Bill Summary – FastDemocracy

Enrolled Copy                                                                            H.B. 33
               ABUSE, NEGLECT, AND DEPENDENCY PROCEEDINGS
                                              AMENDMENTS
                                       2020 GENERAL SESSION
                                             STATE OF UTAH
                               Chief Sponsor: Karianne Lisonbee
                                Senate Sponsor: Wayne A. Harper
 7
 LONG TITLE
 General Description:
        This bill addresses proceedings in regards to the abuse, neglect, or dependency of a
 child and termination of parental rights.
 Highlighted Provisions:
        This bill:
        < allows a party to request a hearing on reunification services if a petition for
 termination of parental rights is filed before a dispositional hearing;
        < provides that the court find termination of parental rights is strictly necessary from
 the child's point of view;
        < requires the court to take into account reunification and kinship preferences in
 determining whether to terminate parental rights; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        78A-6-302, as last amended by Laws of Utah 2019, Chapters 136, 335, and 388
        78A-6-304, as renumbered and amended by Laws of Utah 2008, Chapter 3
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        78A-6-306, as last amended by Laws of Utah 2019, Chapters 136, 326, and 335
        78A-6-314, as last amended by Laws of Utah 2019, Chapter 71
        78A-6-503, as last amended by Laws of Utah 2013, Chapter 340
        78A-6-507, as last amended by Laws of Utah 2012, Chapter 281
33
 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 78A-6-302 is amended to read:
        78A-6-302. Court-ordered protective custody of a child following petition filing --
 Grounds.
        (1) When a petition is filed under Section 78A-6-304, the court shall apply, in
 addressing the petition, the least restrictive means and alternatives available to accomplish a
 compelling state interest and to prevent irretrievable destruction of family life as described in
 Subsections 62A-4a-201(1) and (7)(a) and Section 78A-6-503.
        [(1)] (2) After a petition has been filed under Section 78A-6-304, if the child who is
 the subject of the petition is not in the protective custody of the division, a court may order that
 the child be removed from the child's home or otherwise taken into protective custody if the
 court finds, by a preponderance of the evidence, that any one or more of the following
 circumstances exist:
        (a) (i) there is an imminent danger to the physical health or safety of the child; and
        (ii) the child's physical health or safety may not be protected without removing the
 child from the custody of the child's parent or guardian;
        (b) (i) a parent or guardian engages in or threatens the child with unreasonable conduct
 that causes the child to suffer harm; and
        (ii) there are no less restrictive means available by which the child's emotional health
 may be protected without removing the child from the custody of the child's parent or guardian;
        (c) the child or another child residing in the same household has been, or is considered
 to be at substantial risk of being, physically abused, sexually abused, or sexually exploited, by a
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       Enrolled Copy                                                                              H.B. 33
 parent or guardian, a member of the parent's or guardian's household, or other person known to
 the parent or guardian;
          (d) the parent or guardian is unwilling to have physical custody of the child;
          (e) the child is abandoned or left without any provision for the child's support;
          (f) a parent or guardian who has been incarcerated or institutionalized has not arranged
 or cannot arrange for safe and appropriate care for the child;
          (g) (i) a relative or other adult custodian with whom the child is left by the parent or
 guardian is unwilling or unable to provide care or support for the child;
          (ii) the whereabouts of the parent or guardian are unknown; and
          (iii) reasonable efforts to locate the parent or guardian are unsuccessful;
          (h) subject to Subsections 78A-6-105(39) and 78A-6-117(2) and Section 78A-6-301.5,
 the child is in immediate need of medical care;
          (i) (i) a parent's or guardian's actions, omissions, or habitual action create an
 environment that poses a serious risk to the child's health or safety for which immediate
 remedial or preventive action is necessary; or
          (ii) a parent's or guardian's action in leaving a child unattended would reasonably pose
 a threat to the child's health or safety;
          (j) the child or another child residing in the same household has been neglected;
          (k) the child's natural parent:
          (i) intentionally, knowingly, or recklessly causes the death of another parent of the
 child;
          (ii) is identified by a law enforcement agency as the primary suspect in an investigation
 for intentionally, knowingly, or recklessly causing the death of another parent of the child; or
          (iii) is being prosecuted for or has been convicted of intentionally, knowingly, or
 recklessly causing the death of another parent of the child;
          (l) an infant has been abandoned, as defined in Section 78A-6-316;
          (m) (i) the parent or guardian, or an adult residing in the same household as the parent
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 or guardian, is charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab
 Act; and
         (ii) any clandestine laboratory operation was located in the residence or on the property
 where the child resided; or
         (n) the child's welfare is otherwise endangered.
