78A-6-307 - Shelter hearing -- Placement -- DCFS custody.
78A-6-307. Shelter hearing -- Placement -- DCFS custody.
(1) As used in this section:
(a) (i) "Natural parent," notwithstanding the provisions of Section 78A-6-105, means:
(A) a biological or adoptive mother;
(B) an adoptive father; or
(C) a biological father who:
(I) was married to the child's biological mother at the time the child was conceived orborn; or
(II) has strictly complied with the provisions of Sections 78B-6-120 through 78B-6-122,prior to removal of the child or voluntary surrender of the child by the custodial parent.
(ii) The definition of "natural parent" described in Subsection (1)(a)(i) applies regardlessof whether the child has been or will be placed with adoptive parents or whether adoption hasbeen or will be considered as a long term goal for the child.
(b) "Relative" means:
(i) an adult who is a grandparent, great grandparent, aunt, great aunt, uncle, great uncle,brother-in-law, sister-in-law, stepparent, first cousin, stepsibling, or sibling of a child; and
(ii) in the case of a child defined as an "Indian" under the Indian Child Welfare Act, 25U.S.C. Sec. 1903, "relative" also means an "extended family member" as defined by that statute.
(2) (a) At the shelter hearing, when the court orders that a child be removed from thecustody of the child's parent in accordance with the requirements of Section 78A-6-306, the courtshall first determine whether there is another natural parent with whom the child was not residingat the time the events or conditions that brought the child within the court's jurisdiction occurred,who desires to assume custody of the child.
(b) If another natural parent requests custody under Subsection (2)(a), the court shallplace the child with that parent unless it finds that the placement would be unsafe or otherwisedetrimental to the child.
(c) The provisions of this Subsection (2) are limited by the provisions of Subsection(18)(b).
(d) (i) The court shall make a specific finding regarding the fitness of the parentdescribed in Subsection (2)(b) to assume custody, and the safety and appropriateness of theplacement.
(ii) The court shall, at a minimum, order the division to visit the parent's home, complywith the criminal background check provisions described in Section 78A-6-308, and check thedivision's management information system for any previous reports of abuse or neglect receivedby the division regarding the parent at issue.
(iii) The court may order the division to conduct any further investigation regarding thesafety and appropriateness of the placement.
(iv) The division shall report its findings in writing to the court.
(v) The court may place the child in the temporary custody of the division, pending itsdetermination regarding that placement.
(3) If the court orders placement with a parent under Subsection(2):
(a) the child and the parent are under the continuing jurisdiction of the court;
(b) the court may order:
(i) that the parent assume custody subject to the supervision of the court; and
(ii) that services be provided to the parent from whose custody the child was removed,
the parent who has assumed custody, or both; and
(c) the court shall order reasonable parent-time with the parent from whose custody thechild was removed, unless parent-time is not in the best interest of the child.
(4) The court shall periodically review an order described in Subsection (3) to determinewhether:
(a) placement with the parent continues to be in the child's best interest;
(b) the child should be returned to the original custodial parent;
(c) the child should be placed in the custody of a relative, pursuant to Subsections (7)through (12); or
(d) the child should be placed in the custody of the division.
(5) The time limitations described in Section 78A-6-312 with regard to reunificationefforts, apply to children placed with a previously noncustodial parent in accordance withSubsection (2).
(6) Legal custody of the child is not affected by an order entered under Subsection (2) or(3). In order to affect a previous court order regarding legal custody, the party must petition thatcourt for modification of the order.
(7) If, at the time of the shelter hearing, a child is removed from the custody of the child'sparent and is not placed in the custody of the child's other parent, the court:
(a) shall, at that time, determine whether, subject to Subsections (18)(c) through (e),there is a relative of the child or a friend of a parent of the child who is able and willing to carefor the child;
(b) may order the division to conduct a reasonable search to determine whether, subjectto Subsections (18)(c) through (e), there are relatives of the child or friends of a parent of thechild who are willing and appropriate, in accordance with the requirements of this part and Title62A, Chapter 4a, Part 2, Child Welfare Services, for placement of the child;
(c) shall order the parents to cooperate with the division, within five working days, to,subject to Subsections (18)(c) through (e), provide information regarding relatives of the child orfriends who may be able and willing to care for the child; and
(d) may order that the child be placed in the custody of the division pending thedetermination under Subsection (7)(a).
