Rep. Norm Thurston — Voting Record

Bill

Number

S.B. 82 Third Substitute (2016GS)

Sponsor

Sen. Harper, W.

Final action

Governor Signed 3/23/2016

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• amends the name of the Child Abuse Advisory Council to the Child Welfare Improvement Council;
• requires child welfare caseworkers within the Division of Child and Family Services (the division) to use evidence-informed or evidence-based safety and risk assessments to guide decisions concerning a child throughout a child protection investigation or proceeding;
• requires a juvenile court to consider the division's safety and risk assessments to determine whether a child should be removed from the custody of the child's parent or guardian;
• modifies the division's requirements for completing background checks before placing a child in emergency placement;
• requires the division, through contract with the Department of Health, to establish and operate a psychotropic medication oversight pilot program for children in foster care to ensure that foster children are being prescribed psychotropic medication consistent with their needs;
• provides for sunset review of the psychotropic medication oversight pilot program before it is repealed July 1, 2019;
• modifies the Utah Criminal Code regarding the offenses of human trafficking and human trafficking of a child;
• provides that a juvenile court may order another planned permanent living arrangement for a minor 16 years old or older under certain circumstances; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

CHILD WELFARE MODIFICATIONS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Wayne A. Harper
House Sponsor: 
Edward H. Redd
LONG TITLE
General Description:
This bill amends and enacts provisions concerning child and family services.
Highlighted Provisions:
This bill:
▸ amends the name of the Child Abuse Advisory Council to the Child Welfare
Improvement Council;
▸ requires child welfare caseworkers within the Division of Child and Family
Services (the division) to use evidence-informed or evidence-based safety and risk
assessments to guide decisions concerning a child throughout a child protection
investigation or proceeding;
▸ requires a juvenile court to consider the division's safety and risk assessments to
determine whether a child should be removed from the custody of the child's parent
or guardian;
▸ modifies the division's requirements for completing background checks before
placing a child in emergency placement;
▸ requires the division, through contract with the Department of Health, to establish
and operate a psychotropic medication oversight pilot program for children in foster
care to ensure that foster children are being prescribed psychotropic medication
consistent with their needs;
▸ provides for sunset review of the psychotropic medication oversight pilot program
before it is repealed July 1, 2019;
▸ modifies the Utah Criminal Code regarding the offenses of human trafficking and
human trafficking of a child;
▸ provides that a juvenile court may order another planned permanent living
arrangement for a minor 16 years old or older under certain circumstances; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
62A-4a-117
, as last amended by Laws of Utah 2012, Chapter 242
62A-4a-209
, as last amended by Laws of Utah 2015, Chapters 142 and 255
62A-4a-302
, as last amended by Laws of Utah 2008, Chapter 299
62A-4a-311
, as last amended by Laws of Utah 2010, Chapters 278 and 286
63I-1-262
, as last amended by Laws of Utah 2014, Chapter 226
76-5-308
, as last amended by Laws of Utah 2013, Chapter 196
76-5-308.5
, as enacted by Laws of Utah 2015, Chapter 160
78A-6-302
, as last amended by Laws of Utah 2015, Chapter 274
78A-6-312
, as last amended by Laws of Utah 2015, Chapters 274 and 322
78A-6-314
, as last amended by Laws of Utah 2015, Chapter 322
ENACTS:
62A-4a-203.1
, Utah Code Annotated 1953
62A-4a-213
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
62A-4a-117
 is amended to read:
62A-4a-117.
Performance monitoring system -- Annual report.
(1) As used in this section:
(a) "[
Committee
] 
Council
" means the [
state qualitative improvement committee,
]
Child Welfare Improvement Council
 established [
by the division to provide community and
professional input on the performance of the division
] 
under Section 
62A-4a-311
.
(b) "Performance indicators" means actual performance in a program, activity, or other
function for which there is a performance standard.
(c) (i) "Performance standards" means the targeted or expected level of performance of
each area in the child welfare system, including:
(A) child protection services;
(B) adoption;
(C) foster care; and
(D) other substitute care.
(ii) "Performance standards" includes the performance goals and measures in effect in
2008 that the division was subject to under federal court oversight, as amended pursuant to
Subsection (2), including:
(A) the qualitative case review; and
(B) the case process review.
(2) (a) The division may not amend the performance standards unless the amendment
is:
(i) necessary and proper for the effective administration of the division; or
(ii) necessary to comply with, or implement changes in, the law.
(b) Before amending the performance standards, the division shall provide written
notice of the proposed amendment to the [
committee
] 
council
.
(c) The notice described in Subsection (2)(b) shall include:
(i) the proposed amendment;
(ii) a summary of the reason for the proposed amendment; and
(iii) the proposed effective date of the amendment.
(d) Within 45 days after the day on which the division provides the notice described in
Subsection (2)(b) to the [
committee, the committee
] 
council, the council
 shall provide to the
division written comments on the proposed amendment.
(e) The division may not implement a proposed amendment to the performance
standards until the earlier of:
(i) seven days after the day on which the division receives the written comments
regarding the proposed change described in Subsection (2)(d); or
(ii) 52 days after the day on which the division provides the notice described in
Subsection (2)(b) to the [
committee
] 
council
.