         [(2)] (3) (a) For purposes of Subsection [(1)] (2)(a), if a child has previously been
 adjudicated as abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or
 dependency occurs involving the same substantiated abuser or under similar circumstance as
 the previous abuse, that fact constitutes prima facie evidence that the child cannot safely
 remain in the custody of the child's parent.
         (b) For purposes of Subsection [(1)] (2)(c):
         (i) another child residing in the same household may not be removed from the home
 unless that child is considered to be at substantial risk of being physically abused, sexually
 abused, or sexually exploited as described in Subsection [(1)] (2)(c) or Subsection [(2)]
 (3)(b)(ii); and
         (ii) if a parent or guardian has received actual notice that physical abuse, sexual abuse,
 or sexual exploitation by a person known to the parent has occurred, and there is evidence that
 the parent or guardian failed to protect the child, after having received the notice, by allowing
 the child to be in the physical presence of the alleged abuser, that fact constitutes prima facie
 evidence that the child is at substantial risk of being physically abused, sexually abused, or
 sexually exploited.
         [(3)] (4) (a) For purposes of Subsection [(1)] (2), if the division files a petition under
 Section 78A-6-304, the court shall consider the division's safety and risk assessments described
 in Section 62A-4a-203.1 to determine whether a child should be removed from the custody of
 the child's parent or guardian or should otherwise be taken into protective custody.
         (b) The division shall make a diligent effort to provide the safety and risk assessments
 described in Section 62A-4a-203.1 to the court, guardian ad litem, and counsel for the parent or
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        Enrolled Copy                                                                              H.B. 33
 guardian, as soon as practicable before the shelter hearing described in Section 78A-6-306.
           [(4)] (5) In the absence of one of the factors described in Subsection [(1)] (2), a court
 may not remove a child from the parent's or guardian's custody on the basis of:
           (a) educational neglect, truancy, or failure to comply with a court order to attend
 school;
           (b) mental illness or poverty of the parent or guardian; or
           (c) disability of the parent or guardian, as defined in Section 57-21-2.
           [(5)] (6) A child removed from the custody of the child's parent or guardian under this
 section may not be placed or kept in a secure detention facility pending further court
 proceedings unless the child is detainable based on guidelines promulgated by the Division of
 Juvenile Justice Services.
           [(6)] (7) This section does not preclude removal of a child from the child's home
 without a warrant or court order under Section 62A-4a-202.1.
           [(7)] (8) (a) Except as provided in Subsection [(7)] (8)(b), a court or the Division of
 Child and Family Services may not remove a child from the custody of the child's parent or
 guardian on the sole or primary basis that the parent or guardian refuses to consent to:
           (i) the administration of a psychotropic medication to a child;
           (ii) a psychiatric, psychological, or behavioral treatment for a child; or
           (iii) a psychiatric or behavioral health evaluation of a child.
           (b) Notwithstanding Subsection [(7)] (8)(a), a court or the Division of Child and
 Family Services may remove a child under conditions that would otherwise be prohibited under
 Subsection [(7)] (8)(a) if failure to take an action described under Subsection [(7)] (8)(a) would
 present a serious, imminent risk to the child's physical safety or the physical safety of others.
           Section 2. Section 78A-6-304 is amended to read:
           78A-6-304. Petition filed.
           (1) For purposes of this section, "petition" means a petition to commence proceedings
 in a juvenile court alleging that a child is:
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        H.B. 33
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        (a) abused;
        (b) neglected; or
        (c) dependent.
        (2) (a) Subject to Subsection (2)(b), any interested person may file a petition.
        (b) A person described in Subsection (2)(a) shall make a referral with the division
 before the person files a petition.
        (3) If the child who is the subject of a petition is removed from the child's home by the
 division, the petition shall be filed on or before the date of the initial shelter hearing described
 in Section 78A-6-306.
        (4) The petition shall be verified, and contain all of the following:
        (a) the name, age, and address, if any, of the child upon whose behalf the petition is
 brought;
        (b) the names and addresses, if known to the petitioner, of both parents and any
 guardian of the child;
        (c) a concise statement of facts, separately stated, to support the conclusion that the
 child upon whose behalf the petition is being brought is abused, neglected, or dependent; and
        (d) a statement regarding whether the child is in protective custody, and if so, the date
 and precise time the child was taken into protective custody.
