| (1) |
A juvenile court shall hold a shelter hearing to determine the temporary custody of a child within 72 hours, excluding weekends and holidays, after any one or all of the following occur:
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Terms Used In Utah Code 80-3-301- Abuse: means :
| (i) | | (A) | nonaccidental harm of a child; |
| (B) | threatened harm of a child; |
| (E) | human trafficking of a child in violation of Section 76-5-308. See Utah Code 80-1-102- Adult: means an individual who is 18 years old or older. See Utah Code 80-1-102
- Child: means , except as provided in Section 80-2-905, an individual who is under 18 years old. See Utah Code 80-1-102
- Clandestine laboratory operation: means the same as that term is defined in Section 58-37d-3. See Utah Code 80-1-102
- Continuance: Putting off of a hearing ot trial until a later time.
- Custody: means the same as that term is defined in Section 80-2-102. See Utah Code 80-3-102
- dependency: means a child who is without proper care through no fault of the child's parent, guardian, or custodian. See Utah Code 80-1-102
- Division: means the Division of Child and Family Services created in Section 80-2-201. See Utah Code 80-3-102
- Educational neglect: means that, after receiving a notice of compulsory education violation under Section 53G-6-202, the parent or guardian fails to make a good faith effort to ensure that the child receives an appropriate education. See Utah Code 80-1-102
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Friend: means an adult who:
| (a) | has an established relationship with the child or a family member of the child; and |
| (b) | is not the natural parent of the child. See Utah Code 80-3-102- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: means a person appointed by a court to make decisions regarding a minor, including the authority to consent to:
| (b) | enlistment in the armed forces; |
| (c) | major medical, surgical, or psychiatric treatment; or |
| (d) | legal custody, if legal custody is not vested in another individual, agency, or institution. See Utah Code 80-1-102- Guardian ad litem: means the same as that term is defined in Section 78A-2-801. See Utah Code 80-1-102
- Indigent individual: means the same as that term is defined in Section 78B-22-102. See Utah Code 80-1-102
- Minor: means , except as provided in Sections 80-6-501, 80-6-901, and 80-7-102:
| (b) | an individual:| (i) | | (A) | who is at least 18 years old and younger than 21 years old; and |
| (B) | for whom the Division of Child and Family Services has been specifically ordered by the juvenile court to provide services because the individual was an abused, neglected, or dependent child or because the individual was adjudicated for an offense; |
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| (ii) | | (A) | who is at least 18 years old and younger than 25 years old; and |
| (B) | whose case is under the jurisdiction of the juvenile court in accordance with Subsection 78A-6-103(1)(b); or |
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| (iii) | | (A) | who is at least 18 years old and younger than 21 years old; and |
| (B) | whose case is under the jurisdiction of the juvenile court in accordance with Subsection 78A-6-103(1)(c). See Utah Code 80-1-102- Natural parent: includes the minor's noncustodial parent. See Utah Code 80-1-102
- Neglect: means action or inaction causing:
| (i) | abandonment of a child, except as provided in 5; |
| (ii) | lack of proper parental care of a child by reason of the fault or habits of the parent, guardian, or custodian; |
| (iii) | failure or refusal of a parent, guardian, or custodian to provide proper or necessary subsistence or medical care, or any other care necessary for the child's health, safety, morals, or well-being; |
| (iv) | a child to be at risk of being neglected or abused because another child in the same home is neglected or abused; |
| (v) | abandonment of a child through an unregulated child custody transfer under Section 78B-24-203; or |
| (vi) | educational neglect. See Utah Code 80-1-102- Property: includes both real and personal property. See Utah Code 68-3-12.5
- Protective custody: means the shelter of a child by the Division of Child and Family Services from the time the child is removed from the home until the earlier of:
| (a) | the day on which the shelter hearing is held under Section 80-3-301; or |
| (b) | the day on which the child is returned home. See Utah Code 80-1-102- Relative: means an adult who:
| (a) | is the child's grandparent, great grandparent, aunt, great aunt, uncle, great uncle, brother-in-law, sister-in-law, stepparent, first cousin, stepsibling, or sibling; |
| (b) | is a first cousin of the child's parent; |
| (c) | is a permanent guardian or natural parent of the child's sibling; or |
| (d) | in the case of a child who is an Indian child, is an extended family member as defined in the Indian Child Welfare Act, 25 U. See Utah Code 80-3-102- Severe abuse: means abuse that causes or threatens to cause serious harm to a child. See Utah Code 80-1-102
