Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 204 First Substitute (2023GS)

Sponsor

Rep. Watkins, C.

Final action

Governor Signed 3/15/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• provides that a guardian ad litem may not refer an individual for drug testing that is administered through a sample of hair, fingernails, or saliva;
• 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 saliva; and
• makes technical and conforming changes.

Every vote on this bill

Bill text

CHILD WELFARE PROCEEDINGS TESTING
REQUIREMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Christine F. Watkins
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill addresses drug testing for certain individuals.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ provides that a guardian ad litem may not refer an individual for drug testing that is
administered through a sample of hair, fingernails, or saliva;
▸ 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
saliva; and
▸ makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
78A-2-803
, as last amended by Laws of Utah 2022, Chapters 272, 334
80-2-301
, as last amended by Laws of Utah 2022, Chapter 430 and renumbered and
amended by Laws of Utah 2022, Chapter 334
80-3-110
, as last amended by Laws of Utah 2022, Chapter 256
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78A-2-803
 is amended to read:
78A-2-803.
Appointment of attorney guardian ad litem -- Duties and
responsibilities -- Training -- Trained staff and court-appointed special advocate
volunteers -- Costs -- Immunity -- Annual report.
(1) (a) The court:
(i) may appoint an attorney guardian ad litem to represent the best interest of a minor
involved in any case before the court; and
(ii) shall consider the best interest of a minor, consistent with the provisions of Section
80-2a-201
, in determining whether to appoint a guardian ad litem.
(b) In all cases where an attorney guardian ad litem is appointed, the court shall make a
finding that establishes the necessity of the appointment.
(2) An attorney guardian ad litem shall represent the best interest of each minor who
may become the subject of an abuse, neglect, or dependency petition from the earlier of:
(a) the day on which the minor is removed from the minor's home by the division; or
(b) the day on which the abuse, neglect, or dependency petition is filed.
(3) The director shall ensure that each attorney guardian ad litem employed by the
office:
(a) represents the best interest of each client of the office in all venues, including:
(i) court proceedings; and
(ii) meetings to develop, review, or modify the child and family plan with the division
in accordance with Section 
80-3-307
;
(b) before representing any minor before the court, be trained in:
(i) applicable statutory, regulatory, and case law; and
(ii) nationally recognized standards for an attorney guardian ad litem;
(c) conducts or supervises an ongoing, independent investigation in order to obtain,
first-hand, a clear understanding of the situation and needs of the minor;
(d) (i) personally meets with the minor, unless:
(A) the minor is outside of the state; or
(B) meeting with the minor would be detrimental to the minor;
(ii) personally interviews the minor, unless:
(A) the minor is not old enough to communicate;
(B) the minor lacks the capacity to participate in a meaningful interview; or
(C) the interview would be detrimental to the minor; and
(iii) if the minor is placed in an out-of-home placement, or is being considered for
placement in an out-of-home placement, unless it would be detrimental to the minor:
(A) to the extent possible, determines the minor's goals and concerns regarding
placement; and
(B) personally assesses or supervises an assessment of the appropriateness and safety
of the minor's environment in each placement;
(e) personally attends all review hearings pertaining to the minor's case;
(f) participates in all appeals, unless excused by order of the court;
(g) is familiar with local experts who can provide consultation and testimony regarding
the reasonableness and appropriateness of efforts made by the division to:
(i) maintain a minor in the minor's home; or
(ii) reunify a minor with a minor's parent;
(h) to the extent possible, and unless it would be detrimental to the minor, personally
or through a trained volunteer, paralegal, or other trained staff, keeps the minor advised of:
(i) the status of the minor's case;
(ii) all court and administrative proceedings;
(iii) discussions with, and proposals made by, other parties;
(iv) court action; and
(v) the psychiatric, medical, or other treatment or diagnostic services that are to be
provided to the minor;
(i) in cases where a child and family plan is required, personally or through a trained
volunteer, paralegal, or other trained staff, monitors implementation of a minor's child and
family plan and any dispositional orders to:
(i) determine whether services ordered by the court:
(A) are actually provided; and
(B) are provided in a timely manner; and
(ii) attempt to assess whether services ordered by the court are accomplishing the
intended goal of the services; and
(j) makes all necessary court filings to advance the guardian's ad litem position
