)] (8) The notice referred to in Subsection (1)(a) shall state that:
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(a) the division has conducted an investigation regarding alleged child abuse or
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neglect;
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(b) the division has made a supported finding of one of the severe types of child abuse
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or neglect described in Subsection (2);
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(c) facts gathered by the division support the supported finding;
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(d) as a result of the supported finding, the alleged perpetrator's name and other
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identifying information have been listed in the Licensing Information System in accordance
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with Subsection (1)(a);
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(e) the alleged perpetrator may be disqualified from adopting a child or being licensed
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by:
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(i) the department;
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(ii) a human services licensee;
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(iii) a child care provider or program; and
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(iv) a covered health care facility;
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(f) the alleged perpetrator has the rights described in Subsection [(6)] (9); and
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(g) failure to take either action described in Subsection [(6)] (9)(a) within one year
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after service of the notice will result in the action described in Subsection [(6)] (9)(b).
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[(6)] (9) (a) Upon receipt of the notice described in Subsection [(5)] (8), the alleged
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perpetrator shall have the right to:
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(i) file a written request asking the division to review the findings under Subsection
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(2);
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(ii) immediately petition the juvenile court under Section
78-3a-320
; or
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(iii) sign a written consent to the supported finding and entry of the alleged
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perpetrator's name and other information regarding the supported finding of abuse or neglect
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into the Licensing Information System.
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(b) If the alleged perpetrator fails to take action as described in Subsection [(6)] (9)(a)
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within one year after service of the notice described in Subsection [(5)] (8), the alleged
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perpetrator's name and the notation described in Subsection (1)(a) shall remain in the Licensing
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Information System. This information shall also remain in the Licensing Information System
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while the division awaits a response from the alleged perpetrator pursuant to Subsection [(6)]
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(9)(a) and during the pendency of any proceeding, including an appeal of a finding of
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unsubstantiated or without merit, under Section
78-3a-320
.
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(c) The alleged perpetrator shall have no right to petition the juvenile court under
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Subsection [(6)] (9)(b) if the court has previously held a hearing on the same alleged incident
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of abuse or neglect pursuant to the filing of a petition under Section
78-3a-305
by some other
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party.
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(d) Consent under Subsection [(6)] (9)(a)(iii) by a minor shall be given by the minor's
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parent or guardian.
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[(7)] (10) Upon the filing of a petition under Subsection (1)(b), the juvenile court shall
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make a finding of substantiated, unsubstantiated, or without merit as provided in Subsections
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78-3a-320
(1) and (2).
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[(8)] (11) Service of the notice under Subsections (1)(a) and [(5)] (8):
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(a) shall be personal service in accordance with Rule 4 of the Utah Rules of Civil
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Procedure; and
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(b) does not preclude civil or criminal action against the alleged perpetrator.
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Section 3.
Section
76-5-110
is amended to read:
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76-5-110. Abuse or neglect of disabled child.
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(1) As used in this section:
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(a) "Abuse" means:
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(i) inflicting physical injury, as that term is defined in Section
76-5-109
;
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(ii) having the care or custody of a disabled child, causing or permitting another to
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inflict physical injury, as that term is defined in Section
76-5-109
; or
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(iii) unreasonable confinement.
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(b) "Caretaker" means:
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(i) any parent, legal guardian, or other person having under his care and custody a
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disabled child; or
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(ii) any person, corporation, or public institution that has assumed by contract or court
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order the responsibility to provide food, shelter, clothing, medical, and other necessities to a
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disabled child.
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(c) "Disabled child" means any person under 18 years of age who is impaired because
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of mental illness, mental deficiency, physical illness or disability, or other cause, to the extent
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that he is unable to care for his own personal safety or to provide necessities such as food,
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shelter, clothing, and medical care.
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(d) "Neglect" means failure by a caretaker to provide care, nutrition, clothing, shelter,
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supervision, or medical care.
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(2) Any caretaker who abuses or neglects a disabled child is guilty of a third degree
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felony.
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(3) (a) A parent or legal guardian who provides a child with treatment by spiritual
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means alone through prayer, in lieu of medical treatment, in accordance with the tenets and
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practices of an established church or religious denomination of which the parent or legal
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guardian is a member or adherent shall not, for that reason alone, be considered to be in
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violation under this section.