- Severe neglect: means neglect that causes or threatens to cause serious harm to a child. See Utah Code 80-1-102
- Sexual abuse: means :
| (a) | an act or attempted act of sexual intercourse, sodomy, incest, or molestation by an adult directed towards a child; |
| (b) | an act or attempted act of sexual intercourse, sodomy, incest, or molestation committed by a child towards another child if:| (i) | there is an indication of force or coercion; |
| (ii) | the children are related, as described in Subsection (39), including siblings by marriage while the marriage exists or by adoption; |
| (iii) | there have been repeated incidents of sexual contact between the two children, unless the children are 14 years old or older; or |
| (iv) | there is a disparity in chronological age of four or more years between the two children; |
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| (c) | engaging in any conduct with a child that would constitute an offense under any of the following, regardless of whether the individual who engages in the conduct is actually charged with, or convicted of, the offense:| (i) | 4, except for Section 76-5-401, if the alleged perpetrator of an offense described in Section 76-5-401 is a minor; |
| (ii) | child bigamy, Section 76-7-101. See Utah Code 80-1-102- Sexual exploitation: means knowingly:
| (a) | employing, using, persuading, inducing, enticing, or coercing any child to:| (i) | pose in the nude for the purpose of sexual arousal of any individual; or |
| (ii) | engage in any sexual or simulated sexual conduct for the purpose of photographing, filming, recording, or displaying in any way the sexual or simulated sexual conduct; |
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| (b) | displaying, distributing, possessing for the purpose of distribution, or selling material depicting a child:| (i) | in the nude, for the purpose of sexual arousal of any individual; or |
| (ii) | engaging in sexual or simulated sexual conduct; or |
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| (c) | engaging in any conduct that would constitute an offense under Section 76-5b-201, sexual exploitation of a minor, or Section 76-5b-201. See Utah Code 80-1-102- Shelter: means the temporary care of a child in a physically unrestricted facility pending a disposition or transfer to another jurisdiction. See Utah Code 80-1-102
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
- Temporary custody: means the same as that term is defined in Section 80-2-102. See Utah Code 80-3-102
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
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| (a) |
removal of the child from the child’s home by the division; |
| (b) |
placement of the child in protective custody; |
| (d) |
as an alternative to removal of the child, a parent enters a domestic violence shelter at the request of the division; or |
| (e) |
a motion for expedited placement in temporary custody is filed under Section 80-3-203. |
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| (2) |
If one of the circumstances described in Subsections (1)(a) through (e) occurs, the division shall issue a notice that contains all of the following:
| (a) |
the name and address of the individual to whom the notice is directed; |
| (b) |
the date, time, and place of the shelter hearing; |
| (c) |
the name of the child on whose behalf an abuse, neglect, or dependency petition is brought; |
| (d) |
a concise statement regarding:
| (i) |
the reasons for removal or other action of the division under Subsection (1); and |
| (ii) |
the allegations and code sections under which the proceeding is instituted; |
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| (e) |
a statement that the parent or guardian to whom notice is given, and the child, are entitled to have an attorney present at the shelter hearing, and that if the parent or guardian is an indigent individual and cannot afford an attorney, and desires to be represented by an attorney, one will be provided in accordance with Title 78B, Chapter 22, Indigent Defense Act; and |
| (f) |
a statement that the parent or guardian is liable for the cost of support of the child in the protective custody, temporary custody, and custody of the division, and the cost for legal counsel appointed for the parent or guardian under Subsection (2)(e), according to the financial ability of the parent or guardian. |
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| (3) |
The notice described in Subsection (2) shall be personally served as soon as possible, but no later than one business day after the day on which the child is removed from the child’s home, or the day on which a motion for expedited placement in temporary custody under Section 80-3-203 is filed, on:
| (a) |
the appropriate guardian ad litem; and |
| (b) |
both parents and any guardian of the child, unless the parents or guardians cannot be located. |
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| (4) |
Notwithstanding Section 80-3-104, the following individuals shall be present at the shelter hearing:
