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H.B. 338
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CHILD AND FAMILY WELFARE REVISIONS
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2005 GENERAL SESSION
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STATE OF UTAH
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Sponsor: LaVar Christensen
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LONG TITLE
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General Description:
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This bill amends provisions of the Utah Human Services Code and the Judicial Code
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relating to child welfare and the rights of parents.
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Highlighted Provisions:
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This bill:
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. describes the rights of parents and the obligations of the state with regard to children
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and the protection of children;
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. provides that government action in relation to parents and their children is subject to
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strict scrutiny and must be justified by a compelling state interest;
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. provides that all portions of the Utah Code relating to child protection be interpreted
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and applied consistent with certain parental rights and government obligations
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described in this bill;
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. requires that the state juvenile court:
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. act in the best interests of a minor in all cases; and
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. preserve and strengthen family ties;
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. provides that the appointment of an attorney guardian ad litem for a minor shall be:
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. made in a hearing after the minor's parents are given notice and an opportunity
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to be heard regarding the appointment; and
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. based on findings that establish the necessity for the appointment;
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. provides that, in deciding whether to appoint an attorney guardian ad litem for a
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minor, the court may not presume that a parent and the parent's child are
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adversaries, or that their interests are in conflict;
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. provides that the appointment of an attorney guardian ad litem may be terminated at
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any stage of a child protection proceeding upon motion of the court or any party to
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the proceeding; and
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. makes technical changes.
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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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62A-4a-201, as last amended by Chapter 274, Laws of Utah 2000
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78-3a-102, as last amended by Chapter 329, Laws of Utah 1997
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78-3a-912, as last amended by Chapter 356, Laws of Utah 2004
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
62A-4a-201
is amended to read:
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62A-4a-201. Rights of parents -- Children's rights -- Interest and responsibility of
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state.
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(1) (a) Under both the United States Constitution and the constitution of this state, a
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parent possesses a fundamental liberty interest in the care, custody, and management of the
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parent's children. A fundamentally fair process must be provided to parents if the state moves
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to challenge or interfere with parental rights. A governmental entity must support any actions
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or allegations made in opposition to the rights and desires of a parent regarding the parent's
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children by sufficient evidence to satisfy a parent's constitutional entitlement to heightened
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protection against government interference with the parent's fundamental rights and liberty
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interests. The required standard of proof shall eliminate to the fullest extent possible the
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likelihood of an erroneous judgement in an adjudication involving parents, children, and
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private family life.
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(b) The fundamental liberty interest of a parent concerning the care, custody, and
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management of the parent's children is recognized, protected, and does not cease to exist
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simply because a parent may fail to be a model parent or because the parent's child is placed in
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the temporary custody of the state. At all times, a parent retains a vital interest in preventing
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the irretrievable destruction of family life. Government action in relation to parents and their
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children is subject to strict scrutiny and may not exceed the least restrictive means or
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alternatives available to accomplish a compelling state interest.
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[(1) (a)] (c) [Courts have recognized a general presumption that it] It is in the best
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interest and welfare of a child to be raised under the care and supervision of his natural parents.
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A child's need for a normal family life in a permanent home, and for positive, nurturing family
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relationships will usually best be met by his natural parents. Additionally, the integrity of the
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family unit, and the right of parents to conceive and raise their children have found protection
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in the due process clause of the Fourteenth Amendment to the United States Constitution. The
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right of a fit, competent parent to raise his child without undue government interference is a
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fundamental liberty interest that has long been protected by the laws and Constitution of this
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state and of the United States.
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[(b)] (d) It is the public policy of this state that parents retain the fundamental right and
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duty to exercise primary control over the care, supervision, upbringing, and education of their
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children [who are in their custody].
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(e) Subsections (2) through (7) and all portions of the Utah Code that relate to child
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protection shall be interpreted and applied consistent with Subsection (1).
