Human Services, Child and Family Services

Rule R512-31

Foster Parent Due Process

Notice of Proposed Rule

(Amendment)

DAR File No.: 33763
Filed: 06/15/2010 10:29:19 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being changed to reflect changes to Utah Statute per H.B. 170 from the 2010 Legislative General Session. (DAR NOTE: H.B. 170 (2010) is found at Chapter 56, Laws of Utah 2010, and was effective 05/11/2010.)

Summary of the rule or change:

The proposed changes to this rule specify due process rights of foster parents when a child in out-of-home care is removed from their home.

State statutory or constitutional authorization for this rule:

• Section 62A-4a-102
• Section 62A-4a-206
• Section 78A-6-318
• Section 62A-4a-105
• Section 63G-4-201

Anticipated cost or savings to:

the state budget:

There will be no increase in costs or savings to the state budget because these proposed changes clarify practice, but do not increase workload that would require additional staff or other costs.

local governments:

There will be no increase in costs or savings to local government because this rule does not apply to local government.

small businesses:

There will be no increase in costs or savings to small businesses because this rule does not apply to small businesses.

persons other than small businesses, businesses, or local governmental entities:

There will be no increase in costs or savings to persons other than small businesses, businesses, or local government entities because this rule does not apply to persons other than small businesses, businesses, or local government entities.

Compliance costs for affected persons:

There are no compliance costs for affected persons associated with implementing the changes to this rule.

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no cost or savings to businesses.

Lisa-Michele Church, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Child and Family Services
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Carol Miller at the above address, by phone at 801-557-1772, by FAX at 801-538-3993, or by Internet E-mail at carolmiller@utah.gov
• Julene Jones at the above address, by phone at 801-538-4521, by FAX at 801-538-4424, or by Internet E-mail at jhjones@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/02/2010

This rule may become effective on:

08/09/2010

Authorized by:

Brent Platt, Director

R512. Human Services, Child and Family Services.

R512-31. Foster Parent Due Process.

R512-31-1. Purpose and Authority.

(1) The purpose of this rule is to define the due process rights of foster parents when a decision is made to remove a foster child from their home.

(2) This rule is authorized by Section 62A-4a-102.

 

R512-31-[3]2 . Definitions.

(1) For the purpose of this rule, the following definitions apply:

(a) "Child and Family Services" means the Division of Child and Family Services.

(b) "Emergency foster care" means temporary placement of a child in a foster home or crisis placement.

(c) "Natural parent" means a child's biological or adoptive parent, and includes a child's noncustodial parent.

(d) "Removal" means taking a child from a foster home for the purpose of placing the child in another foster home or facility, or not returning a child who has run from a foster home back to that foster home.

 

R512-31-[2]3 . Due Process Rights.

(1) As authorized by Section 62A-4a-206, a foster parent has a right to due process when a decision is made to remove a foster child from their home if the foster parent disagrees with the decision, [except if the child is being returned to the natural parent.]unless the removal is for the purpose of:

(a) Returning the child to the child's natural parent or legal guardian.

(b) Immediately placing the child in an approved adoptive home.

(c) Placing the child with a relative, as defined in Subsection 78A-6-307(1)(b), who obtained custody or asserted an interest in the child within the preference period described in Subsection 78A-6-307(18)(a).

(d) Placing an Indian child in accordance with preplacement preferences and other requirements described in the Indian Child Welfare Act, 25 U.S.C., Section 1915.

 

R512-31-4. Notice to Foster Parents.

(1) A foster parent shall be notified that a foster child in the foster parent's care is to be moved to another placement ten days prior to removal, unless there is a reasonable basis to believe that immediate removal is necessary, as specified in R512-31-4(4). The foster parent shall be notified by personal communication and by Notice of Agency Action.

(2) The Notice of Agency Action shall be sent by certified mail, return receipt requested, or personally delivered.

