80-3-302.  Shelter hearing — Placement of a child.

(1)  As used in this section:

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Terms Used In Utah Code 80-3-302

  • Abuse: means :
(i) 
(A) nonaccidental harm of a child;
(B) threatened harm of a child;
(C) sexual exploitation;
(D) sexual abuse; or
(E) human trafficking of a child in violation of Section 76-5-308. See Utah Code 80-1-102
  • Adjudication: means a finding by the court, incorporated in a decree, that the facts alleged in the petition have been proved. 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
  • committed: means , unless specified otherwise:
    (a) with respect to a child, to transfer legal custody; and
    (b) with respect to a minor who is at least 18 years old, to transfer custody. See Utah Code 80-1-102
  • Custody: means the same as that term is defined in Section 80-2-102. See Utah Code 80-3-102
  • Department: means the Department of Health and Human Services created in Section 26B-1-201. See Utah Code 80-1-102
  • Disposition: means an order by a juvenile court, after the adjudication of a minor, under Section 80-3-405 or 80-4-305 or 7. 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
  • 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
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Legal custody: means a relationship embodying:
    (a) the right to physical custody of the minor;
    (b) the right and duty to protect, train, and discipline the minor;
    (c) the duty to provide the minor with food, clothing, shelter, education, and ordinary medical care;
    (d) the right to determine where and with whom the minor shall live; and
    (e) the right, in an emergency, to authorize surgery or other extraordinary care. See Utah Code 80-1-102
  • Management Information System: means the Management Information System developed by the Division of Child and Family Services under Section 80-2-1001. 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
  • Process: means a writ or summons issued in the course of a judicial proceeding. 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
  • 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;
    (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
  • 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
  • Temporary custody: means the same as that term is defined in Section 80-2-102. See Utah Code 80-3-102
  • Writing: includes :Utah Code 68-3-12.5
    • (a)  “Asserted an interest” means to communicate, verbally or in writing, to the division or the court, that the relative or friend is interested in becoming a placement for the child.

    (b) 

    (i)  “Natural parent,” notwithstanding Section 80-1-102, means:

    (A)  a biological or adoptive mother of the child;

    (B)  an adoptive father of the child; or

    (C)  a biological father of the child who:

    (I)  was married to the child’s biological mother at the time the child was conceived or born; or

    (II)  has strictly complied with Sections 78B-6-120 through 78B-6-122, before removal of the child or voluntary surrender of the child by the custodial parent.

    (ii)  “Natural parent” includes the individuals described in Subsection (1)(b) regardless of whether the child has been or will be placed with adoptive parents or whether adoption has been or will be considered as a long-term goal for the child.

    (2) 

    (a)  At the shelter hearing, if the juvenile court orders that a child be removed from the custody of the child’s parent in accordance with Section 80-3-301, the juvenile court shall first determine whether there is another natural parent with whom the child was not residing at the time the events or conditions that brought the child within the juvenile court’s jurisdiction occurred, who desires to assume custody of the child.

    (b)  Subject to Subsection (7), if another natural parent requests custody under Subsection (2)(a), the juvenile court shall place the child with that parent unless the juvenile court finds that the placement would be unsafe or otherwise detrimental to the child.

    (c)  The juvenile court:

    (i)  shall make a specific finding regarding the fitness of the parent described in Subsection (2)(b) to assume custody, and the safety and appropriateness of the placement;

    (ii)  shall, at a minimum, order the division to visit the parent’s home, comply with the criminal background check provisions described in Section 80-3-305, and check the Management Information System for any previous reports of abuse or neglect received by the division regarding the parent at issue;

    (iii)  may order the division to conduct any further investigation regarding the safety and appropriateness of the placement; and

    (iv)  may place the child in the temporary custody of the division, pending the juvenile court’s determination regarding the placement.

    (d)  The division shall report the division’s findings from an investigation under Subsection (2)(c), regarding the child in writing to the juvenile court.