| (a) |
the child, unless it would be detrimental for the child; |
| (b) |
the child’s parents or guardian, unless the parents or guardian cannot be located, or fail to appear in response to the notice; |
| (c) |
counsel for the parents, if one is requested; |
| (d) |
the child’s guardian ad litem; |
| (e) |
the child welfare caseworker from the division who is assigned to the case; and |
| (f) |
the attorney from the attorney general’s office who is representing the division. |
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| (5) |
| (a) |
At the shelter hearing, the juvenile court shall:
| (i) |
provide an opportunity to provide relevant testimony to:
| (A) |
the child’s parent or guardian, if present; and |
| (B) |
any other individual with relevant knowledge; |
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| (ii) |
subject to Section 80-3-108, provide an opportunity for the child to testify; and |
| (iii) |
in accordance with Subsections 80-3-302(7)(c) and (d), grant preferential consideration to a relative or friend for the temporary placement of the child. |
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| (b) |
The juvenile court:
| (i) |
may consider all relevant evidence, in accordance with the Utah Rules of Juvenile Procedure; |
| (ii) |
shall hear relevant evidence presented by the child, the child’s parent or guardian, the requesting party, or the requesting party’s counsel; and |
| (iii) |
may in the juvenile court’s discretion limit testimony and evidence to only that which goes to the issues of removal and the child’s need for continued protection. |
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| (6) |
If the child is in protective custody, the division shall report to the juvenile court:
| (a) |
the reason why the child was removed from the parent’s or guardian’s custody; |
| (b) |
any services provided to the child and the child’s family in an effort to prevent removal; |
| (c) |
the need, if any, for continued shelter; |
| (d) |
the available services that could facilitate the return of the child to the custody of the child’s parent or guardian; and |
| (e) |
subject to Subsections 80-3-302(7)(c) and (d), whether any relatives of the child or friends of the child’s parents may be able and willing to accept temporary placement of the child. |
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| (7) |
The juvenile court shall consider all relevant evidence provided by an individual or entity authorized to present relevant evidence under this section. |
| (8) |
| (a) |
If necessary to protect the child, preserve the rights of a party, or for other good cause shown, the juvenile court may grant no more than one continuance, not to exceed five judicial days. |
| (b) |
A juvenile court shall honor, as nearly as practicable, the request by a parent or guardian for a continuance under Subsection (8)(a). |
| (c) |
Notwithstanding Subsection (8)(a), if the division fails to provide the notice described in Subsection (2) within the time described in Subsection (3), the juvenile court may grant the request of a parent or guardian for a continuance, not to exceed five judicial days. |
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| (9) |
| (a) |
If the child is in protective custody, the juvenile court shall order that the child be returned to the custody of the parent or guardian unless the juvenile court finds, by a preponderance of the evidence, consistent with the protections and requirements provided in Subsection 80-2a-201(1), that any one of the following exists:
| (i) |
subject to Subsection (9)(b)(i), there is a serious danger to the physical health or safety of the child and the child’s physical health or safety may not be protected without removing the child from the custody of the child’s parent; |
| (ii) |
| (A) |
the child is suffering emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning; |
| (B) |
the parent or guardian is unwilling or unable to make reasonable changes that would sufficiently prevent future damage; and |
| (C) |
there are no reasonable 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; |
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| (iii) |
there is a substantial risk that the child will suffer abuse or neglect if the child is not removed from the custody of the child’s parent or guardian; |
| (iv) |
subject to Subsection (9)(b)(ii), the child or a minor 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) |
a parent or guardian; |
| (B) |
a member of the parent’s household or the guardian’s household; or |
| (C) |
an individual known to the parent or guardian; |
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| (v) |
the parent or guardian is unwilling to have physical custody of the child; |
| (vi) |
the parent or guardian is unable to have physical custody of the child; |
| (vii) |
the child is without any provision for the child’s support; |
| (viii) |
a parent who is incarcerated or institutionalized has not or cannot arrange for safe and appropriate care for the child; |