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(b) The exception under Subsection (3)(a) shall not preclude a court from ordering
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medical services from a physician licensed to engage in the practice of medicine to be provided
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to the child where there is substantial risk of harm to the child's health or welfare.
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(4) This section does not apply to a parent or legal guardian's selection of a care or
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treatment option which a reasonable parent would believe to be in the best interest of the child.
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Section 4.
Section
78-3a-103 (Superseded 07/01/04)
is amended to read:
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78-3a-103 (Superseded 07/01/04). Definitions.
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(1) As used in this chapter:
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(a) "Abused child" includes a minor less than 18 years of age who:
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(i) has suffered or been threatened with nonaccidental physical or mental harm,
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negligent treatment, or sexual exploitation; or
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(ii) has been the victim of any sexual abuse.
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(b) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
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alleged in the petition have been proved.
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(c) "Adult" means a person 18 years of age or over, except that persons 18 years or
315
over under the continuing jurisdiction of the juvenile court pursuant to Section
78-3a-121
shall
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be referred to as minors.
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(d) "Board" means the Board of Juvenile Court Judges.
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(e) "Child placement agency" means:
319
(i) a private agency licensed to receive minors for placement or adoption under this
320
code; or
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(ii) a private agency receiving minors for placement or adoption in another state, which
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agency is licensed or approved where such license or approval is required by law.
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(f) "Commit" means to transfer legal custody.
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(g) "Court" means the juvenile court.
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(h) "Dependent child" includes a minor who is homeless or without proper care
326
through no fault of his parent, guardian, or custodian.
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(i) "Deprivation of custody" means transfer of legal custody by the court from a parent
328
or the parents or a previous legal custodian to another person, agency, or institution.
329
(j) "Detention" means home detention and secure detention as defined in Section
330
62A-7-101
for the temporary care of minors who require secure custody in physically
331
restricting facilities:
332
(i) pending court disposition or transfer to another jurisdiction; or
333
(ii) while under the continuing jurisdiction of the court.
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(k) "Division" means the Division of Child and Family Services.
335
(l) "Formal referral" means a written report from a peace officer or other person
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informing the court that a minor is or appears to be within the court's jurisdiction and that a
337
petition may be filed.
338
(m) "Group rehabilitation therapy" means psychological and social counseling of one
339
or more persons in the group, depending upon the recommendation of the therapist.
340
(n) "Guardianship of the person" includes the authority to consent to marriage, to
341
enlistment in the armed forces, to major medical, surgical, or psychiatric treatment, and to legal
342
custody, if legal custody is not vested in another person, agency, or institution.
343
(o) "Habitual truant" is a school-age minor who has received more than two truancy
344
citations within one school year from the school in which the minor is or should be enrolled
345
and eight absences without a legitimate or valid excuse or who, in defiance of efforts on the
346
part of school authorities as required under Section
53A-11-103
, refuses to regularly attend
347
school or any scheduled period of the school day.
348
(p) "Legal custody" means a relationship embodying the following rights and duties:
349
(i) the right to physical custody of the minor;
350
(ii) the right and duty to protect, train, and discipline the minor;
351
(iii) the duty to provide the minor with food, clothing, shelter, education, and ordinary
352
medical care;
353
(iv) the right to determine where and with whom the minor shall live; and
354
(v) the right, in an emergency, to authorize surgery or other extraordinary care.
355
(q) "Minor" means a person under the age of 18 years. It includes the term "child" as
356
used in other parts of this chapter.
357
(r) "Natural parent" means a minor's biological or adoptive parent, and includes the
358
minor's noncustodial parent.
359
(s) (i) "Neglected child" means a minor:
360
(A) whose parent, guardian, or custodian has abandoned the minor, except as provided
361
in Title 62A, Chapter 4a, Part 8, Safe Relinquishment of a Newborn Child;
362
(B) whose parent, guardian, or custodian has subjected the minor to mistreatment or
363
abuse;
364
(C) who lacks proper parental care by reason of the fault or habits of the parent,
365
guardian, or custodian;
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(D) whose parent, guardian, or custodian fails or refuses to provide proper or necessary
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subsistence, education, or medical care, including surgery or psychiatric services when
368
required, or any other care necessary for health, safety, morals, or well-being; or
369
(E) who is at risk of being a neglected or abused child as defined in this chapter
370
because another minor in the same home is a neglected or abused child as defined in this
371
chapter.