        (5) If a petition is filed under this section, and a petition for termination of parental
 rights is filed under Section 78A-6-504 before a dispositional hearing, a party may request a
 hearing on whether reunification services are appropriate in accordance with the factors
 described in Subsections 78A-6-312(21) and (23).
        Section 3. Section 78A-6-306 is amended to read:
        78A-6-306. Shelter hearing.
        (1) A shelter hearing shall be held within 72 hours excluding weekends and holidays
 after any one or all of the following occur:
        (a) removal of the child from the child's home by the division;
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        Enrolled Copy                                                                              H.B. 33
         (b) placement of the child in the protective custody of the division;
         (c) emergency placement under Subsection 62A-4a-202.1(4);
         (d) as an alternative to removal of the child, a parent enters a domestic violence shelter
 at the request of the division; or
         (e) a "Motion for Expedited Placement in Temporary Custody" is filed under
 Subsection 78A-6-106(4).
         (2) If one of the circumstances described in Subsections (1)(a) through (e) occurs, the
 division shall issue a notice that contains all of the following:
         (a) the name and address of the person to whom the notice is directed;
         (b) the date, time, and place of the shelter hearing;
         (c) the name of the child on whose behalf a petition is being brought;
         (d) a concise statement regarding:
         (i) the reasons for removal or other action of the division under Subsection (1); and
         (ii) the allegations and code sections under which the proceeding has been instituted;
         (e) a statement that the parent or guardian to whom notice is given, and the child, are
 entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is
 indigent and cannot afford an attorney, and desires to be represented by an attorney, one will be
 provided in accordance with Title 78B, Chapter 22, Indigent Defense Act; and
         (f) a statement that the parent or guardian is liable for the cost of support of the child in
 the protective custody, temporary custody, and custody of the division, and the cost for legal
 counsel appointed for the parent or guardian under Subsection (2)(e), according to the financial
 ability of the parent or guardian.
         (3) The notice described in Subsection (2) shall be personally served as soon as
 possible, but no later than one business day after removal of the child from the child's home, or
 the filing of a "Motion for Expedited Placement in Temporary Custody" under Subsection
 78A-6-106(4), on:
         (a) the appropriate guardian ad litem; and
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        H.B. 33
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        (b) both parents and any guardian of the child, unless the parents or guardians cannot
 be located.
        (4) The following persons shall be present at the shelter hearing:
        (a) the child, unless it would be detrimental for the child;
        (b) the child's parents or guardian, unless the parents or guardian cannot be located, or
 fail to appear in response to the notice;
        (c) counsel for the parents, if one is requested;
        (d) the child's guardian ad litem;
        (e) the caseworker from the division who is assigned to the case; and
        (f) the attorney from the attorney general's office who is representing the division.
        (5) (a) At the shelter hearing, the court shall:
        (i) provide an opportunity to provide relevant testimony to:
        (A) the child's parent or guardian, if present; and
        (B) any other person having relevant knowledge; [and]
        (ii) subject to Section 78A-6-305, provide an opportunity for the child to testify[.]; and
        (iii) in accordance with Subsections 78A-6-307(18)(c) through (e), grant preferential
 consideration to a relative or friend for the temporary placement of the child.
        (b) The court:
        (i) may consider all relevant evidence, in accordance with the Utah Rules of Juvenile
 Procedure;
        (ii) shall hear relevant evidence presented by the child, the child's parent or guardian,
 the requesting party, or their counsel; and
        (iii) may in its discretion limit testimony and evidence to only that which goes to the
 issues of removal and the child's need for continued protection.
        (6) If the child is in the protective custody of the division, the division shall report to
 the court:
        (a) the reason why the child was removed from the parent's or guardian's custody;
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        Enrolled Copy                                                                               H.B. 33
         (b) any services provided to the child and the child's family in an effort to prevent
 removal;
         (c) the need, if any, for continued shelter;
         (d) the available services that could facilitate the return of the child to the custody of
 the child's parent or guardian; and
         (e) subject to Subsections 78A-6-307(18)(c) through (e), whether any relatives of the
 child or friends of the child's parents may be able and willing to accept temporary placement of
 the child.
         (7) The court shall consider all relevant evidence provided by persons or entities
 authorized to present