78A-6-302 - Court-ordered protective custody of a child following petition filing -- Grounds.
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 thesubject of the petition is not in the protective custody of the division, a court may order that thechild be removed from the child's home or otherwise taken into protective custody if the courtfinds, by a preponderance of the evidence, that any one or more of the following circumstancesexist:
(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 childfrom the custody of the child's parent or guardian;
(b) (i) a parent or guardian engages in or threatens the child with unreasonable conductthat causes the child to suffer emotional damage; and
(ii) there are no reasonable means available by which the child's emotional health may beprotected 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 tobe at substantial risk of being, physically abused, sexually abused, or sexually exploited, by aparent or guardian, a member of the parent's or guardian's household, or other person known tothe 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 orcannot 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 orguardian 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) the child is in immediate need of medical care;
(i) (i) a parent's or guardian's actions, omissions, or habitual action create an environmentthat poses a threat to the child's health or safety; or
(ii) a parent's or guardian's action in leaving a child unattended would reasonably pose athreat to the child's health or safety;
(j) the child or another child residing in the same household has been neglected;
(k) an infant has been abandoned, as defined in Section 78A-6-316;
(l) (i) the parent or guardian, or an adult residing in the same household as the parent orguardian, 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 propertywhere the child resided; or
(m) the child's welfare is otherwise endangered.
(2) (a) For purposes of Subsection (1)(a), if a child has previously been adjudicated asabused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependencyoccurs involving the same substantiated abuser or under similar circumstance as the previousabuse, that fact constitutes prima facie evidence that the child cannot safely remain in the custodyof 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, sexuallyabused, 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, orsexual exploitation by a person known to the parent has occurred, and there is evidence that theparent or guardian failed to protect the child, after having received the notice, by allowing thechild to be in the physical presence of the alleged abuser, that fact constitutes prima facieevidence that the child is at substantial risk of being physically abused, sexually abused, orsexually exploited.
(3) In the absence of one of the factors described in Subsection (1), a court may notremove a child from the parent's or guardian's custody on the basis of:
(a) educational neglect;
(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) A child removed from the custody of the child's parent or guardian under this sectionmay not be placed or kept in a secure detention facility pending further court proceedings unlessthe child is detainable based on guidelines promulgated by the Division of Juvenile JusticeServices.
(5) This section does not preclude removal of a child from the child's home without awarrant or court order under Section 62A-4a-202.1.
(6) (a) Except as provided in Subsection (6)(b), a court or the Division of Child andFamily Services may not remove a child from the custody of the child's parent or guardian on thesole 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)(a), a court or the Division of Child and FamilyServices may remove a child under conditions that would otherwise be prohibited underSubsection (6)(a) if failure to take an action described under Subsection (6)(a) would present aserious, imminent risk to the child's physical safety or the physical safety of others.
Renumbered and Amended by Chapter 3, 2008 General Session