regarding the best interest of the minor.
(4) (a) Consistent with this Subsection (4), an attorney guardian ad litem may use
trained volunteers, in accordance with Title 67, Chapter 20, Volunteer Government Workers
Act, trained paralegals, and other trained staff to assist in investigation and preparation of
information regarding the cases of individual minors before the court.
(b) A volunteer, paralegal, or other staff utilized under this section shall be trained in
and follow, at a minimum, the guidelines established by the United States Department of
Justice Court Appointed Special Advocate Association.
(5) The attorney guardian ad litem shall continue to represent the best interest of the
minor until released from that duty by the court.
(6) (a) Consistent with Subsection (6)(b), the juvenile court is responsible for:
(i) all costs resulting from the appointment of an attorney guardian ad litem; and
(ii) the costs of volunteer, paralegal, and other staff appointment and training.
(b) The court shall use funds appropriated by the Legislature for the guardian ad litem
program to cover the costs described in Subsection (6)(a).
(c) (i) When the court appoints an attorney guardian ad litem under this section, the
court may assess all or part of the attorney fees, court costs, and paralegal, staff, and volunteer
expenses against the minor's parents, parent, or legal guardian in a proportion that the court
determines to be just and appropriate, taking into consideration costs already borne by the
parents, parent, or legal guardian, including:
(A) private attorney fees;
(B) counseling for the minor;
(C) counseling for the parent, if mandated by the court or recommended by the
division; and
(D) any other cost the court determines to be relevant.
(ii) The court may not assess the fees or costs described in Subsection (6)(c)(i) against:
(A) a legal guardian, when that guardian is the state; or
(B) consistent with Subsection (6)(d), a parent who is found to be an indigent
individual.
(d) For purposes of Subsection (6)(c)(ii)(B), if an individual claims to be an indigent
individual, the court shall:
(i) require the individual to submit an affidavit of indigency as provided in Section
78A-2-302
; and
(ii) follow the procedures and make the determinations as provided in Section
78A-2-304
.
(e) The minor's parents, parent, or legal guardian may appeal the court's determination,
under Subsection (6)(c), of fees, costs, and expenses.
(7) An attorney guardian ad litem appointed under this section, when serving in the
scope of the attorney guardian's ad litem duties as guardian ad litem is considered an employee
of the state for purposes of indemnification under Title 63G, Chapter 7, Governmental
Immunity Act of Utah.
(8) (a) An attorney guardian ad litem shall represent the best interest of a minor.
(b) If the minor's wishes differ from the attorney's determination of the minor's best
interest, the attorney guardian ad litem shall communicate the minor's wishes to the court in
addition to presenting the attorney's determination of the minor's best interest.
(c) A difference between the minor's wishes and the attorney's determination of best
interest may not be considered a conflict of interest for the attorney.
(d) The guardian ad litem shall disclose the wishes of the minor unless the minor:
(i) instructs the guardian ad litem to not disclose the minor's wishes; or
(ii) has not expressed any wishes.
(e) The court may appoint one attorney guardian ad litem to represent the best interests
of more than one minor of a marriage.
(9) The division shall provide an attorney guardian ad litem access to all division
records regarding the minor at issue and the minor's family.
(10) (a) An attorney guardian ad litem shall conduct an independent investigation
regarding the minor at issue, the minor's family, and what is in the best interest of the minor.
(b) An attorney guardian ad litem may interview the minor's child welfare caseworker,
but may not:
(i) rely exclusively on the conclusions and findings of the division; or
(ii) except as provided in Subsection (10)(c), conduct a visit with the client in
conjunction with the visit of a child welfare caseworker.
(c) (i) An attorney guardian ad litem may meet with a client during a team meeting,
court hearing, or similar venue when a child welfare caseworker is present for a purpose other
than the attorney guardian ad litem's meeting with the client.
(ii) A party and the party's counsel may attend a team meeting in accordance with the
Utah Rules of Professional Conduct.
(11) (a) An attorney guardian ad litem shall maintain current and accurate records
regarding:
(i) the number of times the attorney has had contact with each minor; and
(ii) the actions the attorney has taken in representation of the minor's best interest.
(b) In every hearing where the attorney guardian ad litem makes a recommendation
regarding the best interest of the minor, the court shall require the attorney guardian ad litem to
disclose the factors that form the basis of the recommendation.
(12) (a) Except as provided in Subsection (12)(b), and notwithstanding Title 63G,
Chapter 2, Government Records Access and Management Act, all records of an attorney