(8) This section may not be construed as a guarantee that an identified relative or friendwill receive custody of the child.
(9) Subject to Subsections (18)(c) through (e), preferential consideration shall be given toa relative's or a friend's request for placement of the child, if it is in the best interest of the child,and the provisions of this section are satisfied.
(10) (a) If a willing relative or friend is identified under Subsection (7)(a), the court shallmake a specific finding regarding:
(i) the fitness of that relative or friend as a placement for the child; and
(ii) the safety and appropriateness of placement with that relative or friend.
(b) In order to be considered a "willing relative or friend" under this section, the relativeor friend shall be willing to cooperate with the child's permanency goal.
(11) (a) In making the finding described in Subsection (10)(a), the court shall, at aminimum, order the division to:
(i) if the child may be placed with a relative of the child, conduct a background checkthat includes:
(A) completion of a nonfingerprint-based, Utah Bureau of Criminal Identificationbackground check of the relative;
(B) a completed search, relating to the relative, of the Management Information Systemdescribed in Section 62A-4a-1003; and
(C) a background check that complies with the criminal background check provisionsdescribed in Section 78A-6-308, of each nonrelative, as defined in Subsection 62A-4a-209(1)(a),of the child who resides in the household where the child may be placed;
(ii) if the child will be placed with a noncustodial parent of the child, complete abackground check that includes:
(A) the background check requirements applicable to an emergency placement with anoncustodial parent that are described in Subsections 62A-4a-209(5) and (7);
(B) a completed search, relating to the noncustodial parent of the child, of theManagement Information System described in Section 62A-4a-1003; and
(C) a background check that complies with the criminal background check provisionsdescribed in Section 78A-6-308, of each nonrelative, as defined in Subsection 62A-4a-209(1)(a),of the child who resides in the household where the child may be placed;
(iii) if the child may be placed with an individual other than a noncustodial parent or arelative of the child, conduct a criminal background check of the individual, and each adult thatresides in the household where the child may be placed, that complies with the criminalbackground check provisions described in Section 78A-6-308;
(iv) visit the relative's or friend's home;
(v) check the division's management information system for any previous reports ofabuse or neglect regarding the relative or friend at issue;
(vi) report the division's findings in writing to the court; and
(vii) provide sufficient information so that the court may determine whether:
(A) the relative or friend has any history of abusive or neglectful behavior toward otherchildren that may indicate or present a danger to this child;
(B) the child is comfortable with the relative or friend;
(C) the relative or friend recognizes the parent's history of abuse and is committed toprotect the child;
(D) the relative or friend is strong enough to resist inappropriate requests by the parentfor access to the child, in accordance with court orders;
(E) the relative or friend is committed to caring for the child as long as necessary; and
(F) the relative or friend can provide a secure and stable environment for the child.
(b) The division may determine to conduct, or the court may order the division toconduct, any further investigation regarding the safety and appropriateness of the placement.
(c) The division shall complete and file its assessment regarding placement with arelative or friend as soon as practicable, in an effort to facilitate placement of the child with arelative or friend.
(12) (a) The court may place a child described in Subsection (2)(a) in the temporarycustody of the division, pending the division's investigation pursuant to Subsections (10) and(11), and the court's determination regarding the appropriateness of that placement.
(b) The court shall ultimately base its determination regarding the appropriateness of aplacement with a relative or friend on the best interest of the child.