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(2) It is also the public policy of this state that children have the right to protection
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from abuse and neglect, and that the state retains a compelling interest in investigating,
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prosecuting, and punishing abuse and neglect, as defined in this chapter, and in Title 78,
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Chapter 3a, Juvenile Courts. Therefore, [as a counterweight to parental rights,] the state, as
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parens patriae, has an interest in and responsibility to protect children whose parents abuse
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them or do not adequately provide for their welfare. There [are] may be circumstances where a
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parent's conduct or condition is a substantial departure from the norm and the parent is unable
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or unwilling to render safe and proper parental care and protection. Under those circumstances,
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the state may take action for the welfare and protection of the parent's children [is the
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consideration of paramount importance].
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(3) When the division intervenes on behalf of an abused, neglected, or dependent child,
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it shall take into account the child's need for protection from immediate harm. Throughout its
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involvement, the division shall utilize the least intrusive and least restrictive means available to
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protect a child, in an effort to ensure that children are brought up in stable, permanent families,
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rather than in temporary foster placements under the supervision of the state.
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(4) When circumstances within the family pose a threat to the child's immediate safety
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or welfare, the [state's interest in the child's welfare is paramount to the rights of a parent. The]
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division may obtain custody of the child for a planned period and place him in a safe
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environment, in accordance with the requirements of Title 78, Chapter 3a, Part 3, Abuse,
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Neglect, and Dependency Proceedings.
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(5) In determining and making "reasonable efforts" with regard to a child, pursuant to
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the provisions of Section
62A-4a-203
[and keeping with the presumptions described in
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Subsection (1)], both the division's and the court's paramount concern shall be the child's
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health, safety, and welfare. The desires of a parent for the parent's child shall be given full and
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serious consideration by the division and the court.
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(6) In cases where actual sexual abuse, abandonment, or serious physical abuse or
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neglect are [involved] established, the state has no duty to make "reasonable efforts" or to, in
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any other way, attempt to maintain a child in his home, provide reunification services, or to
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attempt to rehabilitate the offending parent or parents. This Subsection (6) does not exempt the
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division from providing court-ordered services.
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(7) (a) It is the division's obligation, under federal law, to achieve permanency for
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children who are abused, neglected, or dependent. If the use or continuation of "reasonable
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efforts," as described in Subsections (5) and (6), is determined to be inconsistent with the
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permanency plan for a child, then measures shall be taken, in a timely manner, to place the
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child in accordance with the permanency plan, and to complete whatever steps are necessary to
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finalize the permanent placement of the child.
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(b) If, because of his conduct or condition, a parent is determined to be unfit or
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incompetent based on the grounds for termination of parental rights described in Title 78,
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Chapter 3a, Part 4, Termination of Parental Rights Act, the welfare and best interest of the
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child is of paramount importance, and shall govern in determining whether that parent's rights
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should be terminated.
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Section 2.
Section
78-3a-102
is amended to read:
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78-3a-102. Establishment of juvenile court -- Organization and status of court --
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Purpose.
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(1) There is established for the state a juvenile court.
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(2) The juvenile court is a court of record. It shall have a seal, and its judges, clerks,
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and referees have the power to administer oaths and affirmations.
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(3) The juvenile court is of equal status with the district courts of the state.
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(4) The juvenile court is established as a forum for the resolution of all matters
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properly brought before it, consistent with applicable constitutional and statutory requirements
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of due process.
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(5) The purpose of the court under this chapter is to:
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(a) promote public safety and individual accountability by the imposition of
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appropriate sanctions on persons who have committed acts in violation of law;
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(b) order appropriate measures to promote guidance and control, preferably in the
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minor's own home, as an aid in the prevention of future unlawful conduct and the development
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of responsible citizenship;
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(c) where appropriate, order rehabilitation, reeducation, and treatment for persons who
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have committed acts bringing them within the court's jurisdiction;
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(d) adjudicate matters that relate to minors who are beyond parental or adult control
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and to establish appropriate authority over these minors by means of placement and control
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orders;
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(e) adjudicate matters that relate to abused, neglected, and dependent minors and to
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provide care and protection for these minors by placement, protection, and custody orders;
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(f) remove a minor from parental custody only where the minor's safety or welfare, or
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the public safety, may not otherwise be adequately safeguarded; and
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(g) consistent with the ends of justice, [strive to] act in the best interests of the
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[minor's] minor in all cases and [attempt to] preserve and strengthen family ties [where
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possible].
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Section 3.
