Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 73 Fourth Substitute (2021GS)

Sponsor

Rep. Watkins, C.

Final action

Governor Signed 3/11/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• 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.

Every vote on this bill

Bill text

DRUG TESTING AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Christine F. Watkins
Senate Sponsor: 
Wayne A. Harper
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
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
62A-4a-105
 is amended to read:
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
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
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:
(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
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.
(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
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
.
(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 
58-37-3.7
(2) or (3); or
(iii) (A) the individual's possession or use complies with Title 26, Chapter 61a, Utah
Medical Cannabis Act; and
(B) the individual reasonably complies with the directions of use and dosing guidelines
determined by the individual's qualified medical provider or through a consultation described
in Subsection 
26-61a-502
(4) or (5).
(c) In a child welfare proceeding, a parent's or guardian's use of cannabis or a cannabis
product is not abuse or neglect of a child under Section 
78A-6-105
 unless there is evidence
showing that:
(i) the child is harmed because of the child's inhalation or ingestion of cannabis, or
because of cannabis being introduced to the child's body in another manner; or
(ii) the child is at an unreasonable risk of harm because of chronic inhalation or
ingestion of cannabis or chronic introduction of cannabis to the child's body in another manner.
(d) Unless there is harm or an unreasonable risk of harm to the child as described in
Subsection (7)(c), in a child welfare proceeding a parent's or guardian's use of medical cannabis
or a cannabis product is not contrary to the best interests of a child if:
(i) for a medical cannabis cardholder after January 1, 2021, the parent's or guardian's
possession or use complies with Title 26, Chapter 61a, Utah Medical Cannabis Act, and there
is no evidence that the parent's or guardian's use of medical cannabis unreasonably deviates
from the directions of use and dosing guidelines determined by the parent's or guardian's
qualified medical provider or through a consultation described in Subsection 
26-61a-502
(4) or
(5); or
(ii) before January 1, 2021, the parent's or guardian's possession or use complies with
Subsection 
58-37-3.7
(2) or (3).
(e) Subsection (7)(c) does not prohibit a finding of abuse or neglect of a child under
Section 
78A-6-105
, and Subsection (7)(d) does not prohibit a finding that a parent's or
guardian's use of medical cannabis or a cannabis product is contrary to the best interests of a
child, if there is evidence showing a nexus between the parent's or guardian's use of cannabis or
a cannabis product and behavior that would separately constitute abuse or neglect of the child.
(8) If an individual, who is party to a proceeding under Part 3, Abuse, Neglect, and
Dependency Proceedings, is ordered by the juvenile court to submit to drug testing, or is
referred by the division or a guardian ad litem for drug testing, the individual may not be
ordered or referred for drug testing by means of a hair or fingernail test that is administered to
detect the presence of drugs.
Section 3. 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
(40), and 
78A-6-117
(2) and Section
78A-6-301.5
, medical or mental health treatment;
(iv) sibling visitation; or
(v) 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 (21) through (23).
(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, the court
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 use disorder 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
accordance with Subsection 
78A-6-115
(8),
 in addition to the testing recommended by the
parent's substance use disorder 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 use disorder 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
(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) When a child is under the custody of the division and has been separated from a
sibling due to foster care or adoptive placement, a court may order sibling visitation, subject to
the division obtaining consent from the sibling's legal guardian, according to the court's
determination of the best interests of the child for whom the hearing is held.
(20) (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.
(21) 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 (22)(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 (22)(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 use disorder treatment program approved by the department; or
(l) any other circumstance that the court determines should preclude reunification
efforts or services.
(22) (a) The finding under Subsection (21)(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 (21)(k) if the court finds, under
the circumstances of the case, that the substance use disorder treatment described in Subsection
(21)(k) is not warranted.
(23) 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.
(24) (a) If reunification services are not ordered pursuant to Subsections (20) through
(22), 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.
(25) (a) If a parent is incarcerated or institutionalized, the court shall order reasonable
services unless the court determines that those services would be detrimental to the minor.
(b) In making the determination described in Subsection (25)(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 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.
(26) If, pursuant to Subsections (21)(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
.