    (3)  If the juvenile court orders placement with a parent under Subsection (2):

    (a)  the child and the parent are under the continuing jurisdiction of the juvenile court;

    (b)  the juvenile court may order:

    (i)  that the parent take custody subject to the supervision of the juvenile 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 juvenile court shall order reasonable parent-time with the parent from whose custody the child was removed, unless parent-time is not in the best interest of the child.

    (4)  The juvenile court shall periodically review an order described in Subsection (3) to determine whether:

    (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 with a relative under Subsections (6) through (9); or

    (d)  the child should be placed in the temporary custody of the division.

    (5) 

    (a)  Legal custody of the child is not affected by an order entered under Subsection (2) or (3).

    (b)  To affect a previous court order regarding legal custody, the party shall petition the court for modification of legal custody.

    (6)  Subject to Subsection (7), if, at the time of the shelter hearing, a child is removed from the custody of the child’s parent and is not placed in the custody of the child’s other parent, the juvenile court:

    (a)  shall, at that time, determine whether there is a relative or a friend who is able and willing to care for the child, which may include asking a child, who is of sufficient maturity to articulate the child’s wishes in relation to a placement, if there is a relative or friend with whom the child would prefer to reside;

    (b)  may order the division to conduct a reasonable search to determine whether there are relatives or friends who are willing and appropriate, in accordance with the requirements of this chapter, Chapter 2, Child Welfare Services, and Chapter 2a, Removal and Protective Custody of a Child, for placement of the child;

    (c)  shall order the parents to cooperate with the division, within five working days, to provide information regarding relatives or friends who may be able and willing to care for the child; and

    (d)  may order that the child be placed in the temporary custody of the division pending the determination under Subsection (6)(a).

    (7) 

    (a) 

    (i)  Subject to Subsection (7)(b), and if the provisions of this section are satisfied, the division and the juvenile court shall give preferential consideration to a relative’s or a friend’s request for placement of the child, if the placement is in the best interest of the child.

    (ii)  If a relative or friend verbally communicates to the division or court that the relative or friend is interested in becoming a placement for the child, the division or court shall make a written record of the communication and include that written record in the report the division submits at the initial dispositional hearing, a report the division submits under Section 80-3-408, or the court’s legal file.

    (b) 

    (i) 

    (A)  The preferential consideration that the juvenile court or division initially grants a friend under Subsection (7)(a)(i) expires 120 days after the day on which the shelter hearing occurs.

    (B)  After the day on which the time period described in Subsection (7)(b)(i)(A) expires, the division or the juvenile court may not grant preferential consideration to a friend, who has not obtained custody or asserted an interest in the child.

    (ii) 

    (A)  Until eight months after the day on which the shelter hearing occurs, the preferential consideration that the juvenile court or division grants a relative under Subsection (7)(a)(i) is a rebuttable presumption that placement of the child with a relative is in the best interest of the child.

    (B)  After the rebuttable presumption described in Subsection (7)(b)(ii)(A) expires, the juvenile court or division shall give preferential consideration to a relative’s request for placement of the child, if the placement is in the best interest of the child considering the totality of the circumstances.

    (C)  If a relative asserts an interest in becoming a placement for the child more than one year after the day on which the shelter hearing occurs, the juvenile court may not give the relative the preferential consideration described in Subsection (7)(b)(ii)(B).

    (c)  The following order of preference shall be applied when determining the individual with whom a child will be placed, provided that the individual is willing and able to care for the child:

    (i)  a noncustodial parent of the child;

    (ii)  a relative of the child;

    (iii)  subject to Subsection (7)(d), a friend if the friend is a licensed foster parent; and

    (iv)  other placements that are consistent with the requirements of law.

    (d)  In determining whether a friend is a willing, able, and appropriate placement for a child, the juvenile court or the division:

    (i)  subject to Subsections (7)(d)(ii) through (iv), shall consider the child’s preferences or level of comfort with the friend;

    (ii)  is required to consider no more than one friend designated by each parent of the child and one friend designated by the child if the child is of sufficient maturity to articulate the child’s wishes in relation to a placement;

    (iii)  may limit the number of designated friends to two, one of whom shall be a friend designated by the child if the child is of sufficient maturity to articulate the child’s wishes in relation to a placement; and

    (iv)  shall give preference to a friend designated by the child if:

    (A)  the child is of sufficient maturity to articulate the child’s wishes; and

    (B)  the basis for removing the child under Section 80-3-301 is sexual abuse of the child.