(f) The division shall:
(i) give full, fair, and good faith consideration to all comments and objections received
from the [
committee
] 
council
;
(ii) notify the [
committee
] 
council
 in writing of:
(A) the division's decision regarding the proposed amendment; and
(B) the reasons that support the decision;
(iii) include complete information on all amendments to the performance standards in
the report described in Subsection (4); and
(iv) post the changes on the division's website.
(3) The division shall maintain a performance monitoring system to regularly:
(a) collect information on performance indicators; and
(b) compare performance indicators to performance standards.
(4) Before January 1 each year the director shall submit a written report to the Child
Welfare Legislative Oversight Panel and the Social Services Appropriations Subcommittee that
includes:
(a) a comparison between the performance indicators for the prior fiscal year and the
performance standards;
(b) for each performance indicator that does not meet the performance standard:
(i) the reason the standard was not met;
(ii) the measures that need to be taken to meet the standard; and
(iii) the division's plan to comply with the standard for the current fiscal year;
(c) data on the extent to which new and experienced division employees have received
training pursuant to statute and division policy; and
(d) an analysis of the use and efficacy of in-home services, both before and after
removal of a child from the child's home.
Section 2. Section 
62A-4a-203.1
 is enacted to read:
 62A-4a-203.1.
Safety and risk assessments.
(1) Child welfare caseworkers within the division shall use evidence-informed or
evidence-based safety and risk assessments to guide decisions concerning a child throughout a
child protection investigation or proceeding.
(2) As part of the evidence-informed or evidence-based safety and risk assessments, the
division shall assess at least the following:
(a) threat to a child's safety;
(b) protective capabilities of a parent or guardian, including the parent or guardian's
readiness, willingness, and ability to plan for the child's safety;
(c) a child's particular vulnerabilities;
(d) interventions required to protect a child; and
(e) likelihood of future harm to a child.
Section 3. Section 
62A-4a-209
 is amended to read:
62A-4a-209.
Emergency placement.
(1) As used in this section:
(a) "Friend" means the same as that term is defined in Subsection 
78A-6-307
(1)(a).
(b) "Nonrelative" means an individual, other than a noncustodial parent or a relative.
(c) "Relative" means the same as that term is defined in Subsection 
78A-6-307
(1)(c).
(2) The division may use an emergency placement under Subsection
62A-4a-202.1
(4)(b)(ii) when:
(a) the case worker has made the determination that:
(i) the child's home is unsafe;
(ii) removal is necessary under the provisions of Section 
62A-4a-202.1
; and
(iii) the child's custodial parent or guardian will agree to not remove the child from the
home of the person that serves as the placement and not have any contact with the child until
after the shelter hearing required by Section 
78A-6-306
;
(b) a person, with preference being given in accordance with Subsection (4), can be
identified who has the ability and is willing to provide care for the child who would otherwise
be placed in shelter care, including:
(i) taking the child to medical, mental health, dental, and educational appointments at
the request of the division; and
(ii) making the child available to division services and the guardian ad litem; and
(c) the person described in Subsection (2)(b) agrees to care for the child on an
emergency basis under the following conditions:
(i) the person meets the criteria for an emergency placement under Subsection (3);
(ii) the person agrees to not allow the custodial parent or guardian to have any contact
with the child until after the shelter hearing unless authorized by the division in writing;
(iii) the person agrees to contact law enforcement and the division if the custodial
parent or guardian attempts to make unauthorized contact with the child;
(iv) the person agrees to allow the division and the child's guardian ad litem to have
access to the child;
(v) the person has been informed and understands that the division may continue to
search for other possible placements for long-term care, if needed;
(vi) the person is willing to assist the custodial parent or guardian in reunification
efforts at the request of the division, and to follow all court orders; and
(vii) the child is comfortable with the person.
(3) Except as otherwise provided in Subsection (5), before the division places a child
in an emergency placement, the division:
(a) may request the name of a reference and may contact the reference to determine the
answer to the following questions:
(i) would the person identified as a reference place a child in the home of the
emergency placement; and
(ii) are there any other relatives or friends to consider as a possible emergency or
long-term placement for the child;
(b) shall have the custodial parent or guardian sign an emergency placement agreement
form during the investigation;
(c) (i) if the emergency placement will be with a relative of the child, shall comply with
the background check provisions described in Subsection (7); or
(ii) if the emergency placement will be with a person other than a noncustodial parent
or a relative, shall comply with the [
criminal
] background check provisions described in
[
Section 
78A-6-308
] 
Subsection (8)
 for adults living in the household where the child will be
placed;
(d) shall complete a limited home inspection of the home where the emergency
placement is made; and
(e) shall have the emergency placement approved by a family service specialist.
(4) (a) The following order of preference shall be applied when determining the person
with whom a child will be placed in an emergency placement described in this section,
provided that the person is willing, and has the ability, to care for the child:
(i) a noncustodial parent of the child in accordance with Section 
78A-6-307
;
(ii) a relative of the child;
(iii) subject to Subsection (4)(b), a friend designated by the custodial parent or
guardian of the child; and
(iv) a shelter facility, former foster placement, or other foster placement designated by
the division.