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(ii) The aspect of neglect related to education, described in Subsection (1)(s)(i)(D),
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means that, after receiving notice that a minor has been frequently absent from school without
374
good cause, or that the minor has failed to cooperate with school authorities in a reasonable
375
manner, a parent or guardian fails to make a good faith effort to ensure that the minor receives
376
an appropriate education.
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(iii) A parent or guardian legitimately practicing religious beliefs and who, for that
378
reason, does not provide specified medical treatment for a minor, is not guilty of neglect.
379
(iv) The medical decision of a competent parent or guardian does not constitute
380
medical neglect. A competent parent is defined herein as a parent who is a reasonable, prudent,
381
and fit care giver toward their child.
382
(v) All parents are presumed to be competent. This presumption may be rebutted if the
383
state can show that a parent or parents are incompetent beyond a reasonable doubt.
384
(vi) Nothing in Subsections (1)(s)(iv) and (v) shall prohibit the state from taking
385
medical care measures when a licensed medical professional finds that without a medically
386
necessary procedure a minor child will suffer death or serious permanent disability within 120
387
hours of diagnosis.
388
(vii) Notwithstanding Subsection (1)(s)(vi), a parent shall retain the right to a second
389
medical opinion.
390
(t) "Nonjudicial adjustment" means closure of the case by the assigned probation
391
officer without judicial determination upon the consent in writing of the minor, the parent,
392
legal guardian or custodian, and the assigned probation officer.
393
(u) "Probation" means a legal status created by court order following an adjudication
394
on the ground of a violation of law or under Section
78-3a-104
, whereby the minor is permitted
395
to remain in his home under prescribed conditions and under supervision by the probation
396
department or other agency designated by the court, subject to return to the court for violation
397
of any of the conditions prescribed.
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(v) "Protective supervision" means a legal status created by court order following an
399
adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
400
remain in his home, and supervision and assistance to correct the abuse, neglect, or dependency
401
is provided by the probation department or other agency designated by the court.
402
(w) "Residual parental rights and duties" means those rights and duties remaining with
403
the parent after legal custody or guardianship, or both, have been vested in another person or
404
agency, including the responsibility for support, the right to consent to adoption, the right to
405
determine the child's religious affiliation, and the right to reasonable parent-time unless
406
restricted by the court. If no guardian has been appointed, "residual parental rights and duties"
407
also include the right to consent to marriage, to enlistment, and to major medical, surgical, or
408
psychiatric treatment.
409
(x) "Secure facility" means any facility operated by or under contract with the Division
410
of Youth Corrections, that provides 24-hour supervision and confinement for youth offenders
411
committed to the division for custody and rehabilitation.
412
(y) "Shelter" means the temporary care of minors in physically unrestricted facilities
413
pending court disposition or transfer to another jurisdiction.
414
(z) "State supervision" means a disposition which provides a more intensive level of
415
intervention than standard probation but is less intensive or restrictive than a community
416
placement with the Division of Youth Corrections.
417
(aa) "Substantiated" has the same meaning as defined in Section
62A-4a-101
.
418
(bb) "Supported" has the same meaning as defined in Section
62A-4a-101
.
419
(cc) "Termination of parental rights" means the permanent elimination of all parental
420
rights and duties, including residual parental rights and duties, by court order.
421
(dd) "Therapist" means a person employed by a state division or agency for the purpose
422
of conducting psychological treatment and counseling of a minor in its custody, or any other
423
person licensed or approved by the state for the purpose of conducting psychological treatment
424
and counseling.
425
(ee) "Unsubstantiated" has the same meaning as defined in Section
62A-4a-101
.
426
(ff) "Without merit" has the same meaning as defined in Section
62A-4a-101
.
427
(2) As used in Part 3, Abuse, Neglect, and Dependency Proceedings, with regard to the
428
Division of Child and Family Services:
Text Box
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429
(a) "Custody" means the custody of a minor in the Division of Child and Family
430
Services as of the date of disposition.
431
(b) "Protective custody" means the shelter of a minor by the Division of Child and
432
Family Services from the time the minor is removed from home until the shelter hearing, or the
433
minor's return home, whichever occurs earlier.