Section
78-3a-912
is amended to read:
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78-3a-912. Appointment of attorney guardian ad litem -- Right of refusal --
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Duties and responsibilities -- Training -- Trained staff and court-appointed special
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advocate volunteers -- Costs -- Immunity -- Annual report.
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(1) (a) The court may appoint an attorney guardian ad litem to represent the best
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interest of a minor involved in any case before the court and shall consider [only] the best
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interest of a minor, consistent with the provisions of Section
62A-4a-201
, in determining
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whether to appoint a guardian ad litem.
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(b) The appointment of an attorney guardian ad litem under Subsection (1)(a), shall be
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made in a hearing where the parents of the minor are given notice to be present and an
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opportunity to express the parents' preferences and concerns relating to the appointment of an
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attorney guardian ad litem.
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(c) (i) In deciding whether to appoint an attorney guardian ad litem, the court may not
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presume that a parent and the parent's child are adversaries or that their interests are in conflict.
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(ii) In all cases where an attorney guardian ad litem is appointed, the court shall make a
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finding that establishes the necessity of the appointment.
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(2) [An] If appointed, an attorney guardian ad litem shall represent the best interest of
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each minor who may become the subject of a petition alleging abuse, neglect, or dependency,
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from the date the minor is removed from the minor's home by the division, or the date the
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petition is filed, whichever occurs earlier.
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(3) The Office of the Guardian Ad Litem Director, through an attorney guardian ad
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litem, shall:
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(a) represent the best interest of the minor in all proceedings;
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(b) be trained in applicable statutory, regulatory, and case law, and in accordance with
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the United States Department of Justice National Court Appointed Special Advocate
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Association guidelines, prior to representing any minor before the court;
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(c) conduct or supervise an independent investigation in order to obtain first-hand, a
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clear understanding of the situation and needs of the child;
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(d) (i) personally meet with the minor;
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(ii) personally interview the minor if the minor is old enough to communicate;
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(iii) determine the minor's goals and concerns regarding placement; and
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(iv) personally assess or supervise an assessment of the appropriateness and safety of
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the minor's environment in each placement;
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(e) file written motions, responses, or objections at all stages of a proceeding when
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necessary to protect the best interest of a minor;
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(f) personally or through a trained volunteer, paralegal, or other trained staff, attend all
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administrative and foster care citizen review board hearings pertaining to the minor's case;
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(g) participate in all appeals unless excused by order of the court;
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(h) be familiar with local experts who can provide consultation and testimony
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regarding the reasonableness and appropriateness of efforts made by the Division of Child and
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Family Services to maintain a minor in the minor's home or to reunify a minor with the minor's
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parent;
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(i) to the extent possible, and unless it would be detrimental to the minor, personally or
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through a trained volunteer, paralegal, or other trained staff, keep the minor advised of the
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status of the minor's case, all court and administrative proceedings, discussions, and proposals
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made by other parties, court action, and psychiatric, medical, or other treatment or diagnostic
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services that are to be provided to the minor;
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(j) review proposed orders for, and as requested by the court, prepare proposed orders
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with clear and specific directions regarding services, treatment, and evaluation, assessment, and
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protection of the minor and the minor's family; and
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(k) personally or through a trained volunteer, paralegal, or other trained staff, monitor
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implementation of a minor's treatment plan and any dispositional orders to determine whether
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services ordered by the court are actually provided, are provided in a timely manner, and
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attempt to assess whether they are accomplishing their intended goal.
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(4) (a) An attorney guardian ad litem may use trained volunteers, in accordance with
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Title 67, Chapter 20, Volunteer Government Workers Act, trained paralegals, and other trained
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staff to assist in investigation and preparation of information regarding the cases of individual
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minors before the court. An attorney guardian ad litem may not, however, delegate the
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attorney's responsibilities described in Subsection (3).
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(b) All volunteers, paralegals, and staff utilized pursuant to this section shall be trained
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in and follow, at a minimum, the guidelines established by the United States Department of
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Justice Court Appointed Special Advocate Association.
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(c) The court may use volunteers trained in accordance with the requirements of
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Subsection (4)(b) to assist in investigation and preparation of information regarding the cases
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of individual minors within the jurisdiction.