(b) Unless the division agrees otherwise, the custodial parent or guardian described in
Subsection (4)(a)(iii) may designate up to two friends as a potential emergency placement.
(5) (a) The division may, pending the outcome of the investigation described in
Subsections (5)(b) and (c), place a child in emergency placement with the child's noncustodial
parent if, based on a limited investigation, prior to making the emergency placement, the
division:
(i) determines that the noncustodial parent has regular, unsupervised visitation with the
child that is not prohibited by law or court order;
(ii) determines that there is not reason to believe that the child's health or safety will be
endangered during the emergency placement; and
(iii) has the custodial parent or guardian sign an emergency placement agreement.
(b) Either before or after making an emergency placement with the noncustodial parent
of the child, the division may conduct the investigation described in Subsection (3)(a) in
relation to the noncustodial parent.
(c) Before, or within one day, excluding weekends and holidays, after a child is placed
in an emergency placement with the noncustodial parent of the child, the division shall conduct
a limited:
(i) background check of the noncustodial parent, pursuant to Subsection (7); and
(ii) inspection of the home where the emergency placement is made.
(6) After an emergency placement, the division caseworker must:
(a) respond to the emergency placement's calls within one hour if the custodial parents
or guardians attempt to make unauthorized contact with the child or attempt to remove the
child;
(b) complete all removal paperwork, including the notice provided to the custodial
parents and guardians under Section 
78A-6-306
;
(c) contact the attorney general to schedule a shelter hearing;
(d) complete the placement procedures required in Section 
78A-6-307
; and
(e) continue to search for other relatives as a possible long-term placement, if needed.
(7) (a) The background check described in Subsection (3)(c)(i) shall include
completion of
:
(i) [
completion of a nonfingerprint-based
] 
a name-based
, Utah Bureau of Criminal
Identification background check; and
(ii) a [
completed
] search of the Management Information System described in Section
62A-4a-1003
.
(b) The division shall determine whether a person passes the background check
described in this Subsection (7) pursuant to the provisions of Subsection 
62A-2-120
(13).
(c) Notwithstanding Subsection (7)(b), the division may not place a child with an
individual who is prohibited by court order from having access to that child.
(8) (a) The background check described in Subsection (3)(c)(ii) shall include
completion of:
(i) a name-based, Utah Bureau of Criminal Identification background check;
(ii) a federal name-based criminal background check; and
(iii) a search of the Management Information System described in Section
62A-4a-1003
.
(b) The division shall determine whether a person passes the background checks
described in this Subsection (8) pursuant to the provisions of Subsection 
62A-2-120
.
(c) If the division denies placement of a child as a result of a name-based criminal
background check described in Subsection (8)(a), and the person contests that denial, the
person shall submit a complete set of fingerprints with written permission to the Utah Bureau
of Criminal Identification for submission to the Federal Bureau of Investigation for a
fingerprint-based criminal background check.
(d) (i) Within 15 calendar days of the name-based background checks, the division
shall require a person to provide a complete set of fingerprints with written permission to the
Utah Bureau of Criminal Identification for submission to the Federal Bureau of Investigation
for a fingerprint-based criminal background check.
(ii) If a person fails to provide the fingerprints and written permission described in
Subsection (8)(d)(i), the child shall immediately be removed from the home.
Section 4. Section 
62A-4a-213
 is enacted to read:
 62A-4a-213.
Psychotropic medication oversight pilot program.
(1) As used in this section, "psychotropic medication" means medication prescribed to
affect or alter thought processes, mood, or behavior, including antipsychotic, antidepressant,
anxiolytic, or behavior medication.
(2) The division shall, through contract with the Department of Health, establish and
operate a psychotropic medication oversight pilot program for children in foster care to ensure
that foster children are being prescribed psychotropic medication consistent with their needs.
(3) The division shall establish an oversight team to manage the psychotropic
medication oversight program, composed of at least the following individuals:
(a) an "advanced practice registered nurse," as defined in Subsection 
58-31b-102
(13),
employed by the Department of Health; and
(b) a child psychiatrist.
(4) The oversight team shall monitor foster children:
(a) six years old or younger who are being prescribed one or more psychotropic
medications; and
(b) seven years old or older who are being prescribed two or more psychotropic
medications.
(5) The oversight team shall, upon request, be given information or records related to
the foster child's health care history, including psychotropic medication history and mental and
behavioral health history, from:
(a) the foster child's current or past caseworker;
(b) the foster child; or
 (c) the foster child's:
(i) current or past health care provider;
(ii) natural parents; or
(iii) foster parents.
(6) The oversight team may review and monitor the following information about a
foster child:
(a) the foster child's history;
(b) the foster child's health care, including psychotropic medication history and mental
or behavioral health history;
(c) whether there are less invasive treatment options available to meet the foster child's
needs;
(d) the dosage or dosage range and appropriateness of the foster child's psychotropic
medication;
(e) the short-term or long-term risks associated with the use of the foster child's
psychotropic medication; or
(f) the reported benefits of the foster child's psychotropic medication.
(7) (a) The oversight team may make recommendations to the foster child's health care
providers concerning the foster child's psychotropic medication or the foster child's mental or
behavioral health.
(b) The oversight team shall provide the recommendations made in Subsection (7)(a)
to the foster child's parent or guardian after discussing the recommendations with the foster
child's current health care providers.
