Utah Code 80-3-409. Permanency hearing — Final plan — Petition for termination of parental rights filed — Hearing on termination of parental rights

80-3-409. Permanency hearing — Final plan — Petition for termination of parental rights filed — Hearing on termination of parental rights.

(1)

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Terms Used In Utah Code 80-3-409

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

Attorney guardian ad litem: means the same as that term is defined in Section 78A-2-801. 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

Child and family plan: means a written agreement between a child's parents or guardian and the Division of Child and Family Services as described in Section 80-3-307. 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

Division: means the Division of Child and Family Services created in Section 80-2-201. See Utah Code 80-3-102

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.

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:

(a)

marriage;

(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

Minor: means , except as provided in Sections 80-6-501, 80-6-901, and 80-7-102:

(a)	a child; or

(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;

(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

(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

Person: means :Utah Code 68-3-12.5

Protective supervision: means a legal status created by court order, following an adjudication on the ground of abuse, neglect, or dependency, whereby:

(a)	the minor is permitted to remain in the minor's home; and

(b)

supervision and assistance to correct the abuse, neglect, or dependency is provided by an agency designated by the juvenile court. 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

Sibling: means the same as that term is defined in Section 80-2-102. See Utah Code 80-3-102

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

Termination of parental rights: means the permanent elimination of all parental rights and duties, including residual parental rights and duties, by court order. See Utah Code 80-1-102

(a)

If reunification services are ordered under Section 80-3-406, with regard to a minor who is in the custody of the division, the juvenile court shall hold a permanency hearing no later than 12 months after the day on which the minor is initially removed from the minor’s home.

(b)	If reunification services are not ordered at the dispositional hearing, the juvenile court shall hold a permanency hearing within 30 days after the day on which the dispositional hearing ends.

(2)

(a)	If reunification services are ordered in accordance with Section 80-3-406, the juvenile court shall, at the permanency hearing, determine, consistent with Subsection (3), whether the minor may safely be returned to the custody of the minor’s parent.

(b)	If the juvenile court finds, by a preponderance of the evidence, that return of the minor to the minor’s parent would create a substantial risk of detriment to the minor’s physical or emotional well-being, the minor may not be returned to the custody of the minor’s parent.

(c)

Prima facie evidence that return of the minor to a parent or guardian would create a substantial risk of detriment to the minor is established if:

(i)

the parent or guardian fails to:

(A)	participate in a court approved child and family plan;

(B)	comply with a court approved child and family plan in whole or in part; or

(C)	meet the goals of a court approved child and family plan; or

(ii)

the minor’s natural parent:

(A)	intentionally, knowingly, or recklessly causes the death of another parent of the minor;

(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 minor; or

(C)	is being prosecuted for or has been convicted of intentionally, knowingly, or recklessly causing the death of another parent of the minor.

(3)

In making a determination under Subsection (2)(a), the juvenile court shall:

(a)

review and consider:

(i)	the report prepared by the division;

(ii)	in accordance with the Utah Rules of Evidence, any admissible evidence offered by the minor’s attorney guardian ad litem;

(iii)

any report submitted by the division under Subsection 80-3-408(3)(a)(i);

(iv)	any evidence regarding the efforts or progress demonstrated by the parent; and

(v)	the extent to which the parent cooperated and used the services provided; and

(b)

attempt to keep the minor’s sibling group together if keeping the sibling group together is:

(i)	practicable; and

(ii)	in accordance with the best interest of the minor.

(4)

With regard to a case where reunification services are ordered by the juvenile court, if a minor is not returned to the minor’s parent or guardian at the permanency hearing, the juvenile court shall, unless the time for the provision of reunification services is extended under Subsection (7):

(a)	order termination of reunification services to the parent;

(b)	make a final determination regarding whether termination of parental rights, adoption, or permanent custody and guardianship is the most appropriate final plan for the minor, taking into account the minor’s primary permanency plan established by the juvenile court under Section 80-3-406; and

(c)	in accordance with Subsection 80-3-406(2), establish a concurrent permanency plan that identifies the second most appropriate final plan for the minor, if appropriate.

(5)

The juvenile court may order another planned permanent living arrangement other than reunification for a minor who is 16 years old or older upon entering the following findings:

(a)	the division has documented intensive, ongoing, and unsuccessful efforts to reunify the minor with the minor’s parent or parents, or to secure a placement for the minor with a guardian, an adoptive parent, or an individual described in Subsection 80-3-301(6)(e);

(b)	the division has demonstrated that the division has made efforts to normalize the life of the minor while in the division’s custody, in accordance with Section 80-2-308;

(c)	the minor prefers another planned permanent living arrangement; and

(d)	there is a compelling reason why reunification or a placement described in Subsection (5)(a) is not in the minor’s best interest.

(6)	Except as provided in Subsection (7), the juvenile court may not extend reunification services beyond 12 months after the day on which the minor is initially removed from the minor’s home, in accordance with the provisions of Section 80-3-406.

(7)

(a)

Subject to Subsection (7)(b), the juvenile court may extend reunification services for no more than 90 days if the juvenile court finds, beyond a preponderance of the evidence, that:

(i)	there has been substantial compliance with the child and family plan;

(ii)	reunification is probable within that 90-day period; and

(iii)

the extension is in the best interest of the minor.

(b)

(i)	Except as provided in Subsection (7)(c), the juvenile court may not extend any reunification services beyond 15 months after the day on which the minor is initially removed from the minor’s home.

