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H.B. 42
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MEDICAL RECOMMENDATIONS FOR
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CHILDREN
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2005 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Michael T. Morley
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LONG TITLE
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General Description:
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This bill prohibits school personnel from making certain medical recommendations for
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a minor, including the use of psychotropic drugs, and prohibits consideration of a
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petition for removal of a minor, and removal of a minor from parental custody based on
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a parent's refusal to consent to the administration of psychotropic drugs.
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Highlighted Provisions:
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This bill:
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. prohibits school personnel from making certain medical recommendations for a
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minor, including the use of psychotropic drugs;
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. prohibits the removal of a minor from parental custody based on a parent's refusal to
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consent to the administration of psychotropic drugs; and
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. prohibits the consideration of a petition for removal of a minor from parental
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custody based on a parent's refusal to consent to the administration of psychotropic
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drugs.
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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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None
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Utah Code Sections Affected:
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AMENDS:
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78-3a-301, as last amended by Chapter 356, Laws of Utah 2004
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78-3a-305, as last amended by Chapters 68 and 326, Laws of Utah 2003
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ENACTS:
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53A-11-603, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
53A-11-603
is enacted to read:
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53A-11-603. Definitions -- Prohibited recommendations -- Psychotropic drugs --
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Exceptions -- Penalties.
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(1) As used in this section:
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(a) "Federal education law" means:
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(i) 20 U.S.C. Sec. 1401 et seq.;
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(ii) 20 U.S.C. Sec. 7101 et seq.;
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(iii) 29 U.S.C. Sec. 794; and
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(iv) 42 U.S.C. Sec. 12101 et seq.
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(b) "School" means a public school.
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(2) Except as provided in Subsection (4) or (5), school personnel may not:
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(a) recommend to a parent or guardian that a child take or continue to take a
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psychotropic drug as a condition for attending school;
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(b) require that a child take or continue to take a psychotropic drug as a condition for
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attending school;
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(c) recommend that a parent or guardian seek or use any of the following:
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(i) the administration of any psychotropic medication to a child;
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(ii) a psychiatric or psychological treatment for a child; or
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(iii) a psychiatric evaluation of a child;
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(d) conduct a psychiatric or behavioral health evaluation of a child without the consent
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of the child's parent or guardian;
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(e) recommend a specific licensed physician, psychologist, or any other health
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specialist to a parent or guardian for a child; or
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(f) make a child abuse or neglect report to authorities, including the Division of Child
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and Family Services, solely on the basis that a parent or guardian refuses to consent to:
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(i) the administration of a psychotropic drug to a child;
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(ii) a psychiatric, psychological, or behavioral treatment for a child; or
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(iii) a psychiatric or behavioral health evaluation of a child.
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(3) Nothing in this section may be construed to restrict school personnel from:
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(a) communicating information between school personnel regarding a child;
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(b) informing a child's parent or guardian of a perceived behavioral problem of the
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child, provided that:
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(i) an assertion or recommendation is not made in violation of Subsection (2); and
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(ii) an attempt is not made to denigrate, criticize, or punish a parent, guardian, or child
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for a decision made by the parent or guardian for the child to take, not take, or discontinue to
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take a psychotropic drug; or
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(c) exercising their authority relating to the placement within the school or readmission
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of a child who may be or has been suspended or expelled for a violation of Section
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53A-11-904
.
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(4) Notwithstanding Subsections (2)(c) and (d), a mental health professional acting in
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accordance with Title 58, Chapter 60, Mental Health Professional Practice Act, or licensed
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through the State Board of Education, working within the school system may, for the sole
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purpose of complying with federal education law:
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(a) recommend, but not require, a psychiatric or behavioral health evaluation of a child;
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(b) recommend, but not require, psychiatric, psychological, or behavioral treatment for
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a child; and
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(c) conduct a psychiatric or behavioral health evaluation of a child with the consent of
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the child's parent or guardian.
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(5) Notwithstanding Subsection (2)(e), a school district may make available to an
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interested parent or guardian a list of community resources, which may include mental health
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services, provided that the list conspicuously states the following: "This list is provided as a
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resource to you. The school neither recommends nor requires that you use this list or any of the
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services provided in it. It is for you to decide what services, if any, to access and from whom
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you wish to obtain them."
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(6) A local school board shall adopt a policy that indicates that a violation of this
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section is cause for disciplinary action under Section
53A-8-104
.
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Section 2.
Section
78-3a-301
is amended to read:
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78-3a-301. Court-ordered protective custody of a minor following petition filing
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-- Grounds.