(8) The division may adopt administrative rules in accordance with Title 63G, Chapter
3, Utah Administrative Rulemaking Act, necessary to administer this section.
Section 5. Section 
62A-4a-302
 is amended to read:
62A-4a-302.
Definitions.
As used in this part, "council" means the [
Child Abuse Advisory
] 
Child Welfare
Improvement
 Council established under Section 
62A-4a-311
.
Section 6. Section 
62A-4a-311
 is amended to read:
62A-4a-311.
Child Welfare Improvement Council -- Creation -- Membership --
Expenses.
(1) (a) There is established the [
Child Abuse Advisory
] 
Child Welfare Improvement
Council composed of no more than 25 members who are appointed by the division.
(b) Except as required by Subsection (1)(c), as terms of current council members
expire, the division shall appoint each new member or reappointed member to a four-year term.
(c) Notwithstanding the requirements of Subsection (1)(b), the division shall, at the
time of appointment or reappointment, adjust the length of terms to ensure that the terms of
council members are staggered so that approximately half of the council is appointed every two
years.
(d) The council shall have geographic, economic, gender, cultural, and philosophical
diversity.
(e) When a vacancy occurs in the membership for any reason, the replacement shall be
appointed for the unexpired term.
(2) The council shall elect a chairperson from its membership at least biannually.
(3) A member may not receive compensation or benefits for the member's service, but
may receive per diem and travel expenses in accordance with:
(a) Section 
63A-3-106
;
(b) Section 
63A-3-107
; and
(c) rules made by the Division of Finance pursuant to Sections 
63A-3-106
 and
63A-3-107
.
(4) 
(a)
 The council shall hold a public meeting quarterly.
(b)
 Within budgetary constraints, meetings may also be held on the call of the chair, or
of a majority of the members.
(c)
 A majority of the members currently appointed to the council constitute a quorum
at any meeting and the action of the majority of the members present shall be the action of the
council.
(5) The council shall:
(a) advise the division on matters relating to abuse and neglect; [
and
]
(b) recommend to the division how funds contained in the Children's Account should
be allocated
; and
(c) provide community and professional input on the performance of the division
.
Section 7. Section 
63I-1-262
 is amended to read:
63I-1-262.
Repeal dates, Title 62A.
[
(1) Section 
62A-2-120.5
, Pilot program for expedited background check of a qualified
human services applicant, is repealed July 1, 2017.
]
(1) Section 
62A-4a-213
 is repealed July 1, 2019.
(2) Subsection 
62A-15-1101
(5) is repealed July 1, 2018.
Section 8. Section 
76-5-308
 is amended to read:
76-5-308.
Human trafficking -- Human smuggling.
(1) An actor commits human trafficking for forced labor or forced sexual exploitation
if the actor recruits, harbors, transports, [
or
] obtains
, patronizes, or solicits
 a person through the
use of force, fraud, or coercion by means of:
(a) threatening serious harm to, or physical restraint against, that person or a third
person;
(b) destroying, concealing, removing, confiscating, or possessing any passport,
immigration document, or other government identification document;
(c) abusing or threatening abuse of the law or legal process against the person or a third
person;
(d) using a condition of a person being a debtor due to a pledge of the debtor's personal
services or the personal services of a person under the control of the debtor as a security for
debt where the reasonable value of the services is not applied toward the liquidation of the debt
or the length and nature of those services are not respectively limited and defined; or
(e) using a condition of servitude by means of any scheme, plan, or pattern intended to
cause a person to believe that if the person did not enter into or continue in a condition of
servitude, that person or a third person would suffer serious harm or physical restraint, or
would be threatened with abuse of legal process.
(2) (a) Human trafficking for forced labor includes forced labor in industrial facilities,
sweatshops, households, agricultural enterprises, and any other workplace.
(b) Human trafficking for forced sexual exploitation includes all forms of forced
commercial sexual activity, including forced sexually explicit performance, forced prostitution,
forced participation in the production of pornography, forced performance in strip clubs, and
forced exotic dancing or display.
(3) A person commits human smuggling by transporting or procuring the transportation
for one or more persons for a commercial purpose, knowing or having reason to know that the
person or persons transported or to be transported are not:
(a) citizens of the United States;
(b) permanent resident aliens; or
(c) otherwise lawfully in this state or entitled to be in this state.
Section 9. Section 
76-5-308.5
 is amended to read:
76-5-308.5.
Human trafficking of a child -- Penalties.
(1) "Commercial sexual activity with a child" means any sexual act with a child, on
account of which anything of value is given to or received by any person.
(2) An actor commits human trafficking of a child if the actor recruits, harbors,
transports, [
or
] obtains
, patronizes, or solicits
 a child for sexual exploitation or forced labor.
(3) (a) Human trafficking of a child for forced labor includes labor in industrial
facilities, sweatshops, households, agricultural enterprises, or any other workplace.
(b) Human trafficking of a child for sexual exploitation includes all forms of
commercial sexual activity with a child, including sexually explicit performance, prostitution,
participation in the production of pornography, performance in a strip club, and exotic dancing
or display.
(4) Human trafficking of a child in violation of this section is a first degree felony.