    (e) 

    (i)  If a parent of the child or the child, if the child is of sufficient maturity to articulate the child’s wishes in relation to a placement, is not able to designate a friend who is a licensed foster parent for placement of the child, but is able to identify a friend who is willing to become licensed as a foster parent, the department shall fully cooperate to expedite the licensing process for the friend.

    (ii)  If the friend described in Subsection (7)(e)(i) becomes licensed as a foster parent within the time frame described in Subsection (7)(b)(i), the juvenile court shall determine whether it is in the best interest of the child to place the child with the friend.

    (8) 

    (a)  If a relative or friend who is willing to cooperate with the child’s permanency goal is identified under Subsection (6)(a), the juvenile court:

    (i)  shall make a specific finding regarding:

    (A)  the fitness of that relative or friend as a placement for the child; and

    (B)  the safety and appropriateness of placement with the relative or friend; and

    (ii)  may not consider a request for guardianship or adoption of the child by an individual who is not a relative of the child, or prevent the division from placing the child in the custody of a relative of the child in accordance with this part, until after the day on which the juvenile court makes the findings under Subsection (8)(a)(i).

    (b)  In making the finding described in Subsection (8)(a), the juvenile court shall, at a minimum, order the division to:

    (i)  if the child may be placed with a relative, conduct a background check that includes:

    (A)  completion of a nonfingerprint-based, Utah Bureau of Criminal Identification background check of the relative;

    (B)  a completed search, relating to the relative, of the Management Information System; and

    (C)  a background check that complies with the criminal background check provisions described in Section 80-3-305, of each nonrelative 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, complete a background check that includes:

    (A)  the background check requirements applicable to an emergency placement with a noncustodial parent that are described in Subsections 80-2a-301(4) and (6);

    (B)  a completed search, relating to the noncustodial parent of the child, of the Management Information System; and

    (C)  a background check that complies with the criminal background check provisions described in Section 80-3-305, of each nonrelative 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 a relative, conduct a criminal background check of the individual, and each adult that resides in the household where the child may be placed, that complies with the criminal background check provisions described in Section 80-3-305;

    (iv)  visit the relative’s or friend’s home;

    (v)  check the Management Information System for any previous reports of abuse or neglect regarding the relative or friend at issue;

    (vi)  report the division’s findings in writing to the juvenile court; and

    (vii)  provide sufficient information so that the juvenile court may determine whether:

    (A)  the relative or friend has any history of abusive or neglectful behavior toward other children 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 to protect the child;

    (D)  the relative or friend is strong enough to resist inappropriate requests by the parent for 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.

    (c)  The division may determine to conduct, or the juvenile court may order the division to conduct, any further investigation regarding the safety and appropriateness of the placement described in Subsection (8)(a).

    (d)  The division shall complete and file the division’s assessment regarding placement with a relative or friend under Subsections (8)(a) and (b) as soon as practicable, in an effort to facilitate placement of the child with a relative or friend.

    (9) 

    (a)  The juvenile court may place a child described in Subsection (2)(a) in the temporary custody of the division, pending the division’s investigation under Subsection (8), and the juvenile court’s determination regarding the appropriateness of the placement.

    (b)  The juvenile court shall ultimately base the juvenile court’s determination regarding the appropriateness of a placement with a relative or friend on the best interest of the child.