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(d) When possible and appropriate, the court may use a volunteer who is a peer of the
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minor appearing before the court, in order to provide assistance to that minor, under the
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supervision of an attorney guardian ad litem or the attorney's trained volunteer, paralegal, or
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other trained staff.
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(5) (a) The attorney guardian ad litem shall continue to represent the best interest of the
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minor until released from duties by the court.
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(b) The appointment of the attorney guardian ad litem may be terminated at any stage
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of the proceeding upon motion of:
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(i) the court; or
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(ii) any party to the proceeding, as approved by the court.
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(6) (a) The juvenile court is responsible for all costs resulting from the appointment of
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an attorney guardian ad litem and the costs of volunteer, paralegal, and other staff appointment
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and training, and shall use funds appropriated by the Legislature for the guardian ad litem
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program to cover those costs.
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(b) (i) When the court appoints an attorney guardian ad litem under this section, the
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court may assess all or part of the attorney's fees, court costs, and paralegal, staff, and volunteer
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expenses against the minor's parents, parent, or legal guardian in a proportion that the court
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determines to be just and appropriate.
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(ii) The court may not assess those fees or costs against a legal guardian, when that
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guardian is the state, or against a parent who is found to be impecunious. If a person claims to
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be impecunious, the court shall require of that person an affidavit of impecuniosity as provided
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in Section
78-7-36
and the court shall follow the procedures and make the determinations as
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provided in Section [
78-7-36
]
78-7-37
.
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(7) An attorney guardian ad litem appointed under this section, when serving in the
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scope of the attorney guardian ad litem's duties as guardian ad litem is considered an employee
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of the state for purposes of indemnification under Title 63, Chapter 30, Utah Governmental
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Immunity Act.
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(8) (a) An attorney guardian ad litem shall represent the best interest of a minor. If the
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minor's wishes differ from the attorney's determination of the minor's best interest, the attorney
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guardian ad litem shall communicate the minor's wishes to the court in addition to presenting
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the attorney's determination of the minor's best interest. A difference between the minor's
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wishes and the attorney's determination of best interest may not be considered a conflict of
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interest for the attorney.
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(b) The court may appoint one attorney guardian ad litem to represent the best interests
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of more than one minor child of a marriage.
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(9) An attorney guardian ad litem shall be provided access to all Division of Child and
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Family Services records regarding the minor at issue and the minor's family.
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(10) An attorney guardian ad litem shall maintain current and accurate records
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regarding the number of times the attorney has had contact with each minor and the actions the
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attorney has taken in representation of the minor's best interest.
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(11) (a) Except as provided in Subsection (11)(b), all records of an attorney guardian
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ad litem are confidential and may not be released or made public upon subpoena, search
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warrant, discovery proceedings, or otherwise. This subsection supersedes Title 63, Chapter 2,
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Government Records Access and Management Act.
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(b) All records of an attorney guardian ad litem are subject to legislative subpoena,
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under Title 36, Chapter 14, Legislative Subpoena Powers, and shall be released to the
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Legislature.
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(c) Records released in accordance with Subsection (11)(b) shall be maintained as
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confidential by the Legislature. The Office of the Legislative Auditor General may, however,
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include summary data and nonidentifying information in its audits and reports to the
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Legislature.
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(d) Because of the unique role of an attorney guardian ad litem described in Subsection
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(8), and the state's role and responsibility to provide a guardian ad litem program and, as parens
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patriae, to protect minors, Subsection (11)(b) constitutes an exception to Rules of Professional
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Conduct, Rule 1.6, as provided by Rule 1.6(b)(4). A claim of attorney-client privilege does not
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bar access to the records of an attorney guardian ad litem by the Legislature, through legislative
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subpoena.
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(e) The Office of the Guardian Ad Litem shall present an annual report to the Child
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Welfare Legislative Oversight Panel detailing:
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(i) the development, policy, and management of the statewide guardian ad litem
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program;
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(ii) the training and evaluation of attorney guardians ad litem and volunteers; and
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(iii) the number of children served by the Office of the Guardian Ad Litem.
Legislative Review Note
as of 2-9-05 11:19 AM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.