(ii)	Delay or failure of a parent to establish paternity or seek custody does not provide a basis for the juvenile court to extend services for the parent beyond the 12-month period described in Subsection (6).

(c)

In accordance with Subsection (7)(d), the juvenile court may extend reunification services for one additional 90-day period, beyond the 90-day period described in Subsection (7)(a), if:

(i)

the juvenile court finds, by clear and convincing evidence, that:

(A)	the parent has substantially complied with the child and family plan;

(B)	it is likely that reunification will occur within the additional 90-day period; and

(C)	the extension is in the best interest of the minor;

(ii)	the juvenile court specifies the facts upon which the findings described in Subsection (7)(c)(i) are based; and

(iii)

the juvenile court specifies the time period in which it is likely that reunification will occur.

(d)	A juvenile court may not extend the time period for reunification services without complying with the requirements of this Subsection (7) before the extension.

(e)	In determining whether to extend reunification services for a minor, a juvenile court shall take into consideration the status of the minor siblings of the minor.

(8)

(a)

At the permanency hearing, if a child remains in an out-of-home placement, the juvenile court shall:

(i)	make specific findings regarding the conditions of parent-time that are in the child’s best interest; and

(ii)	if parent-time is denied, state the facts that justify the denial.

(b)

Parent-time shall be under the least restrictive conditions necessary to:

(i)	protect the physical safety of the child; or

(ii)	prevent the child from being traumatized by contact with the parent due to the child’s fear of the parent in light of the nature of the alleged abuse or neglect.

(c)

(i)

The division or the person designated by the division or a court to supervise a parent-time session may deny parent-time for the session if the division or the supervising person determines that, based on the parent’s condition, it is necessary to deny parent-time to:

(A)	protect the physical safety of the child;

(B)	protect the life of the child; or

(C)	consistent with Subsection (8)(c)(ii), prevent the child from being traumatized by contact with the parent.

(ii)

In determining whether the condition of the parent described in Subsection (8)(c)(i) will traumatize a child, the division or the person supervising the parent-time session shall consider the impact that the parent’s condition will have on the child in light of:

(A)	the child’s fear of the parent; and

(B)	the nature of the alleged abuse or neglect.

(9)

The juvenile court may, in the juvenile court’s discretion:

(a)	enter any additional order that the juvenile court determines to be in the best interest of the minor, so long as that order does not conflict with the requirements and provisions of Subsections (4) through (8); or

(b)	order the division to provide protective supervision or other services to a minor and the minor’s family after the division’s custody of a minor is terminated.

(10)

(a)	If the final plan for the minor is to proceed toward termination of parental rights, the petition for termination of parental rights shall be filed, and a pretrial held, within 45 calendar days after the day on which the permanency hearing is held.

(b)	If the division opposes the plan to terminate parental rights, the juvenile court may not require the division to file a petition for the termination of parental rights, except as required under Subsection 80-4-203(2).

(11)

(a)	Any party to an action may, at any time, petition the juvenile court for an expedited permanency hearing on the basis that continuation of reunification efforts are inconsistent with the permanency needs of the minor.

(b)

If the juvenile court so determines, the juvenile court shall order, in accordance with federal law, that:

(i)	the minor be placed in accordance with the permanency plan; and

(ii)	whatever steps are necessary to finalize the permanent placement of the minor be completed as quickly as possible.

(12)

Nothing in this section may be construed to:

(a)	entitle any parent to reunification services for any specified period of time;

(b)	limit a juvenile court’s ability to terminate reunification services at any time before a permanency hearing; or

(c)

limit or prohibit the filing of a petition for termination of parental rights by any party, or a hearing on termination of parental rights, at any time before a permanency hearing provided that relative placement and custody options have been fairly considered in accordance with Sections 80-2a-201 and 80-4-104.

(13)

(a)	Subject to Subsection (13)(b), if a petition for termination of parental rights is filed before the date scheduled for a permanency hearing, the juvenile court may consolidate the hearing on termination of parental rights with the permanency hearing.

(b)

For purposes of Subsection (13)(a), if the juvenile court consolidates the hearing on termination of parental rights with the permanency hearing:

(i)	the juvenile court shall first make a finding regarding whether reasonable efforts have been made by the division to finalize the permanency plan for the minor; and

(ii)	any reunification services shall be terminated in accordance with the time lines described in Section 80-3-406.

(c)	The juvenile court shall make a decision on a petition for termination of parental rights within 18 months after the day on which the minor is initially removed from the minor’s home.

(14)

(a)	If a juvenile court determines that a minor will not be returned to a parent of the minor, the juvenile court shall consider appropriate placement options inside and outside of the state.

(b)	In considering appropriate placement options under Subsection (14)(a), the juvenile court shall provide preferential consideration to a relative’s request for placement of the minor.

(15)

(a)

In accordance with Section 80-3-108, if a minor 14 years old or older desires an opportunity to address the juvenile court or testify regarding permanency or placement, the juvenile court shall give the minor’s wishes added weight, but may not treat the minor’s wishes as the single controlling factor under this section.

(b)

If the juvenile court’s decision under this section differs from a minor’s express wishes if the minor is of sufficient maturity to articulate the wishes in relation to permanency or the minor’s placement, the juvenile court shall make findings explaining why the juvenile court’s decision differs from the minor’s wishes.

(16)

(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 320, 2023 General Session

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