    (10)  If a juvenile court places a child described in Subsection (6) with the child’s relative or friend:

    (a)  the juvenile court shall:

    (i)  order the relative or friend take custody, subject to the continuing supervision of the juvenile court;

    (ii)  provide for reasonable parent-time with the parent or parents from whose custody the child is removed, unless parent-time is not in the best interest of the child; and

    (iii)  conduct a periodic review no less often than every six months, to determine whether:

    (A)  placement with a relative or friend continues to be in the child’s best interest;

    (B)  the child should be returned home; or

    (C)  the child should be placed in the custody of the division;

    (b)  the juvenile court may enter an order:

    (i)  requiring the division to provide necessary services to the child and the child’s relative or friend, including the monitoring of the child’s safety and well-being; or

    (ii)  that the juvenile court considers necessary for the protection and best interest of the child; and

    (c)  the child and the relative or friend in whose custody the child is placed are under the continuing jurisdiction of the juvenile court.

    (11)  No later than 12 months after the day on which the child is removed from the home, the juvenile court shall schedule a hearing for the purpose of entering a permanent order in accordance with the best interest of the child.

    (12)  The time limitations described in Section 80-3-406, with regard to reunification efforts, apply to a child placed with a previously noncustodial parent under Subsection (2) or with a relative or friend under Subsection (6).

    (13) 

    (a)  If the juvenile court awards temporary custody of a child to the division, and the division places the child with a relative, the division shall:

    (i)  conduct a criminal background check of the relative that complies with the criminal background check provisions described in Section 80-3-305; and

    (ii)  if the results of the criminal background check described in Subsection (13)(a)(i) would prohibit the relative from having direct access to the child under Section 26B-2-120, the division shall:

    (A)  take the child into physical custody; and

    (B)  within three days, excluding weekends and holidays, after the day on which the child is taken into physical custody under Subsection (13)(a)(ii)(A), give written notice to the juvenile court, and all parties to the proceedings, of the division’s action.

    (b)  Subsection (13)(a) does not prohibit the division from placing a child with a relative, pending the results of the background check described in Subsection (13)(a) on the relative.

    (14)  If the juvenile court orders that a child be removed from the custody of the child’s parent and does not award custody and guardianship to another parent, relative, or friend under this section, the juvenile court shall order that the child be placed in the temporary custody of the division, to proceed to adjudication and disposition and to be provided with care and services in accordance with this chapter, Chapter 2, Child Welfare Services, and Chapter 2a, Removal and Protective Custody of a Child.

    (15) 

    (a)  If a child reenters the temporary custody or the custody of the division and the child is not placed with an individual who is a parent, relative, or friend, the division shall:

    (i)  notify the child’s former foster parents; and

    (ii)  upon a determination of the former foster parents’ willingness and ability to safely and appropriately care for the child, give the former foster parents preference for placement of the child.

    (b)  If, after the shelter hearing, the child is placed with an individual who is not a parent, a relative, a friend, or a former foster parent of the child, priority shall be given to a foster placement with a married couple, unless it is in the best interests of the child to place the child with a single foster parent.

    (16)  In determining the placement of a child, the juvenile court and the division may not take into account, or discriminate against, the religion of an individual with whom the child may be placed, unless the purpose of taking religion into account is to place the child with an individual or family of the same religion as the child.

    (17)  If the juvenile court’s decision differs from a child’s express wishes if the child is of sufficient maturity to articulate the wishes in relation to the child’s placement, the juvenile court shall make findings explaining why the juvenile court’s decision differs from the child’s wishes.

    (18)  This section does not guarantee that an identified relative or friend will receive custody of the child.

    (19) 

    (a)  If, for a relative placement, an interstate placement requested under the Interstate Compact on the Placement of Children has been initiated by the division or is ordered by or pending before the juvenile court, the court may not finalize a non-relative placement unless the court gives due weight to:

    (i)  the preferential consideration granted to a relative in Section 80-3-302;

    (ii)  the rebuttable presumption in Section 80-3-302; and

    (iii)  the division’s placement authority under Subsections 80-1-102(50) and 80-3-303(1).

    (b)  Nothing in this section affects the ability of a foster parent to petition the juvenile court under Subsection 80-3-502(3).

    Amended by Chapter 309, 2023 General Session
    Amended by Chapter 330, 2023 General Session

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