434
(c) "Temporary custody" means the custody of a minor in the Division of Child and
435
Family Services from the date of the shelter hearing until disposition.
436
Section 5.
Section
78-3a-103 (Effective 07/01/04)
is amended to read:
437
78-3a-103 (Effective 07/01/04). Definitions.
438
(1) As used in this chapter:
439
(a) "Abused child" includes a minor less than 18 years of age who:
440
(i) has suffered or been threatened with nonaccidental physical or mental harm,
441
negligent treatment, or sexual exploitation; or
442
(ii) has been the victim of any sexual abuse.
443
(b) "Adjudication" means a finding by the court, incorporated in a decree, that the facts
444
alleged in the petition have been proved.
445
(c) "Adult" means a person 18 years of age or over, except that persons 18 years or
446
over under the continuing jurisdiction of the juvenile court pursuant to Section
78-3a-121
shall
447
be referred to as minors.
448
(d) "Board" means the Board of Juvenile Court Judges.
449
(e) "Child placement agency" means:
450
(i) a private agency licensed to receive minors for placement or adoption under this
451
code; or
452
(ii) a private agency receiving minors for placement or adoption in another state, which
453
agency is licensed or approved where such license or approval is required by law.
454
(f) "Commit" means to transfer legal custody.
455
(g) "Court" means the juvenile court.
456
(h) "Dependent child" includes a minor who is homeless or without proper care
457
through no fault of his parent, guardian, or custodian.
458
(i) "Deprivation of custody" means transfer of legal custody by the court from a parent
459
or the parents or a previous legal custodian to another person, agency, or institution.
Text Box
- 16 -
460
(j) "Detention" means home detention and secure detention as defined in Section
461
62A-7-101
for the temporary care of minors who require secure custody in physically
462
restricting facilities:
463
(i) pending court disposition or transfer to another jurisdiction; or
464
(ii) while under the continuing jurisdiction of the court.
465
(k) "Division" means the Division of Child and Family Services.
466
(l) "Formal referral" means a written report from a peace officer or other person
467
informing the court that a minor is or appears to be within the court's jurisdiction and that a
468
petition may be filed.
469
(m) "Group rehabilitation therapy" means psychological and social counseling of one
470
or more persons in the group, depending upon the recommendation of the therapist.
471
(n) "Guardianship of the person" includes the authority to consent to marriage, to
472
enlistment in the armed forces, to major medical, surgical, or psychiatric treatment, and to legal
473
custody, if legal custody is not vested in another person, agency, or institution.
474
(o) "Habitual truant" is a school-age minor who has received more than two truancy
475
citations within one school year from the school in which the minor is or should be enrolled
476
and eight absences without a legitimate or valid excuse or who, in defiance of efforts on the
477
part of school authorities as required under Section
53A-11-103
, refuses to regularly attend
478
school or any scheduled period of the school day.
479
(p) "Legal custody" means a relationship embodying the following rights and duties:
480
(i) the right to physical custody of the minor;
481
(ii) the right and duty to protect, train, and discipline the minor;
482
(iii) the duty to provide the minor with food, clothing, shelter, education, and ordinary
483
medical care;
484
(iv) the right to determine where and with whom the minor shall live; and
485
(v) the right, in an emergency, to authorize surgery or other extraordinary care.
486
(q) "Minor" means a person under the age of 18 years. It includes the term "child" as
487
used in other parts of this chapter.
488
(r) "Natural parent" means a minor's biological or adoptive parent, and includes the
489
minor's noncustodial parent.
490
(s) (i) "Neglected child" means a minor:
Text Box
- 17 -
491
(A) whose parent, guardian, or custodian has abandoned the minor, except as provided
492
in Title 62A, Chapter 4a, Part 8, Safe Relinquishment of a Newborn Child;
493
(B) whose parent, guardian, or custodian has subjected the minor to mistreatment or
494
abuse;
495
(C) who lacks proper parental care by reason of the fault or habits of the parent,
496
guardian, or custodian;
497
(D) whose parent, guardian, or custodian fails or refuses to provide proper or necessary
498
subsistence, education, or medical care, including surgery or psychiatric services when
499
required, or any other care necessary for health, safety, morals, or well-being; or
500
(E) who is at risk of being a neglected or abused child as defined in this chapter
501
because another minor in the same home is a neglected or abused child as defined in this
502
chapter.