| (ix) |
| (A) |
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; |
| (B) |
the whereabouts of the parent or guardian are unknown; and |
| (C) |
reasonable efforts to locate the parent or guardian are unsuccessful; |
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| (xi) |
| (A) |
the physical environment or the fact that the child is left unattended beyond a reasonable period of time poses a threat to the child’s health or safety; and |
| (B) |
the parent or guardian is unwilling or unable to make reasonable changes that would remove the threat; |
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| (xii) |
| (A) |
the child or a minor residing in the same household has been neglected; and |
| (B) |
the parent or guardian is unwilling or unable to make reasonable changes that would prevent the neglect; |
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| (xiii) |
the parent, 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 any clandestine laboratory operation was located in the residence or on the property where the child resided; |
| (xiv) |
| (A) |
the child’s welfare is substantially endangered; and |
| (B) |
the parent or guardian is unwilling or unable to make reasonable changes that would remove the danger; or |
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| (xv) |
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. |
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| (b) |
| (i) |
Prima facie evidence of the finding described in Subsection (9)(a)(i) is established if:
| (A) |
a court previously adjudicated that the child suffered abuse, neglect, or dependency involving the parent; and |
| (B) |
a subsequent incident of abuse, neglect, or dependency involving the parent occurs. |
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| (ii) |
For purposes of Subsection (9)(a)(iv), if the juvenile court finds that the parent knowingly allowed the child to be in the physical care of an individual after the parent received actual notice that the individual physically abused, sexually abused, or sexually exploited the child, that fact is prima facie evidence that there is a substantial risk that the child will be physically abused, sexually abused, or sexually exploited. |
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| (10) |
| (a) |
| (i) |
The juvenile court shall make a determination on the record as to whether reasonable efforts were made to prevent or eliminate the need for removal of the child from the child’s home and whether there are available services that would prevent the need for continued removal. |
| (ii) |
If the juvenile court finds that the child can be safely returned to the custody of the child’s parent or guardian through the provision of the services described in Subsection (10)(a)(i), the juvenile court shall place the child with the child’s parent or guardian and order that the services be provided by the division. |
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| (b) |
In accordance with federal law, the juvenile court shall consider the child’s health, safety, and welfare as the paramount concern when making the determination described in Subsection (10)(a), and in ordering and providing the services described in Subsection (10)(a). |
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| (11) |
If the division’s first contact with the family occurred during an emergency situation in which the child could not safely remain at home, the juvenile court shall make a finding that any lack of preplacement preventive efforts, as described in Section 80-2a-302, was appropriate. |
| (12) |
In cases where sexual abuse, sexual exploitation, abandonment, severe abuse, or severe neglect are involved, the juvenile court and the division do not have any duty to make reasonable efforts or to, in any other way, attempt to maintain a child in the child’s home, return a child to the child’s home, provide reunification services, or attempt to rehabilitate the offending parent or parents. |
| (13) |
The juvenile court may not order continued removal of a child solely on the basis of educational neglect, truancy, or failure to comply with a court order to attend school. |
| (14) |
| (a) |
If a juvenile court orders continued removal of a child under this section, the juvenile court shall state the facts on which the decision is based. |
| (b) |
If no continued removal is ordered and the child is returned home, the juvenile court shall state the facts on which the decision is based. |
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| (15) |
If the juvenile court finds that continued removal and temporary custody are necessary for the protection of a child under Subsection (9)(a), the juvenile court shall order continued removal regardless of:
| (a) |
any error in the initial removal of the child; |
| (b) |
the failure of a party to comply with notice provisions; or |
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Amended by Chapter 309, 2023 General Session
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