Section 10. Section 
78A-6-302
 is amended to read:
78A-6-302.
Court-ordered protective custody of a child following petition filing --
Grounds.
(1) 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
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 the provisions of Subsections 
78A-6-105
(27)(d) and 
78A-6-117
(2)(n)
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
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) (a) For purposes of Subsection (1)(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)(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)(c) or Subsection (2)(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) (a) For purposes of Subsection (1), 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
guardian, as soon as practicable before the shelter hearing described in Section 
78A-6-306
.
[
(3)
] 
(4)
 In the absence of one of the factors described in Subsection (1), 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
.
[
(4)
] 
(5)
 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.
[
(5)
] 
(6)
 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
.
[
(6)
] 
(7)
 (a) Except as provided in Subsection [
(6)
] 
(7)
(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 [
(6)
] 
(7)
(a), a court or the Division of Child and
Family Services may remove a child under conditions that would otherwise be prohibited under
Subsection [
(6)
] 
(7)
(a) if failure to take an action described under Subsection [
(6)
] 
(7)
(a) would
present a serious, imminent risk to the child's physical safety or the physical safety of others.
Section 11. Section 
78A-6-312
 is amended to read:
78A-6-312.
Dispositional hearing -- Reunification services -- Exceptions.
(1) The court may:
(a) make any of the dispositions described in Section 
78A-6-117
;
(b) place the minor in the custody or guardianship of any:
(i) individual; or
(ii) public or private entity or agency; or
(c) order:
(i) protective supervision;
(ii) family preservation;
(iii) subject to Subsections (12)(b), 
78A-6-105
(27)(d), and 
78A-6-117
(2)(n) and
Section 
78A-6-301.5
, medical or mental health treatment; or
(iv) other services.
(2) Whenever the court orders continued removal at the dispositional hearing, and that
the minor remain in the custody of the division, the court shall first:
(a) establish a primary permanency plan for the minor; and
(b) determine whether, in view of the primary permanency plan, reunification services
are appropriate for the minor and the minor's family, pursuant to Subsections (20) through (22).
(3) Subject to Subsections (6) and (7), if the court determines that reunification
services are appropriate for the minor and the minor's family, the court shall provide for
reasonable parent-time with the parent or parents from whose custody the minor was removed,
unless parent-time is not in the best interest of the minor.
(4) In cases where obvious sexual abuse, sexual exploitation, abandonment, severe
abuse, or severe neglect are involved, neither the division nor the court has any duty to make
"reasonable efforts" or to, in any other way, attempt to provide reunification services, or to
attempt to rehabilitate the offending parent or parents.
(5) In all cases, the minor's health, safety, and welfare shall be the court's paramount
concern in determining whether reasonable efforts to reunify should be made.
(6) For purposes of Subsection (3), parent-time is in the best interests of a minor unless
the court makes a finding that it is necessary to deny parent-time in order to:
(a) protect the physical safety of the minor;
(b) protect the life of the minor; or
(c) prevent the minor from being traumatized by contact with the parent due to the
minor's fear of the parent in light of the nature of the alleged abuse or neglect.
(7) Notwithstanding Subsection (3), a court may not deny parent-time based solely on a
parent's failure to:
(a) prove that the parent has not used legal or illegal substances; or
(b) comply with an aspect of the child and family plan that is ordered by the court.
(8) (a) In addition to the primary permanency plan, the court shall establish a
concurrent permanency plan that shall include:
(i) a representative list of the conditions under which the primary permanency plan will
be abandoned in favor of the concurrent permanency plan; and
(ii) an explanation of the effect of abandoning or modifying the primary permanency
plan.
(b) In determining the primary permanency plan and concurrent permanency plan, the
court shall consider:
(i) the preference for kinship placement over nonkinship placement;
(ii) the potential for a guardianship placement if the parent-child relationship is legally
terminated and no appropriate adoption placement is available; and
(iii) the use of an individualized permanency plan, only as a last resort.
(9) A permanency hearing shall be conducted in accordance with Subsection
78A-6-314
(1)(b) within 30 days after the day on which the dispositional hearing ends if
something other than reunification is initially established as a minor's primary permanency
plan.
(10) (a) The court may amend a minor's primary permanency plan before the
establishment of a final permanency plan under Section 
78A-6-314
.
(b) The court is not limited to the terms of the concurrent permanency plan in the event
that the primary permanency plan is abandoned.
(c) If, at any time, the court determines that reunification is no longer a minor's primary
permanency plan, the court shall conduct a permanency hearing in accordance with Section
78A-6-314
 on or before the earlier of:
(i) 30 days after the day on which the court makes the determination described in this
Subsection (10)(c); or
(ii) the day on which the provision of reunification services, described in Section
78A-6-314
, ends.
(11) (a) If the court determines that reunification services are appropriate, it shall order
that the division make reasonable efforts to provide services to the minor and the minor's
parent for the purpose of facilitating reunification of the family, for a specified period of time.
(b) In providing the services described in Subsection (11)(a), the minor's health, safety,
and welfare shall be the division's paramount concern, and the court shall so order.
