Bill Summary – FastDemocracy

Enrolled Copy                                                                        H.B. 73
                               DRUG TESTING AMENDMENTS
                                      2021 GENERAL SESSION
                                           STATE OF UTAH
                             Chief Sponsor: Christine F. Watkins
                                Senate Sponsor: Wayne A. Harper
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 LONG TITLE
 General Description:
        This bill addresses drug testing for certain individuals.
 Highlighted Provisions:
        This bill:
        < provides that an individual who is receiving services from the Division of Child and
 Family Services, or is a party to an abuse, neglect, or dependency proceeding, may
 not be ordered or referred for drug testing that is administered through a sample of
 hair or fingernails; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        62A-4a-105, as last amended by Laws of Utah 2020, Chapters 108 and 250
        78A-6-115, as last amended by Laws of Utah 2020, Chapters 12, 132, 250, and 354
        78A-6-312, as last amended by Laws of Utah 2020, Chapter 214
26
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 62A-4a-105 is amended to read:
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         62A-4a-105. Division responsibilities.
         (1) The division shall:
         (a) administer services to minors and families, including:
         (i) child welfare services;
         (ii) domestic violence services; and
         (iii) all other responsibilities that the Legislature or the executive director may assign
 to the division;
         (b) provide the following services:
         (i) financial and other assistance to an individual adopting a child with special needs
 under Part 9, Adoption Assistance, not to exceed the amount the division would provide for the
 child as a legal ward of the state;
         (ii) non-custodial and in-home services, including:
         (A) services designed to prevent family break-up; and
         (B) family preservation services;
         (iii) reunification services to families whose children are in substitute care in
 accordance with the requirements of this chapter and Title 78A, Chapter 6, Juvenile Court Act;
         (iv) protective supervision of a family, upon court order, in an effort to eliminate abuse
 or neglect of a child in that family;
         (v) shelter care in accordance with the requirements of this chapter and Title 78A,
 Chapter 6, Juvenile Court Act;
         (vi) domestic violence services, in accordance with the requirements of federal law;
         (vii) protective services to victims of domestic violence, as defined in Section 77-36-1,
 and their children, in accordance with the provisions of this chapter and Title 78A, Chapter 6,
 Part 3, Abuse, Neglect, and Dependency Proceedings;
         (viii) substitute care for dependent, abused, and neglected children;
         (ix) services for minors who are victims of human trafficking or human smuggling as
 described in Sections 76-5-308 through 76-5-310 or who have engaged in prostitution or sexual
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 solicitation as defined in Sections 76-10-1302 and 76-10-1313; and
         (x) training for staff and providers involved in the administration and delivery of
 services offered by the division in accordance with this chapter;
         (c) establish standards for all:
         (i) contract providers of out-of-home care for minors and families;
         (ii) facilities that provide substitute care for dependent, abused, and neglected children
 placed in the custody of the division; and
         (iii) direct or contract providers of domestic violence services described in Subsection
 (1)(b)(vi);
         (d) have authority to:
         (i) contract with a private, nonprofit organization to recruit and train foster care
 families and child welfare volunteers in accordance with Section 62A-4a-107.5; and
         (ii) approve facilities that meet the standards established under Subsection (1)(c) to
 provide substitute care for dependent, abused, and neglected children placed in the custody of
 the division;
         (e) cooperate with the federal government in the administration of child welfare and
 domestic violence programs and other human service activities assigned by the department;
         (f) if there is a privacy agreement with an Indian tribe to protect the confidentiality of
 division records to the same extent that the division is required to protect division records,
 cooperate with and share all appropriate information in the division's possession regarding an
 Indian child, the Indian child's parent or guardian, or a proposed placement for the Indian child
 with the Indian tribe that is affiliated with the Indian child;
         (g) in accordance with Subsection (2)(a), promote and enforce state and federal laws
 enacted for the protection of abused, neglected, and dependent children, in accordance with the
 requirements of this chapter, unless administration is expressly vested in another division or
 department of the state;
         (h) cooperate with the Workforce Development Division within the Department of
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 Workforce Services in meeting the social and economic needs of an individual who is eligible
 for public assistance;
         (i) compile relevant information, statistics, and reports on child and family service
 matters in the state;
         (j) prepare and submit to the department, the governor, and the Legislature reports of
 the operation and administration of the division in accordance with the requirements of
 Sections 62A-4a-117 and 62A-4a-118;
         (k) within appropriations from the Legislature, provide or contract for a variety of
 domestic violence services and treatment methods;
         (l) ensure regular, periodic publication, including electronic publication, regarding the
 number of children in the custody of the division who:
         (i) have a permanency goal of adoption; or
         (ii) have a final plan of termination of parental rights, pursuant to Section 78A-6-314,
 and promote adoption of those children;
         (m) subject to [Subsection (2)(b),] Subsections (2)(b) and (5), refer an individual
 receiving services from the division to the local substance abuse authority or other private or
 public resource for a court-ordered drug screening test;
         (n) report before November 30, 2020, and every third year thereafter, to the Social
 Services Appropriations Subcommittee regarding:
         (i) the daily reimbursement rate that is provided to licensed foster parents based on
 level of care;
         (ii) the amount of money spent on daily reimbursements for licensed foster parents in
 the state during the previous fiscal year; and
         (iii) any recommended changes to the division's budget to support the daily
 reimbursement rates described in Subsection (1)(n)(i); and
         (o) perform other duties and functions required by law.
