LEGISLATIVE GENERAL COUNSEL H.B. 40
6 Approved for Filing: P. Owen 6 4th Sub. (Green)
6 02-22-23 12:41 PM 6
Representative Nelson T. Abbott proposes the following substitute bill:
1 NATIVE AMERICAN CHILD AND FAMILY AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Christine F. Watkins
5 Senate Sponsor: David P. Hinkins
6
7 LONG TITLE
8 General Description:
9 This bill addresses the protection of Indian children and families.
10 Highlighted Provisions:
11 This bill:
12 < enacts the Native American Child and Family Protection Act, including:
13 C defining terms;
14 C addressing effective date and severability;
15 C explaining reconciliation with title;
16 C addressing jurisdiction over child custody proceedings;
17 C providing for actions related to pending court proceedings;
18 C stating parental rights;
19 C providing for voluntary termination;
20 C establishing how consent or other actions are invalidated; 4th Sub. H.B. 40
21 C addressing placement of Indian children;
22 C creating a process to return custody of an Indian child;
23 C addressing information related to tribal affiliation;
24 C authorizing agreements between the state and Indian tribes under certain
25 circumstances;
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4th Sub. (Green) H.B. 40 02-22-23 12:41 PM
26 C addressing improper removal of an Indian child;
27 C explaining the application of state or federal standards;
28 C providing for emergency removal or placement of an Indian child; and
29 C addressing recordkeeping and information availability;
30 < replaces cites to the federal Indian Child Welfare Act with cites to the Native
31 American Child and Family Protection Act;
32 < addresses right to counsel;
33 < addresses sharing of information by agreements;
34 < exempts from certain time frames preferences under the Native American Child and
35 Family Protection Act; and
36 < makes technical and conforming changes.
37 Money Appropriated in this Bill:
38 None
39 Other Special Clauses:
40 None
41 Utah Code Sections Affected:
42 AMENDS:
43 26B-1a-101, as enacted by Laws of Utah 2022, Chapter 245
44 26B-1a-104, as enacted by Laws of Utah 2022, Chapter 245
45 26B-1a-106, as enacted by Laws of Utah 2022, Chapter 245 and last amended by
46 Coordination Clause, Laws of Utah 2022, Chapter 245
47 26B-1a-107, as enacted by Laws of Utah 2022, Chapter 245
48 62A-2-101, as last amended by Laws of Utah 2022, Chapters 334, 468
49 62A-2-117, as last amended by Laws of Utah 2017, Chapter 209
50 78B-6-102, as last amended by Laws of Utah 2019, Chapter 335
51 78B-6-103, as last amended by Laws of Utah 2022, Chapter 335
52 78B-6-107, as last amended by Laws of Utah 2022, Chapter 335
53 78B-6-117, as last amended by Laws of Utah 2022, Chapters 185, 430
54 78B-13-104, as renumbered and amended by Laws of Utah 2008, Chapter 3
55 78B-22-201, as last amended by Laws of Utah 2022, Chapter 281
56 78B-24-102, as enacted by Laws of Utah 2022, Chapter 326
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57 78B-24-202, as enacted by Laws of Utah 2022, Chapter 326
58 80-1-102, as last amended by Laws of Utah 2022, Chapters 155, 185, 217, 255, 326,
59 334, and 430
60 80-2-802, as enacted by Laws of Utah 2022, Chapter 334
61 80-2-1006, as enacted by Laws of Utah 2022, Chapter 334
62 80-2a-101, as enacted by Laws of Utah 2022, Chapter 334 and last amended by
63 Coordination Clause, Laws of Utah 2022, Chapter 334
64 80-2a-304, as last amended by Laws of Utah 2022, Chapter 287 and renumbered and
65 amended by Laws of Utah 2022, Chapter 334
66 80-3-102, as last amended by Laws of Utah 2022, Chapters 287, 334
67 80-3-302, as last amended by Laws of Utah 2022, Chapters 287, 334
68 80-3-502, as renumbered and amended by Laws of Utah 2021, Chapter 261
69 80-4-305, as last amended by Laws of Utah 2022, Chapters 287, 334
70 ENACTS:
71 80-2c-101, Utah Code Annotated 1953
72 80-2c-102, Utah Code Annotated 1953
73 80-2c-103, Utah Code Annotated 1953
74 80-2c-104, Utah Code Annotated 1953
75 80-2c-201, Utah Code Annotated 1953
76 80-2c-202, Utah Code Annotated 1953
77 80-2c-203, Utah Code Annotated 1953
78 80-2c-204, Utah Code Annotated 1953
79 80-2c-205, Utah Code Annotated 1953
80 80-2c-206, Utah Code Annotated 1953
81 80-2c-207, Utah Code Annotated 1953
82 80-2c-208, Utah Code Annotated 1953
83 80-2c-209, Utah Code Annotated 1953
84 80-2c-210, Utah Code Annotated 1953
85 80-2c-211, Utah Code Annotated 1953
86 80-2c-301, Utah Code Annotated 1953
87
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88 Be it enacted by the Legislature of the state of Utah:
89 Section 1. Section 26B-1a-101 is amended to read:
90 26B-1a-101. Definitions.