503
(ii) The aspect of neglect related to education, described in Subsection (1)(s)(i)(D),
504
means that, after receiving notice that a minor has been frequently absent from school without
505
good cause, or that the minor has failed to cooperate with school authorities in a reasonable
506
manner, a parent or guardian fails to make a good faith effort to ensure that the minor receives
507
an appropriate education.
508
(iii) A parent or guardian legitimately practicing religious beliefs and who, for that
509
reason, does not provide specified medical treatment for a minor, is not guilty of neglect.
510
(iv) The medical decision of a competent parent or guardian does not constitute
511
medical neglect. A competent parent is defined herein as a parent who is a reasonable, prudent,
512
and fit care giver toward their child.
513
(v) All parents are presumed to be competent. This presumption may be rebutted if the
514
state can show that a parent or parents are incompetent beyond a reasonable doubt.
515
(vi) Nothing in Subsections (1)(s)(iv) and (v) shall prohibit the state from taking
516
medical care measures when a licensed medical professional finds that without a medically
517
necessary procedure a minor child will suffer death or serious permanent disability within 120
518
hours of diagnosis.
519
(vii) Notwithstanding Subsection (1)(s)(vi), a parent shall retain the right to a second
520
medical opinion.
521
(t) "Nonjudicial adjustment" means closure of the case by the assigned probation
Text Box
- 18 -
522
officer without judicial determination upon the consent in writing of the minor, the parent,
523
legal guardian or custodian, and the assigned probation officer.
524
(u) "Probation" means a legal status created by court order following an adjudication
525
on the ground of a violation of law or under Section
78-3a-104
, whereby the minor is permitted
526
to remain in his home under prescribed conditions and under supervision by the probation
527
department or other agency designated by the court, subject to return to the court for violation
528
of any of the conditions prescribed.
529
(v) "Protective supervision" means a legal status created by court order following an
530
adjudication on the ground of abuse, neglect, or dependency, whereby the minor is permitted to
531
remain in his home, and supervision and assistance to correct the abuse, neglect, or dependency
532
is provided by the probation department or other agency designated by the court.
533
(w) "Residual parental rights and duties" means those rights and duties remaining with
534
the parent after legal custody or guardianship, or both, have been vested in another person or
535
agency, including the responsibility for support, the right to consent to adoption, the right to
536
determine the child's religious affiliation, and the right to reasonable parent-time unless
537
restricted by the court. If no guardian has been appointed, "residual parental rights and duties"
538
also include the right to consent to marriage, to enlistment, and to major medical, surgical, or
539
psychiatric treatment.
540
(x) "Secure facility" means any facility operated by or under contract with the Division
541
of Juvenile Justice Services, that provides 24-hour supervision and confinement for youth
542
offenders committed to the division for custody and rehabilitation.
543
(y) "Shelter" means the temporary care of minors in physically unrestricted facilities
544
pending court disposition or transfer to another jurisdiction.
545
(z) "State supervision" means a disposition which provides a more intensive level of
546
intervention than standard probation but is less intensive or restrictive than a community
547
placement with the Division of Juvenile Justice Services.
548
(aa) "Substantiated" has the same meaning as defined in Section
62A-4a-101
.
549
(bb) "Supported" has the same meaning as defined in Section
62A-4a-101
.
550
(cc) "Termination of parental rights" means the permanent elimination of all parental
551
rights and duties, including residual parental rights and duties, by court order.
552
(dd) "Therapist" means a person employed by a state division or agency for the purpose
Text Box
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553
of conducting psychological treatment and counseling of a minor in its custody, or any other
554
person licensed or approved by the state for the purpose of conducting psychological treatment
555
and counseling.
556
(ee) "Unsubstantiated" has the same meaning as defined in Section
62A-4a-101
.
557
(ff) "Without merit" has the same meaning as defined in Section
62A-4a-101
.
558
(2) As used in Part 3, Abuse, Neglect, and Dependency Proceedings, with regard to the
559
Division of Child and Family Services:
560
(a) "Custody" means the custody of a minor in the Division of Child and Family
561
Services as of the date of disposition.
562
(b) "Protective custody" means the shelter of a minor by the Division of Child and
563
Family Services from the time the minor is removed from home until the shelter hearing, or the
564
minor's return home, whichever occurs earlier.
