80-4-104. Judicial process for termination — Parent unfit or incompetent — Best interest of child.
| (1) |
Under both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child. For this reason, the termination of family ties by the state may only be done for compelling reasons. |
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Terms Used In Utah Code 80-4-104
- 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
- Child: means , except as provided in Section 80-2-905, an individual who is under 18 years old. See Utah Code 80-1-102
- Entitlement: A Federal program or provision of law that requires payments to any person or unit of government that meets the eligibility criteria established by law. Entitlements constitute a binding obligation on the part of the Federal Government, and eligible recipients have legal recourse if the obligation is not fulfilled. Social Security and veterans' compensation and pensions are examples of entitlement programs.
- 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.
- Natural parent: includes the minor's noncustodial parent. See Utah Code 80-1-102
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Process: means a writ or summons issued in the course of a judicial proceeding. See Utah Code 68-3-12.5
- 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
- Supported: means a finding by the Division of Child and Family Services based on the evidence available at the completion of an investigation, and separate consideration of each allegation made or identified during the investigation, that there is a reasonable basis to conclude that abuse, neglect, or dependency occurred. See Utah Code 80-1-102
- Temporary custody: means the same as that term is defined in Section 80-2-102. See Utah Code 80-4-102
- 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
- United States: includes each state, district, and territory of the United States of America. See Utah Code 68-3-12.5
| (2) |
The juvenile court shall provide a fundamentally fair process to a parent if a party moves to terminate the parent’s parental rights. |
| (3) |
If the party moving to terminate parental rights is a governmental entity, the juvenile court shall find that any actions or allegations made in opposition to the rights and desires of a parent regarding the parent’s child are supported by sufficient evidence to satisfy a parent’s constitutional entitlement to heightened protection against government interference with the parent’s fundamental rights and liberty interests. |
| (4) |
| (a) |
The fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child is recognized, protected, and does not cease to exist simply because:
| (i) |
a parent may fail to be a model parent; or |
| (ii) |
the parent’s child is placed in the temporary custody of the state. |
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| (b) |
The juvenile court should give serious consideration to the fundamental right of a parent to rear the parent’s child, and concomitantly, of the right of the child to be reared by the child’s natural parent. |
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| (5) |
At all times, a parent retains a vital interest in preventing the irretrievable destruction of family life. |
| (6) |
Before an adjudication of unfitness, government action in relation to a parent and a parent’s child may not exceed the least restrictive means or alternatives available to accomplish a compelling state interest. |
| (7) |
Until parental unfitness is established and the children suffer, or are substantially likely to suffer, serious detriment as a result, the child and the child’s parent share a vital interest in preventing erroneous termination of their relationship and the juvenile court may not presume that a child and the child’s parents are adversaries. |
| (8) |
It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents. Additionally, the integrity of the family unit and the right of parents to conceive and raise their children are constitutionally protected. For these reasons, the juvenile court should only transfer custody of a child from the child’s natural parent for compelling reasons and when there is a jurisdictional basis to do so. |
| (9) |
The right of a fit, competent parent to raise the parent’s child without undue government interference is a fundamental liberty interest that has long been protected by the laws and Constitution of this state and of the United States, and is a fundamental public policy of this state. |
| (10) |
| (a) |
The state recognizes that:
| (i) |
a parent has the right, obligation, responsibility, and authority to raise, manage, train, educate, provide for, and reasonably discipline the parent’s child; and |
| (ii) |
the state’s role is secondary and supportive to the primary role of a parent. |
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| (b) |
It is the public policy of this state that a parent retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of the parent’s child. |
| (c) |
The interests of the state favor preservation and not severance of natural familial bonds in situations where a positive, nurturing parent-child relationship can exist, including extended family association and support. |
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| (11) |
This chapter provides a judicial process for voluntary and involuntary severance of the parent-child relationship, designed to safeguard the rights and interests of all parties concerned and promote their welfare and that of the state. |
| (12) |
| (a) |
Wherever possible, family life should be strengthened and preserved, but if a parent is found, by reason of the parent’s conduct or condition, to be unfit or incompetent based upon any of the grounds for termination described in this part, the juvenile court shall then consider the welfare and best interest of the child of paramount importance in determining whether termination of parental rights shall be ordered. |
| (b) |
In determining whether termination is in the best interest of the child, and in finding that termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court shall consider, among other relevant factors, whether:
| (i) |
sufficient efforts were dedicated to reunification in accordance with Section 80-4-301; and |
| (ii) |
the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight. |
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Renumbered and Amended by Chapter 261, 2021 General Session