91 As used in this part:
92 (1) "Director" means the director of the office appointed under Section 26B-1a-103.
93 (2) "Health care" means care, treatment, service, or a procedure to improve, maintain,
94 diagnose, or otherwise affect an individual's physical or mental condition.
95 (3) "Health liaison" means the American Indian-Alaska Native Health Liaison
96 appointed under Section 26B-1a-105.
97 (4) ["ICWA] "Native American child and family liaison" means the [Indian Child
98 Welfare Act Liaison] Native American child and family liaison appointed under Section
99 26B-1a-106.
100 (5) "Office" means the Office of American Indian-Alaska Native Health and Family
101 Services created in Section 26B-1a-102.
102 Section 2. Section 26B-1a-104 is amended to read:
103 26B-1a-104. Duties of the office.
104 The office shall:
105 (1) oversee and coordinate department services for Utah's American Indian-Alaska
106 Native populations;
107 (2) conduct regular and meaningful consultation with Indian tribes when there is a
108 proposed department action that has an impact on an Indian tribe as a sovereign entity;
109 (3) monitor agreements between the department and Utah's American Indian-Alaska
110 Native populations; and
111 (4) oversee the health liaison and [ICWA] Native American child and family liaison.
112 Section 3. Section 26B-1a-106 is amended to read:
113 26B-1a-106. Native American child and family liaison -- Appointment --
114 Qualifications -- Duties.
115 (1) (a) The executive director shall appoint an individual as the [Indian Child Welfare
116 Act Liaison] Native American child and family liaison who:
117 (i) has a bachelor's degree from an accredited university or college; and
118 (ii) is knowledgeable about the areas of child and family services and Indian tribal
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119 child rearing practices.
120 (b) The [ICWA] Native American child and family liaison shall serve under the
121 supervision of the director.
122 (2) The [ICWA] Native American child and family liaison shall:
123 (a) act as a liaison between the department and Utah's American Indian populations
124 regarding child and family services;
125 (b) provide training to department employees regarding the requirements and
126 implementation of [the Indian Child Welfare Act, 25 U.S.C. Secs. 1901-1963] Title 80,
127 Chapter 2c, Native American Child and Family Protection Act;
128 (c) develop and facilitate education and technical assistance programs for Utah's
129 American Indian populations regarding available child and family services;
130 (d) promote and coordinate collaborative efforts between the department and Utah's
131 American Indian population to improve the availability and accessibility of quality child and
132 family services for Utah's American Indian populations; and
133 (e) interact with the following to improve delivery and accessibility of child and family
134 services for Utah's American Indian populations:
135 (i) state agencies and officials; and
136 (ii) providers of child and family services in the public and private sector.
137 Section 4. Section 26B-1a-107 is amended to read:
138 26B-1a-107. Liaison reporting.
139 The health liaison and the [ICWA] Native American child and family liaison shall
140 annually report the liaisons' respective activities and accomplishments to the Native American
141 Legislative Liaison Committee created in Section 36-22-1.
142 Section 5. Section 62A-2-101 is amended to read:
143 62A-2-101. Definitions.
144 As used in this chapter:
145 (1) "Adoption services" means the same as that term is defined in Section 80-2-801.
146 (2) "Adult day care" means nonresidential care and supervision:
147 (a) for three or more adults for at least four but less than 24 hours a day; and
148 (b) that meets the needs of functionally impaired adults through a comprehensive
149 program that provides a variety of health, social, recreational, and related support services in a
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150 protective setting.
151 (3) "Applicant" means a person that applies for an initial license or a license renewal
152 under this chapter.
153 (4) (a) "Associated with the licensee" means that an individual is:
154 (i) affiliated with a licensee as an owner, director, member of the governing body,
155 employee, agent, provider of care, department contractor, or volunteer; or
156 (ii) applying to become affiliated with a licensee in a capacity described in Subsection
157 (4)(a)(i).
158 (b) "Associated with the licensee" does not include:
159 (i) service on the following bodies, unless that service includes direct access to a child
160 or a vulnerable adult:
161 (A) a local mental health authority described in Section 17-43-301;
162 (B) a local substance abuse authority described in Section 17-43-201; or
163 (C) a board of an organization operating under a contract to provide mental health or
164 substance abuse programs, or services for the local mental health authority or substance abuse
165 authority; or
166 (ii) a guest or visitor whose access to a child or a vulnerable adult is directly supervised
167 at all times.