(12) (a) The court shall:
(i) determine whether the services offered or provided by the division under the child
and family plan constitute "reasonable efforts" on the part of the division;
(ii) determine and define the responsibilities of the parent under the child and family
plan in accordance with Subsection 
62A-4a-205
(6)(e); and
(iii) identify verbally on the record, or in a written document provided to the parties,
the responsibilities described in Subsection (12)(a)(ii), for the purpose of assisting in any future
determination regarding the provision of reasonable efforts, in accordance with state and
federal law.
(b) If the parent is in a substance abuse treatment program, other than a certified drug
court program:
(i) the court may order the parent to submit to supplementary drug or alcohol testing in
addition to the testing recommended by the parent's substance abuse program based on a
finding of reasonable suspicion that the parent is abusing drugs or alcohol; and
(ii) the court may order the parent to provide the results of drug or alcohol testing
recommended by the substance abuse program to the court or division.
(13) (a) The time period for reunification services may not exceed 12 months from the
date that the minor was initially removed from the minor's home, unless the time period is
extended under Subsection 
78A-6-314
[
(8)
]
(7)
.
(b) Nothing in this section may be construed to entitle any parent to an entire 12
months of reunification services.
(14) (a) If reunification services are ordered, the court may terminate those services at
any time.
(b) If, at any time, continuation of reasonable efforts to reunify a minor is determined
to be inconsistent with the final permanency plan for the minor established pursuant to Section
78A-6-314
, then measures shall be taken, in a timely manner, to:
(i) place the minor in accordance with the permanency plan; and
(ii) complete whatever steps are necessary to finalize the permanent placement of the
minor.
(15) Any physical custody of the minor by the parent or a relative during the period
described in Subsections (11) through (14) does not interrupt the running of the period.
(16) (a) If reunification services are ordered, a permanency hearing shall be conducted
by the court in accordance with Section 
78A-6-314
 at the expiration of the time period for
reunification services.
(b) The permanency hearing shall be held no later than 12 months after the original
removal of the minor.
(c) If reunification services are not ordered, a permanency hearing shall be conducted
within 30 days, in accordance with Section 
78A-6-314
.
(17) With regard to a minor in the custody of the division whose parent or parents are
ordered to receive reunification services but who have abandoned that minor for a period of six
months from the date that reunification services were ordered:
(a) the court shall terminate reunification services; and
(b) the division shall petition the court for termination of parental rights.
(18) When a court conducts a permanency hearing for a minor under Section
78A-6-314
, the court shall attempt to keep the minor's sibling group together if keeping the
sibling group together is:
(a) practicable; and
(b) in accordance with the best interest of the minor.
(19) (a) Because of the state's interest in and responsibility to protect and provide
permanency for minors who are abused, neglected, or dependent, the Legislature finds that a
parent's interest in receiving reunification services is limited.
(b) The court may determine that:
(i) efforts to reunify a minor with the minor's family are not reasonable or appropriate,
based on the individual circumstances; and
(ii) reunification services should not be provided.
(c) In determining "reasonable efforts" to be made with respect to a minor, and in
making "reasonable efforts," the minor's health, safety, and welfare shall be the paramount
concern.
(20) There is a presumption that reunification services should not be provided to a
parent if the court finds, by clear and convincing evidence, that any of the following
circumstances exist:
(a) the whereabouts of the parents are unknown, based upon a verified affidavit
indicating that a reasonably diligent search has failed to locate the parent;
(b) subject to Subsection (21)(a), the parent is suffering from a mental illness of such
magnitude that it renders the parent incapable of utilizing reunification services;
(c) the minor was previously adjudicated as an abused child due to physical abuse,
sexual abuse, or sexual exploitation, and following the adjudication the minor:
(i) was removed from the custody of the minor's parent;
(ii) was subsequently returned to the custody of the parent; and
(iii) is being removed due to additional physical abuse, sexual abuse, or sexual
exploitation;
(d) the parent:
(i) caused the death of another minor through abuse or neglect;
(ii) committed, aided, abetted, attempted, conspired, or solicited to commit:
(A) murder or manslaughter of a child; or
(B) child abuse homicide;
(iii) committed sexual abuse against the child;
(iv) is a registered sex offender or required to register as a sex offender; or
(v) (A) intentionally, knowingly, or recklessly causes the death of another parent of the
child;
(B) 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
(C) is being prosecuted for or has been convicted of intentionally, knowingly, or
recklessly causing the death of another parent of the child;
(e) the minor suffered severe abuse by the parent or by any person known by the
parent, if the parent knew or reasonably should have known that the person was abusing the
minor;
(f) the minor is adjudicated an abused child as a result of severe abuse by the parent,
and the court finds that it would not benefit the minor to pursue reunification services with the
offending parent;
(g) the parent's rights are terminated with regard to any other minor;
(h) the minor was removed from the minor's home on at least two previous occasions
and reunification services were offered or provided to the family at those times;
(i) the parent has abandoned the minor for a period of six months or longer;
(j) the parent permitted the child to reside, on a permanent or temporary basis, at a
location where the parent knew or should have known that a clandestine laboratory operation
was located;
(k) except as provided in Subsection (21)(b), with respect to a parent who is the child's
birth mother, the child has fetal alcohol syndrome, fetal alcohol spectrum disorder, or was
exposed to an illegal or prescription drug that was abused by the child's mother while the child
was in utero, if the child was taken into division custody for that reason, unless the mother
agrees to enroll in, is currently enrolled in, or has recently and successfully completed a
substance abuse treatment program approved by the department; or
(l) any other circumstance that the court determines should preclude reunification
efforts or services.
