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Department of Psychology

Removal of Child from Home Laws

John T. Ault, Ph.D.
Last updated: 1 March 2005 as posted on the Legislature Website

78-3a-301.   Court-ordered protective custody of a minor following petition filing -- Grounds.
     (1) After a petition has been filed under Subsection 78-3a-305(1), if the minor who is the subject of the petition is not in the protective custody of the division, a court may order that the minor be removed from the minor's home or otherwise taken into protective custody if the court finds, by a preponderance of the evidence, that any one or more of the following circumstances exist:
     (a) there is an imminent danger to the physical health or safety of the minor and the minor's physical health or safety may not be protected without removing the minor from the custody of the minor's parent or guardian;
     (b) a parent or guardian engages in or threatens the minor with unreasonable conduct that causes the minor to suffer emotional damage and there are no reasonable means available by which the minor's emotional health may be protected without removing the minor from the custody of the minor's parent or guardian;
     (c) the minor or another minor residing in the same household has been physically or sexually abused, or is considered to be at substantial risk of being physically or sexually abused, by a parent or guardian, a member of the parent's or guardian's household, or other person known to the parent or guardian;
     (d) the parent or guardian is unwilling to have physical custody of the minor;
     (e) the minor has been abandoned or left without any provision for the minor's support;
     (f) a parent or guardian who has been incarcerated or institutionalized has not arranged or cannot arrange for safe and appropriate care for the minor;
     (g) a relative or other adult custodian with whom the minor has been left by the parent or guardian is unwilling or unable to provide care or support for the minor, the whereabouts of the parent or guardian are unknown, and reasonable efforts to locate the parent or guardian have been unsuccessful;
     (h) the minor is in immediate need of medical care;
     (i) (i) a parent's or guardian's actions, omissions, or habitual action create an environment that poses a threat to the minor's health or safety; or
     (ii) a parent's or guardian's action in leaving a minor unattended would reasonably pose a threat to the minor's health or safety;
     (j) the minor or another minor residing in the same household has been neglected;
     (k) an infant has been abandoned, as defined in Section 78-3a-313.5;
     (l) the parent or guardian, or an adult residing in the same household as the parent or guardian, has been charged or arrested pursuant to Title 58, Chapter 37d, Clandestine Drug Lab Act, and any clandestine laboratory operation, as defined in Section 58-37d-3, was located in the residence or on the property where the minor resided; or
     (m) the minor's welfare is otherwise endangered.
     (2) (a) For purposes of Subsection (1)(a), if a minor has previously been adjudicated as abused, neglected, or dependent, and a subsequent incident of abuse, neglect, or dependency has occurred involving the same substantiated abuser or under similar circumstance as the previous abuse, that fact constitutes prima facie evidence that the minor cannot safely remain in the custody of the minor's parent.
     (b) For purposes of Subsection (1)(c):
     (i) another minor residing in the same household may not be removed from the home unless that minor is considered to be at substantial risk of being physically or sexually abused as described in Subsection (1)(c) or Subsection (2)(b)(ii); and
     (ii) if a parent or guardian has received actual notice that physical or sexual abuse by a person known to the parent has occurred, and there is evidence that the parent or guardian failed to protect the minor, after having received the notice, by allowing the minor to be in the physical presence of the alleged abuser, that fact constitutes prima facie evidence that the minor is at substantial risk of being physically or sexually abused.
     (3) In the absence of one of the factors described in Subsection (1), a court may not remove a minor from the parent's or guardian's custody on the basis of:
     (a) educational neglect;
     (b) mental illness or poverty of the parent or guardian; or
     (c) disability of the parent or guardian, as defined in Subsection 57-21-3(9).
     (4) A minor removed from the custody of the minor's parent or guardian under this section may not be placed or kept in a secure detention facility pending further court proceedings unless the minor is detainable based on guidelines promulgated by the Division of Juvenile Justice Services.
     (5) This section does not preclude removal of a minor from the minor's home without a warrant or court order under Section 62A-4a-202.1. (Amended 2004 General Session; Last revised December 21, 2004)

78-3a-305.   Petition filed -- Protective orders.
     (1) Any interested person may file a petition to commence proceedings in the juvenile court alleging that a minor is abused, neglected, or dependent. The person shall first make a referral with the division.
     (2) (a) If the child who is the subject of a petition was removed from his home by the Division of Child and Family Services that petition shall be filed on or before the date of the initial shelter hearing described in Section 78-3a-306.
     (b) If a petition is requested by the division, the attorney general shall file the petition within 72 hours of the completion of the investigation and request, excluding weekends and holidays, if:
     (i) the child who is the subject of the requested petition has not been removed from his home by the division; and
     (ii) without an expedited hearing and services ordered under the protective supervision of the court, the child will likely be taken into protective custody.
     (3) The petition shall be verified, and contain all of the following:
     (a) the name, age, and address, if any, of the minor upon whose behalf the petition is brought;
     (b) the names and addresses, if known to the petitioner, of both parents and any guardian of the minor;
     (c) a concise statement of facts, separately stated, to support the conclusion that the minor upon whose behalf the petition is being brought is abused, neglected, or dependent; and
     (d) a statement regarding whether the minor is in protective custody, and if so, the date and precise time the minor was taken into protective custody. (Amended by 2003 General Session; Last revised December 21, 2004)

78-3a-306 & 307. Shelter hearings.

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