(13) When the court awards custody and guardianship of a child with a relative or friend:
(a) the court shall order that:
(i) the relative or friend assume custody, subject to the continuing supervision of thecourt; and
(ii) any necessary services be provided to the child and the relative or friend;
(b) the child and any relative or friend with whom the child is placed are under thecontinuing jurisdiction of the court;
(c) the court may enter any order that it considers necessary for the protection and bestinterest of the child;
(d) the court shall provide for reasonable parent-time with the parent or parents fromwhose custody the child was removed, unless parent-time is not in the best interest of the child;and
(e) the court shall conduct a periodic review no less often than every six months, todetermine whether:
(i) placement with the relative or friend continues to be in the child's best interest;
(ii) the child should be returned home; or
(iii) the child should be placed in the custody of the division.
(14) No later than 12 months after placement with a relative or friend, the court shallschedule a hearing for the purpose of entering a permanent order in accordance with the bestinterest of the child.
(15) The time limitations described in Section 78A-6-312, with regard to reunificationefforts, apply to children placed with a relative or friend pursuant to Subsection (7).
(16) (a) If the court awards custody of a child to the division, and the division places thechild with a relative, the division shall:
(i) conduct a criminal background check of the relative that complies with the criminalbackground check provisions described in Section 78A-6-308; and
(ii) if the results of the criminal background check described in Subsection (16)(a)(i)would prohibit the relative from having direct access to the child under Section 62A-2-120, thedivision shall:
(A) take the child into physical custody; and
(B) within three days, excluding weekends and holidays, after taking the child intophysical custody under Subsection (16)(a)(ii)(A), give written notice to the court, and all partiesto the proceedings, of the division's action.
(b) Nothing in Subsection (16)(a) prohibits the division from placing a child with arelative, pending the results of the background check described in Subsection (16)(a) on therelative.
(17) When the court orders that a child be removed from the custody of the child's parentand does not award custody and guardianship to another parent, relative, or friend under thissection, the court shall order that the child be placed in the temporary custody of the Division ofChild and Family Services, to proceed to adjudication and disposition and to be provided withcare and services in accordance with this chapter and Title 62A, Chapter 4a, Child and FamilyServices.
(18) (a) Any preferential consideration that a relative or friend is initially grantedpursuant to Subsection (9) expires 120 days from the date of the shelter hearing. After that timeperiod has expired, a relative or friend who has not obtained custody or asserted an interest in a
child, may not be granted preferential consideration by the division or the court.
(b) When the time period described in Subsection (18)(a) has expired, the preferentialconsideration which is initially granted to a natural parent in accordance with Subsection (2), islimited. After that time the court shall base its custody decision on the best interest of the child.
(c) Prior to the expiration of the 120-day period described in Subsection (18)(a), thefollowing order of preference shall be applied when determining the person with whom a childwill be placed, provided that the person is willing, and has the ability, to care for the child:
(i) a noncustodial parent of the child;
(ii) a relative of the child;
(iii) subject to Subsection (18)(d), a friend of a parent of the child, if the friend is alicensed foster parent; and
(iv) other placements that are consistent with the requirements of law.
(d) In determining whether a friend is a willing and appropriate placement for a child,neither the court, nor the division, is required to consider more than one friend designated byeach parent of the child.
(e) If a parent of the child is not able to designate a friend who is a licensed foster parentfor placement of the child, but is able to identify a friend who is willing to become licensed as afoster parent:
(i) the department shall fully cooperate to expedite the licensing process for the friend;and
(ii) if the friend becomes licensed as a foster parent within the time frame described inSubsection (18)(a), the court shall determine whether it is in the best interests of the child toplace the child with the friend.
(19) If, following the shelter hearing, the child is placed with a person who is not aparent of the child, a relative of the child, a friend of a parent of the child, or a former fosterparent of the child, priority shall be given to a foster placement with a man and a woman who aremarried to each other, unless it is in the best interests of the child to place the child with a singlefoster parent.
(20) In determining the placement of a child, neither the court, nor the division, may takeinto account, or discriminate against, the religion of a person with whom the child may be placed,unless the purpose of taking religion into account is to place the child with a person or family ofthe same religion as the child.
Renumbered and Amended by Chapter 3, 2008 General Session
Amended by Chapter 17, 2008 General Session