(21) (a) The finding under Subsection (20)(b) shall be based on competent evidence
from at least two medical or mental health professionals, who are not associates, establishing
that, even with the provision of services, the parent is not likely to be capable of adequately
caring for the minor within 12 months after the day on which the court finding is made.
(b) A judge may disregard the provisions of Subsection (20)(k) if the court finds, under
the circumstances of the case, that the substance abuse treatment described in Subsection
(20)(k) is not warranted.
(22) In determining whether reunification services are appropriate, the court shall take
into consideration:
(a) failure of the parent to respond to previous services or comply with a previous child
and family plan;
(b) the fact that the minor was abused while the parent was under the influence of
drugs or alcohol;
(c) any history of violent behavior directed at the child or an immediate family
member;
(d) whether a parent continues to live with an individual who abused the minor;
(e) any patterns of the parent's behavior that have exposed the minor to repeated abuse;
(f) testimony by a competent professional that the parent's behavior is unlikely to be
successful; and
(g) whether the parent has expressed an interest in reunification with the minor.
(23) (a) If reunification services are not ordered pursuant to Subsections (19) through
(21), and the whereabouts of a parent become known within six months after the day on which
the out-of-home placement of the minor is made, the court may order the division to provide
reunification services.
(b) The time limits described in Subsections (2) through (18) are not tolled by the
parent's absence.
(24) (a) If a parent is incarcerated or institutionalized, the court shall order reasonable
services unless it determines that those services would be detrimental to the minor.
(b) In making the determination described in Subsection (24)(a), the court shall
consider:
(i) the age of the minor;
(ii) the degree of parent-child bonding;
(iii) the length of the sentence;
(iv) the nature of the treatment;
(v) the nature of the crime or illness;
(vi) the degree of detriment to the minor if services are not offered;
(vii) for a minor 10 years [
of age
] 
old
 or older, the minor's attitude toward the
implementation of family reunification services; and
(viii) any other appropriate factors.
(c) Reunification services for an incarcerated parent are subject to the time limitations
imposed in Subsections (2) through (18).
(d) Reunification services for an institutionalized parent are subject to the time
limitations imposed in Subsections (2) through (18), unless the court determines that continued
reunification services would be in the minor's best interest.
(25) If, pursuant to Subsections (20)(b) through (l), the court does not order
reunification services, a permanency hearing shall be conducted within 30 days, in accordance
with Section 
78A-6-314
.
Section 12. Section 
78A-6-314
 is amended to read:
78A-6-314.
Permanency hearing -- Final plan -- Petition for termination of
parental rights filed -- Hearing on termination of parental rights.
(1) (a) When reunification services have been ordered in accordance with Section
78A-6-312
, with regard to a minor who is in the custody of the Division of Child and Family
Services, a permanency hearing shall be held by the court no later than 12 months after the day
on which the minor was initially removed from the minor's home.
(b) If reunification services were not ordered at the dispositional hearing, a permanency
hearing shall be held within 30 days after the day on which the dispositional hearing ends.
(2) (a) If reunification services were ordered by the court in accordance with Section
78A-6-312
, the court shall, at the permanency hearing, determine, consistent with Subsection
(3), whether the minor may safely be returned to the custody of the minor's parent.
(b) If the court finds, by a preponderance of the evidence, that return of the minor to
the minor's parent would create a substantial risk of detriment to the minor's physical or
emotional well-being, the minor may not be returned to the custody of the minor's parent.
(c) Prima facie evidence that return of the minor to a parent or guardian would create a
substantial risk of detriment to the minor is established if:
(i) the parent or guardian fails to:
(A) participate in a court approved child and family plan;
(B) comply with a court approved child and family plan in whole or in part; or
(C) meet the goals of a court approved child and family plan; or
(ii) the child's natural parent:
(A) intentionally, knowingly, or recklessly causes the death of another parent of the
child;
(B) 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
(C) is being prosecuted for or has been convicted of intentionally, knowingly, or
recklessly causing the death of another parent of the child.
(3) In making a determination under Subsection (2)(a), the court shall review and
consider:
(a) the report prepared by the Division of Child and Family Services;
(b) any admissible evidence offered by the minor's guardian ad litem;
(c) any report submitted by the division under Subsection 
78A-6-315
(3)(a)(i);
(d) any evidence regarding the efforts or progress demonstrated by the parent; and
(e) the extent to which the parent cooperated and utilized the services provided.
(4) With regard to a case where reunification services were ordered by the court, if a
minor is not returned to the minor's parent or guardian at the permanency hearing, the court
shall, unless the time for the provision of reunification services is extended under Subsection
(8):
(a) order termination of reunification services to the parent;
(b) make a final determination regarding whether termination of parental rights,
adoption, or permanent custody and guardianship is the most appropriate final plan for the
minor, taking into account the minor's primary permanency plan established by the court
pursuant to Section 
78A-6-312
; and
(c) establish a concurrent permanency plan that identifies the second most appropriate
final plan for the minor, if appropriate.