guardian ad litem are confidential and may not be released or made public upon subpoena,
search warrant, discovery proceedings, or otherwise.
(b) Consistent with Subsection (12)(d), all records of an attorney guardian ad litem:
(i) are subject to legislative subpoena, under Title 36, Chapter 14, Legislative
Subpoena Powers; and
(ii) shall be released to the Legislature.
(c) (i) Except as provided in Subsection (12)(c)(ii), the Legislature shall maintain
records released in accordance with Subsection (12)(b) as confidential.
(ii) Notwithstanding Subsection (12)(c)(i), the Office of the Legislative Auditor
General may include summary data and nonidentifying information in the office's audits and
reports to the Legislature.
(d) (i) Subsection (12)(b) is an exception to Rules of Professional Conduct, Rule 1.6,
as provided by Rule 1.6(b)(4), because of:
(A) the unique role of an attorney guardian ad litem described in Subsection (8); and
(B) the state's role and responsibility to provide a guardian ad litem program, and as
parens patriae, to protect minors.
(ii) A claim of attorney-client privilege does not bar access to the records of an attorney
guardian ad litem by the Legislature, through legislative subpoena.
(13) A guardian ad litem may not refer an individual for drug testing by means of a
hair, fingernail, or saliva test that is administered to detect the presence of drugs.
Section 2. Section 
80-2-301
 is amended to read:
80-2-301.
Division responsibilities.
(1) The division is the child, youth, and family services authority of the state.
(2) 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 of the
department 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 Sections 
80-2-806
 through 
80-2-809
, 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 in accordance with Section 
80-2-306
,
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 this chapter, Chapter 2a, Removal and Protective Custody of a Child, and
Chapter 3, Abuse, Neglect, and Dependency Proceedings;
(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 this chapter, Chapter 2a, Removal and Protective
Custody of a Child, and Chapter 3, Abuse, Neglect, and Dependency Proceedings;
(vi) domestic violence services, in accordance with the requirements of federal law;
(vii) protective services to victims of domestic violence and the victims' children, in
accordance with this chapter, Chapter 2a, Removal and Protective Custody of a Child, and
Chapter 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 
76-5-310.1
, 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 and Chapter 2a, Removal and
Protective Custody of a Child;
(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, or neglected children
placed in the custody of the division; and
(iii) direct or contract providers of domestic violence services described in Subsection
(2)(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 
80-2-405
; and
(ii) approve facilities that meet the standards established under Subsection (2)(c) to
provide substitute care for dependent, abused, or 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) in accordance with Subsection (5)(a), promote and enforce state and federal laws
enacted for the protection of abused, neglected, or dependent children, in accordance with this
chapter and Chapter 2a, Removal and Protective Custody of a Child, unless administration is
expressly vested in another division or department of the state;
(g) 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;
(h) compile relevant information, statistics, and reports on child and family service
matters in the state;
(i) 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 
80-2-1102
 and 
80-2-1103
;
(j) within appropriations from the Legislature, provide or contract for a variety of
domestic violence services and treatment methods;
(k) enter into contracts for programs designed to reduce the occurrence or recurrence of
abuse and neglect in accordance with Section 
80-2-503
;
(l) seek reimbursement of funds the division expends on behalf of a child in the
protective custody, temporary custody, or custody of the division, from the child's parent or
guardian in accordance with an order for child support under Section 
78A-6-356
;
(m) 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, under Section 
80-3-409
, and
promote adoption of the children;
(n) subject to Subsections (5) and (7), 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;
(o) 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
during the previous fiscal year; and
(iii) any recommended changes to the division's budget to support the daily
reimbursement rates described in Subsection (2)(o)(i); and
(p) perform other duties and functions required by law.
(3) (a) The division may provide, directly or through contract, services that include the
following:
(i) adoptions;
(ii) day-care services;
(iii) out-of-home placements for minors;
(iv) health-related services;
(v) homemaking services;
(vi) home management services;
(vii) protective services for minors;
(viii) transportation services; or
(ix) domestic violence services.
(b) The division shall monitor services provided directly by the division or through
contract to ensure compliance with applicable law and rules made in accordance with Title