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(1) After a petition has been filed under Subsection
78-3a-305
(1), if the minor who is
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the subject of the petition is not in the protective custody of the division, a court may order that
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the minor be removed from the minor's home or otherwise taken into protective custody if the
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court finds, by a preponderance of the evidence, that any one or more of the following
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circumstances exist:
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(a) there is an imminent danger to the physical health or safety of the minor and the
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minor's physical health or safety may not be protected without removing the minor from the
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custody of the minor's parent or guardian;
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(b) a parent or guardian engages in or threatens the minor with unreasonable conduct
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that causes the minor to suffer emotional damage and there are no reasonable means available
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by which the minor's emotional health may be protected without removing the minor from the
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custody of the minor's parent or guardian;
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(c) the minor or another minor residing in the same household has been physically or
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sexually abused, or is considered to be at substantial risk of being physically or sexually
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abused, by a parent or guardian, a member of the parent's or guardian's household, or other
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person known to the parent or guardian;
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(d) the parent or guardian is unwilling to have physical custody of the minor;
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(e) the minor has been abandoned or left without any provision for the minor's support;
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(f) a parent or guardian who has been incarcerated or institutionalized has not arranged
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or cannot arrange for safe and appropriate care for the minor;
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(g) a relative or other adult custodian with whom the minor has been left by the parent
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or guardian is unwilling or unable to provide care or support for the minor, the whereabouts of
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the parent or guardian are unknown, and reasonable efforts to locate the parent or guardian
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have been unsuccessful;
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(h) the minor is in immediate need of medical care;
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(i) (i) a parent's or guardian's actions, omissions, or habitual action create an
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environment that poses a threat to the minor's health or safety; or
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(ii) a parent's or guardian's action in leaving a minor unattended would reasonably pose
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a threat to the minor's health or safety;
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(j) the minor or another minor residing in the same household has been neglected;
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(k) an infant has been abandoned, as defined in Section
78-3a-313.5
;
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(l) the parent or guardian, or an adult residing in the same household as the parent or
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guardian, has been charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab
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Act, and any clandestine laboratory operation, as defined in Section
58-37d-3
, was located in
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the residence or on the property where the minor resided; or
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(m) the minor's welfare is otherwise endangered.
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(2) (a) For purposes of Subsection (1)(a), if a minor has previously been adjudicated as
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abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency
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has occurred involving the same substantiated abuser or under similar circumstance as the
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previous abuse, that fact constitutes prima facie evidence that the minor cannot safely remain in
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the custody of the minor's parent.
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(b) For purposes of Subsection (1)(c):
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(i) another minor residing in the same household may not be removed from the home
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unless that minor is considered to be at substantial risk of being physically or sexually abused
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as described in Subsection (1)(c) or Subsection (2)(b)(ii); and
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(ii) if a parent or guardian has received actual notice that physical or sexual abuse by a
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person known to the parent has occurred, and there is evidence that the parent or guardian
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failed to protect the minor, after having received the notice, by allowing the minor to be in the
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physical presence of the alleged abuser, that fact constitutes prima facie evidence that the
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minor is at substantial risk of being physically or sexually abused.
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(3) In the absence of one of the factors described in Subsection (1), a court may not
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remove a minor from the parent's or guardian's custody on the basis of:
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(a) educational neglect;
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(b) mental illness or poverty of the parent or guardian; or
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(c) disability of the parent or guardian, as defined in Subsection
57-21-3
(9).
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(4) A court or the Division of Child and Family Services may not remove a minor from
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the custody of his parent on the basis of the refusal of the parent solely to consent to:
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(a) the administration of a psychotropic drug to a child;
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(b) a psychiatric, psychological, or behavioral treatment for a child; or
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(c) a psychiatric or behavioral health evaluation of a child.
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[(4)] (5) A minor removed from the custody of the minor's parent or guardian under
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this section may not be placed or kept in a secure detention facility pending further court
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proceedings unless the minor is detainable based on guidelines promulgated by the Division of
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Juvenile Justice Services.
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[(5)] (6) This section does not preclude removal of a minor from the minor's home
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without a warrant or court order under Section
62A-4a-202.1
.
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Section 3.
Section
78-3a-305
is amended to read:
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78-3a-305. Petition filed -- Protective orders.
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(1) Any interested person may file a petition to commence proceedings in the juvenile
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court alleging that a minor is abused, neglected, or dependent. The person shall first make a
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referral with the division.
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(2) (a) If the child who is the subject of a petition was removed from his home by the
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Division of Child and Family Services that petition shall be filed on or before the date of the
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initial shelter hearing described in Section
78-3a-306
.
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(b) If a petition is requested by the division, the attorney general shall file the petition
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within 72 hours of the completion of the investigation and request, excluding weekends and
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holidays, if:
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(i) the child who is the subject of the requested petition has not been removed from his
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home by the division; and
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(ii) without an expedited hearing and services ordered under the protective supervision
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of the court, the child will likely be taken into protective custody.
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(3) The petition shall be verified, and contain all of the following:
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(a) the name, age, and address, if any, of the minor upon whose behalf the petition is
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brought;
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(b) the names and addresses, if known to the petitioner, of both parents and any
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guardian of the minor;
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(c) a concise statement of facts, separately stated, to support the conclusion that the
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minor upon whose behalf the petition is being brought is abused, neglected, or dependent; and
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(d) a statement regarding whether the minor is in protective custody, and if so, the date
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and precise time the minor was taken into protective custody.
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(4) The refusal of a parent to consent to the following may not be the sole basis for a
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petition filed pursuant to this section:
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(a) the administration of a psychotropic drug to a child;
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(b) a psychiatric, psychological, or behavioral treatment for a child; or
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(c) a psychiatric or behavioral health evaluation of a child.
Legislative Review Note
as of 12-2-04 2:42 PM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.