         (2) (a) In carrying out the requirements of Subsection (1)(g), the division shall:
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        Enrolled Copy                                                                             H.B. 73
         (i) cooperate with the juvenile courts, the Division of Juvenile Justice Services, and
 with all public and private licensed child welfare agencies and institutions to develop and
 administer a broad range of services and support;
         (ii) take the initiative in all matters involving the protection of abused or neglected
 children, if adequate provisions have not been made or are not likely to be made; and
         (iii) make expenditures necessary for the care and protection of the children described
 in this Subsection (2)(a), within the division's budget.
         (b) When an individual is referred to a local substance abuse authority or other private
 or public resource for court-ordered drug screening under Subsection (1)(m), the court shall
 order the individual to pay all costs of the tests unless:
         (i) the cost of the drug screening is specifically funded or provided for by other federal
 or state programs;
         (ii) the individual is a participant in a drug court; or
         (iii) the court finds that the individual is impecunious.
         (3) Except to the extent provided by rule, the division is not responsible for
 investigating domestic violence in the presence of a child, as described in Section 76-5-109.1.
         (4) The division may not require a parent who has a child in the custody of the division
 to pay for some or all of the cost of any drug testing the parent is required to undergo.
         (5) The division may not refer an individual who is receiving services from the division
 for drug testing by means of a hair or fingernail test that is administered to detect the presence
 of drugs.
         Section 2. Section 78A-6-115 is amended to read:
         78A-6-115. Hearings -- Record -- County attorney or district attorney
 responsibilities -- Attorney general responsibilities -- Disclosure -- Admissibility of
 evidence -- Cannabis -- Drug testing.
         (1) (a) A verbatim record of the proceedings shall be taken in all cases that might result
 in deprivation of custody as defined in this chapter. In all other cases a verbatim record shall
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 also be made unless dispensed with by the court.
           (b) (i) For purposes of this Subsection (1)(b):
           (A) "Record of a proceeding" does not include documentary materials of any type
 submitted to the court as part of the proceeding, including items submitted under Subsection
 (4)(a).
           (B) "Subjects of the record" includes the child's guardian ad litem, the child's legal
 guardian, the Division of Child and Family Services, and any other party to the proceeding.
           (ii) Notwithstanding any other provision, including Title 63G, Chapter 2, Government
 Records Access and Management Act, the court shall release a record of a proceeding made
 under Subsection (1)(a) to any person upon a finding on the record for good cause.
           (iii) Following a petition for a record of a proceeding made under Subsection (1)(a),
 the court shall:
           (A) provide notice to all subjects of the record that a request for release of the record
 has been made; and
           (B) allow sufficient time for the subjects of the record to respond before making a
 finding on the petition.
           (iv) A record of a proceeding may not be released under this Subsection (1)(b) if the
 court's jurisdiction over the subjects of the proceeding ended more than 12 months before the
 day on which the request is made.
           (2) (a) Except as provided in Subsection (2)(b), the county attorney or, if within a
 prosecution district, the district attorney shall represent the state in any proceeding in a minor's
 case.