63G, Chapter 3, Utah Administrative Rulemaking Act.
(c) (i) Except as provided in Subsection (3)(c)(ii), if the division provides a service
through a private contract, the division shall post the name of the service provider on the
division's website.
(ii) Subsection (3)(c)(i) does not apply to a foster parent placement.
(4) (a) The division may:
(i) receive gifts, grants, devises, and donations;
(ii) encourage merchants and service providers to:
(A) donate goods or services; or
(B) provide goods or services at a nominal price or below cost;
(iii) distribute goods to applicants or consumers of division services free or for a
nominal charge and tax free; and
(iv) appeal to the public for funds to meet needs of applicants or consumers of division
services that are not otherwise provided by law, including Sub-for-Santa programs, recreational
programs for minors, and requests for household appliances and home repairs.
(b) If requested by the donor and subject to state and federal law, the division shall use
a gift, grant, devise, donation, or proceeds from the gift, grant, devise, or donation for the
purpose requested by the donor.
(5) (a) In carrying out the requirements of Subsection (2)(f), 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 Subsection (5)(a)(ii), within the division's budget.
(b) If an individual is referred to a local substance abuse authority or other private or
public resource for court-ordered drug screening under Subsection (2)(n), 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 an indigent individual.
(6) Except to the extent provided by rules made in accordance with Title 63G, Chapter
3, Utah Administrative Rulemaking Act, the division is not required to investigate domestic
violence in the presence of a child, as described in Section 
76-5-114
.
(7) The division may not:
(a) 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; or
(b) refer an individual who is receiving services from the division for drug testing by
means of a hair [
or
]
,
 fingernail
, or saliva
 test that is administered to detect the presence of
drugs.
Section 3. Section 
80-3-110
 is amended to read:
80-3-110.
Consideration of cannabis during proceedings -- Drug testing.
(1) As used in this section:
(a) "Cannabis" means the same as that term is defined in Section 
26-61a-102
.
(b) "Cannabis product" means the same as that term is defined in Section 
26-61a-102
.
(c) (i) "Chronic" means repeated or patterned.
(ii) "Chronic" does not mean an isolated incident.
(d) "Directions of use" means the same as that term is defined in Section 
26-61a-102
.
(e) "Dosing guidelines" means the same as that term is defined in Section 
26-61a-102
.
(f) "Medical cannabis" means the same as that term is defined in Section 
26-61a-102
.
(g) "Medical cannabis cardholder" means the same as that term is defined in Section
26-61a-102
.
(h) " Recommending medical provider" means the same as that term is defined in
Section 
26-61a-102
.
(2) In a proceeding under this chapter, in which the juvenile court makes a finding,
determination, or otherwise considers an individual's medical cannabis card, medical cannabis
recommendation from a recommending medical provider, or possession or use of medical
cannabis, a cannabis product, or a medical cannabis device, the juvenile court may not consider
or treat the individual's medical cannabis card, recommendation, possession, or use any
differently than the lawful possession or use of any prescribed controlled substance if:
(a) the individual's possession or use complies with Title 4, Chapter 41a, Cannabis
Production Establishments;
(b) the individual's possession or use complies with Subsection 
58-37-3.7
(2) or (3); or
(c) (i) the individual's possession or use complies with Title 26, Chapter 61a, Utah
Medical Cannabis Act; and
(ii) the individual reasonably complies with the directions of use and dosing guidelines
determined by the individual's recommending medical provider or through a consultation
described in Subsection 
26-61a-502
(4) or (5).
(3) In a proceeding under this chapter, a child's parent's or guardian's use of cannabis or
a cannabis product is not abuse or neglect of the child unless there is evidence showing that:
(a) 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
(b) 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.
(4) Unless there is harm or an unreasonable risk of harm to the child as described in
Subsection (3), in a child welfare proceeding under this chapter, a child's parent's or guardian's
use of medical cannabis or a cannabis product is not contrary to the best interests of the child
if:
(a) 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
recommending medical provider or through a consultation described in Subsection
26-61a-502
(4) or (5); or
(b) before January 1, 2021, the parent's or guardian's possession or use complies with
Subsection 
58-37-3.7
(2) or (3).
(5) Subsection (3) does not prohibit a finding of abuse or neglect of a child, and
Subsection (3) 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.
(6) If an individual, who is party to a proceeding under this chapter, 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
, or saliva
 test that is administered to detect the presence of drugs.