168 (5) (a) "Boarding school" means a private school that:
169 (i) uses a regionally accredited education program;
170 (ii) provides a residence to the school's students:
171 (A) for the purpose of enabling the school's students to attend classes at the school; and
172 (B) as an ancillary service to educating the students at the school;
173 (iii) has the primary purpose of providing the school's students with an education, as
174 defined in Subsection (5)(b)(i); and
175 (iv) (A) does not provide the treatment or services described in Subsection (38)(a); or
176 (B) provides the treatment or services described in Subsection (38)(a) on a limited
177 basis, as described in Subsection (5)(b)(ii).
178 (b) (i) For purposes of Subsection (5)(a)(iii), "education" means a course of study for
179 one or more of grades kindergarten through 12th grade.
180 (ii) For purposes of Subsection (5)(a)(iv)(B), a private school provides the treatment or
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181 services described in Subsection (38)(a) on a limited basis if:
182 (A) the treatment or services described in Subsection (38)(a) are provided only as an
183 incidental service to a student; and
184 (B) the school does not:
185 (I) specifically solicit a student for the purpose of providing the treatment or services
186 described in Subsection (38)(a); or
187 (II) have a primary purpose of providing the treatment or services described in
188 Subsection (38)(a).
189 (c) "Boarding school" does not include a therapeutic school.
190 (6) "Child" means an individual under 18 years old.
191 (7) "Child placing" means receiving, accepting, or providing custody or care for any
192 child, temporarily or permanently, for the purpose of:
193 (a) finding a person to adopt the child;
194 (b) placing the child in a home for adoption; or
195 (c) foster home placement.
196 (8) "Child-placing agency" means a person that engages in child placing.
197 (9) "Client" means an individual who receives or has received services from a licensee.
198 (10) (a) "Congregate care program" means any of the following that provide services to
199 a child:
200 (i) an outdoor youth program;
201 (ii) a residential support program;
202 (iii) a residential treatment program; or
203 (iv) a therapeutic school.
204 (b) "Congregate care program" does not include a human services program that:
205 (i) is licensed to serve adults; and
206 (ii) is approved by the office to service a child for a limited time.
207 (11) "Day treatment" means specialized treatment that is provided to:
208 (a) a client less than 24 hours a day; and
209 (b) four or more persons who:
210 (i) are unrelated to the owner or provider; and
211 (ii) have emotional, psychological, developmental, physical, or behavioral
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212 dysfunctions, impairments, or chemical dependencies.
213 (12) "Department" means the Department of Human Services.
214 (13) "Department contractor" means an individual who:
215 (a) provides services under a contract with the department; and
216 (b) due to the contract with the department, has or will likely have direct access to a
217 child or vulnerable adult.
218 (14) "Direct access" means that an individual has, or likely will have:
219 (a) contact with or access to a child or vulnerable adult that provides the individual
220 with an opportunity for personal communication or touch; or
221 (b) an opportunity to view medical, financial, or other confidential personal identifying
222 information of the child, the child's parents or legal guardians, or the vulnerable adult.
223 (15) "Directly supervised" means that an individual is being supervised under the
224 uninterrupted visual and auditory surveillance of another individual who has a current
225 background screening approval issued by the office.
226 (16) "Director" means the director of the office.
227 (17) "Domestic violence" means the same as that term is defined in Section 77-36-1.
228 (18) "Domestic violence treatment program" means a nonresidential program designed
229 to provide psychological treatment and educational services to perpetrators and victims of
230 domestic violence.
231 (19) "Elder adult" means a person 65 years old or older.
232 (20) "Executive director" means the executive director of the department.
233 (21) "Foster home" means a residence that is licensed or certified by the office for the
234 full-time substitute care of a child.
235 (22) "Health benefit plan" means the same as that term is defined in Section
236 31A-1-301.
237 (23) "Health care provider" means the same as that term is defined in Section
238 78B-3-403.
239 (24) "Health insurer" means the same as that term is defined in Section 31A-22-615.5.
240 (25) (a) "Human services program" means:
241 (i) a foster home;
242 (ii) a therapeutic school;
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243 (iii) a youth program;
244 (iv) an outdoor youth program;
245 (v) a residential treatment program;
246 (vi) a residential support program;
247 (vii) a resource family home;
248 (viii) a recovery residence; or
249 (ix) a facility or program that provides:
250 (A) adult day care;
251 (B) day treatment;
252 (C) outpatient treatment;
253 (D) domestic violence treatment;
254 (E) child-placing services;
255 (F) social detoxification; or
256