[
(5) If the Division of Child and Family Services documents to the court that there is a
compelling reason that adoption, reunification, guardianship, and a placement described in
Subsection 
78A-6-306
(6)(e) are not in the minor's best interest, the court may order another
planned permanent living arrangement, in accordance with federal law.
]
[
(6) If the minor clearly desires contact with the parent, the court shall take the minor's
desire into consideration in determining the final plan.
]
(5) The court may order another planned permanent living arrangement for a minor 16
years old or older upon entering the following findings:
(a) the Division of Child and Family Services has documented intensive, ongoing, and
unsuccessful efforts to reunify the minor with the minor's parent or parents, or to secure a
placement for the minor with a guardian, an adoptive parent, or an individual described in
Subsection 
78A-6-306
(6)(e);
(b) the Division of Child and Family Services has demonstrated that the division has
made efforts to normalize the life of the minor while in the division's custody, in accordance
with Sections 
62A-4a-210
 through 
62A-4a-212
;
(c) the minor prefers another planned permanent living arrangement; and
(d) there is a compelling reason why reunification or a placement described in
Subsection (5)(a) is not in the minor's best interest.
[
(7)
] 
(6)
 Except as provided in Subsection [
(8)
] 
(7)
, the court may not extend
reunification services beyond 12 months after the day on which the minor was initially
removed from the minor's home, in accordance with the provisions of Section 
78A-6-312
.
[
(8)
] 
(7)
 (a) Subject to Subsection [
(8)
] 
(7)
(b), the court may extend reunification
services for no more than 90 days if the court finds, beyond a preponderance of the evidence,
that:
(i) there has been substantial compliance with the child and family plan;
(ii) reunification is probable within that 90-day period; and
(iii) the extension is in the best interest of the minor.
(b) (i) Except as provided in Subsection [
(8)
] 
(7)
(c), the court may not extend any
reunification services beyond 15 months after the day on which the minor was initially
removed from the minor's home.
(ii) Delay or failure of a parent to establish paternity or seek custody does not provide a
basis for the court to extend services for that parent beyond the 12-month period described in
Subsection [
(7)
] 
(6)
.
(c) In accordance with Subsection [
(8)
] 
(7)
(d), the court may extend reunification
services for one additional 90-day period, beyond the 90-day period described in Subsection
[
(8)
] 
(7)
(a), if:
(i) the court finds, by clear and convincing evidence, that:
(A) the parent has substantially complied with the child and family plan;
(B) it is likely that reunification will occur within the additional 90-day period; and
(C) the extension is in the best interest of the child;
(ii) the court specifies the facts upon which the findings described in Subsection [
(8)
]
(7)
(c)(i) are based; and
(iii) the court specifies the time period in which it is likely that reunification will occur.
(d) A court may not extend the time period for reunification services without
complying with the requirements of this Subsection [
(8)
] 
(7)
 before the extension.
(e) In determining whether to extend reunification services for a minor, a court shall
take into consideration the status of the minor siblings of the minor.
[
(9)
] 
(8)
 The court may, in its discretion:
(a) enter any additional order that it determines to be in the best interest of the minor,
so long as that order does not conflict with the requirements and provisions of Subsections (4)
through [
(8)
] 
(7)
; or
(b) order the division to provide protective supervision or other services to a minor and
the minor's family after the division's custody of a minor has been terminated.
[
(10)
] 
(9)
 If the final plan for the minor is to proceed toward termination of parental
rights, the petition for termination of parental rights shall be filed, and a pretrial held, within 45
calendar days after the permanency hearing.
[
(11)
] 
(10)
 (a) Any party to an action may, at any time, petition the court for an
expedited permanency hearing on the basis that continuation of reunification efforts are
inconsistent with the permanency needs of the minor.
(b) If the court so determines, it shall order, in accordance with federal law, that:
(i) the minor be placed in accordance with the permanency plan; and
(ii) whatever steps are necessary to finalize the permanent placement of the minor be
completed as quickly as possible.
[
(12)
] 
(11)
 Nothing in this section may be construed to:
(a) entitle any parent to reunification services for any specified period of time;
(b) limit a court's ability to terminate reunification services at any time prior to a
permanency hearing; or
(c) limit or prohibit the filing of a petition for termination of parental rights by any
party, or a hearing on termination of parental rights, at any time prior to a permanency hearing.
[
(13)
] 
(12)
 (a) Subject to Subsection [
(13)
] 
(12)
(b), if a petition for termination of
parental rights is filed prior to the date scheduled for a permanency hearing, the court may
consolidate the hearing on termination of parental rights with the permanency hearing.
(b) For purposes of Subsection [
(13)
] 
(12)
(a), if the court consolidates the hearing on
termination of parental rights with the permanency hearing:
(i) the court shall first make a finding regarding whether reasonable efforts have been
made by the Division of Child and Family Services to finalize the permanency plan for the
minor; and
(ii) any reunification services shall be terminated in accordance with the time lines
described in Section 
78A-6-312
.
(c) A decision on a petition for termination of parental rights shall be made within 18
months from the day on which the minor is removed from the minor's home.
[
(14)
] 
(13)
 If a court determines that a child will not be returned to a parent of the
child, the court shall consider appropriate placement options inside and outside of the state.