565
(c) "Temporary custody" means the custody of a minor in the Division of Child and
566
Family Services from the date of the shelter hearing until disposition.
567
Section 6.
Section
78-3a-408
is amended to read:
568
78-3a-408. Evidence of grounds for termination.
569
(1) In determining whether a parent or parents have abandoned a child, it is prima facie
570
evidence of abandonment that the parent or parents:
571
(a) although having legal custody of the child, have surrendered physical custody of the
572
child, and for a period of six months following the surrender have not manifested to the child
573
or to the person having the physical custody of the child a firm intention to resume physical
574
custody or to make arrangements for the care of the child;
575
(b) have failed to communicate with the child by mail, telephone, or otherwise for six
576
months;
577
(c) failed to have shown the normal interest of a natural parent, without just cause; or
578
(d) have abandoned an infant, as described in Section
78-3a-313.5
.
579
(2) In determining whether a parent or parents are unfit or have neglected a child the
580
court shall consider, but is not limited to, the following circumstances, conduct, or conditions:
581
(a) emotional illness, mental illness, or mental deficiency of the parent that renders him
582
unable to care for the immediate and continuing physical or emotional needs of the child for
583
extended periods of time;
Text Box
- 20 -
584
(b) conduct toward a child of a physically, emotionally, or sexually cruel or abusive
585
nature;
586
(c) habitual or excessive use of intoxicating liquors, controlled substances, or
587
dangerous drugs that render the parent unable to care for the child;
588
(d) repeated or continuous failure to provide the child with adequate food, clothing,
589
shelter, education, or other care necessary for his physical, mental, and emotional health and
590
development by a competent parent or parents who are capable of providing that care[.];
591
[However, a parent who, legitimately practicing his religious beliefs, does not provide specified
592
medical treatment for a child is not for that reason alone a negligent or unfit parent;]
593
(e) with regard to a child who is in the custody of the division, if the parent is
594
incarcerated as a result of conviction of a felony, and the sentence is of such length that the
595
child will be deprived of a normal home for more than one year; or
596
(f) a history of violent behavior.
597
(3) A parent who, legitimately practicing his religious beliefs, does not provide
598
specified medical treatment for a child is not for that reason alone a negligent or unfit parent.
599
(4) The medical decision of a competent parent or guardian does not constitute neglect.
600
(5) All parents are presumed to be competent. This presumption may be rebutted if the
601
state can show that a parent or parents are incompetent beyond a reasonable doubt. A
602
competent parent is defined herein as a parent who is a reasonable, prudent, and fit care giver
603
toward their child.
604
[(3)] (6) If a child has been placed in the custody of the division and the parent or
605
parents fail to comply substantially with the terms and conditions of a plan within six months
606
after the date on which the child was placed or the plan was commenced, whichever occurs
607
later, that failure to comply is evidence of failure of parental adjustment.
608
[(4)] (7) The following circumstances constitute prima facie evidence of unfitness:
609
(a) sexual abuse, injury, or death of a sibling of the child, or of any child, due to known
610
or substantiated abuse or neglect by the parent or parents;
611
(b) conviction of a crime, if the facts surrounding the crime are of such a nature as to
612
indicate the unfitness of the parent to provide adequate care to the extent necessary for the
613
child's physical, mental, or emotional health and development;
614
(c) a single incident of life-threatening or gravely disabling injury to or disfigurement
Text Box
- 21 -
Senate Committee Amendments 2-9-2004 rd/sms
615
of the child; or
616
(d) the parent has committed, aided, abetted, attempted, conspired, or solicited to
617
commit murder or manslaughter of a child or child abuse homicide.
618
Section 7. Legislative intent.
619
The legislature recognizes that there is a fundamental liberty interest of parents in the
620
care, custody, and management of their child as protected by the 14th Amendment and does not
621
evaporate simply because they have not been model parents or have lost temporary custody of
622
their children to the state. S [
A termination of parental rights proceeding interferes with that
623
fundamental liberty interest. When the state moves to destroy weakened family bonds, it must
624
provide the parents with fundamentally fair procedures.
] s
625
Section 8. Effective date.
626
This bill takes effect on May 3, 2004, except that the amendments in this bill to Section
627
78-3a-103 (Effective 07/01/04) take effect on July 1, 2004.
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