           (b) Subject to the attorney general's prosecutorial discretion in civil enforcement
 actions, the attorney general shall enforce all provisions of Title 62A, Chapter 4a, Child and
 Family Services, and this chapter, relating to:
           (i) protection or custody of an abused, neglected, or dependent child; and
           (ii) petitions for termination of parental rights.
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        Enrolled Copy                                                                               H.B. 73
        (3) The board may adopt special rules of procedure to govern proceedings involving
 violations of traffic laws or ordinances, wildlife laws, and boating laws. However, proceedings
 involving offenses under Section 78A-6-606 are governed by that section regarding suspension
 of driving privileges.
        (4) (a) For the purposes of determining proper disposition of the minor in dispositional
 hearings and establishing the fact of abuse, neglect, or dependency in adjudication hearings and
 in hearings upon petitions for termination of parental rights, written reports and other material
 relating to the minor's mental, physical, and social history and condition may be received in
 evidence and may be considered by the court along with other evidence. The court may require
 that the individual who wrote the report or prepared the material appear as a witness if the
 individual is reasonably available.
        (b) For the purpose of determining proper disposition of a minor alleged to be or
 adjudicated as abused, neglected, or dependent, dispositional reports prepared by the division
 under Section 78A-6-315 may be received in evidence and may be considered by the court
 along with other evidence. The court may require any individual who participated in preparing
 the dispositional report to appear as a witness, if the individual is reasonably available.
        (5) (a) Except as provided in Subsections (5)(c) through (e), in an abuse, neglect, or
 dependency proceeding occurring after the commencement of a shelter hearing under Section
 78A-6-306 or the filing of a petition under Section 78A-6-304, each party to the proceeding
 shall provide in writing to the other parties or their counsel any information which the party:
        (i) plans to report to the court at the proceeding; or
        (ii) could reasonably expect would be requested of the party by the court at the
 proceeding.
        (b) The disclosure required under Subsection (5)(a) shall be made:
        (i) for dispositional hearings under Sections 78A-6-311 and 78A-6-312, no less than
 five days before the day on which the proceeding is held;
        (ii) for proceedings under Chapter 6, Part 5, Termination of Parental Rights Act, in
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 accordance with Utah Rules of Civil Procedure; and
        (iii) for all other proceedings, no less than five days before the day on which the
 proceeding is held.
        (c) The division is not required to provide a court report or a child and family plan to
 each party to the proceeding if:
        (i) the information is electronically filed with the court; and
        (ii) each party to the proceeding has access to the electronically filed information.
        (d) If a party to a proceeding obtains information after the deadline in Subsection
 (5)(b), the information is exempt from the disclosure required under Subsection (5)(a) if the
 party certifies to the court that the information was obtained after the deadline.
        (e) Subsection (5)(a) does not apply to:
        (i) pretrial hearings; and
        (ii) the frequent, periodic review hearings held in a dependency drug court case to
 assess and promote the parent's progress in substance use disorder treatment.
        (6) For the purpose of establishing the fact of abuse, neglect, or dependency, the court
 may, in the court's discretion, consider evidence of statements made by a child under eight
 years of age to an individual in a trust relationship.
        (7) (a) As used in this Subsection (7):
        (i) "Cannabis" means the same as that term is defined in Section 26-61a-102.
        (ii) "Cannabis product" means the same as that term is defined in Section 26-61a-102.
        (iii) (A) "Chronic" means repeated or patterned.
        (B) "Chronic" does not mean an isolated incident.
        (iv) "Directions of use" means the same as that term is defined in Section 26-61a-102.
        (v) "Dosing guidelines" means the same as that term is defined in Section 26-61a-102.
        (vi) "Medical cannabis" means the same as that term is defined in Section 26-61a-102.
        (vii) "Medical cannabis cardholder" means the same as that term is defined in Section
 26-61a-102.
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        Enrolled Copy                                                                              H.B. 73
         (viii) "Qualified medical provider" means the same as that term is defined in Section
 26-61a-102.
         (b) In any child welfare proceeding in which the court makes a finding, determination,
 or otherwise considers an individual's possession or use of medical cannabis, a cannabis
 product, or a medical cannabis device, the court may not consider or treat the individual's
 possession or use any differently than the lawful possession or use of any prescribed controlled
 substance if:
         (i) the individual's possession or use complies with Title 4, Chapter 41a, Cannabis
 Production Establishments;
         (ii) the individual's possession or use complies with Subsection 58-37