(3) In addition to requirements specified in Section 63G-4-201, the Notice of Agency Action shall include the date of removal, the reason for removal, a description of the foster parent conflict resolution procedure, and notice regarding the ability of the foster parent to petition [the juvenile court directly]the juvenile court judge currently assigned to the case if the child has been in the foster home for 12 months or longer in accordance with Section 78A-6-318.

(4) If there is a reasonable basis to believe that the child is in danger or that there is a substantial threat of danger to the health or welfare of the child, the notification to the foster parent may occur after removal of the child. Notification shall be provided through personal communication on the day of removal and by Notice of Agency Action. The Notice of Agency Action shall be sent by certified mail, return receipt requested, within three working days of removal of the child.

 

R512-31-5. Request for Due Process.

(1) The foster parent shall submit a written request for a hearing prior to removal of the child from the home, unless the child was removed as specified in Rule R512-31-4(4). The request shall be sent to the entity specified in the Notice of Agency Action.

(2) If the child was removed as specified in Rule R512-31-4(4), the foster parent shall submit a written request for a hearing no later than ten days after receiving the Notice of Agency Action.

(3) Prior to a hearing being granted, an attempt to resolve the conflict shall be made as specified in Rule R512-31-(6)(1)(a) and Rule R512-31-(6)(1)(b).

 

R512-31-6. Foster Parent Conflict Resolution Procedure.

(1) The Foster Parent Conflict Resolution Procedure consists of the following:

(a) A foster parent must first attempt to resolve a conflict with Child and Family Services informally through discussion with the caseworker or supervisor. If a conflict is not resolved through informal discussion, an agency conference may be requested by the foster parent.

(b) The foster parent shall have the opportunity to provide written and oral comments to Child and Family Services in an agency conference chaired by the regional director or designee. The agency conference shall include the foster parent, foster care caseworker, and the caseworker's supervisor, and may include other individuals at the request of the foster parent or caseworker.

(c) If the foster parent is not satisfied with the results of the agency conference with Child and Family Services, the foster parent shall have the opportunity to request a review, to be held before removal of the child, by a third party neutral fact finder. If the child has been placed with the foster parents for a period of at least two years, the foster parent may request a review to be held before removal of the child, by:

(i) The juvenile court judge currently assigned to the child's case, or

(ii) If the juvenile court judge currently assigned to the child's case is not available, another juvenile court judge.

[(c)](d) If the foster parent is not satisfied with the results of the agency conference with Child and Family Services and a foster child is to be removed from the foster home, an administrative hearing shall be held through the Department of Human Services, Office of Administrative Hearings. The Office of Administrative Hearings shall serve as the neutral fact finder required by Subsection 62A-4a-206(2)(b)(ii).

 

R512-31-7. Administrative Hearing.

(1) An administrative hearing regarding removal of a child from a foster home for another placement shall be conducted in accordance with Rule R497-100. The Administrative Law Judge shall determine if Child and Family Services has abused its discretion in removing the child from the foster home, i.e., the decision was arbitrary and capricious.

(2) If there is a criminal investigation of the foster parent in progress relevant to the reason for removal of the child, no administrative hearing shall be granted until the criminal investigation is completed and, if applicable, charges are filed against the foster parent.

(3) If there is an investigation for child abuse, neglect, or dependency involving the foster home, no administrative hearing shall be granted until the investigation is completed.

 

R512-31-8. Removal of a Foster Child.

(1) The foster child shall remain in the foster home until the conflict resolution procedure specified in Rule R512-31-6 is completed, unless the child was removed as specified in Rule R512-31.4(4). The time frame for the conflict resolution procedure shall not exceed 45 days.

(2) If the child was removed as specified in Rule R512-31.4(4), the child shall be placed in emergency foster care until the conflict is resolved or a final determination is made by the Office of Administrative Hearings as required by Subsection 62A-4a-206(2)(c).

 

KEY: child welfare, foster care, due process

Date of Enactment or Last Substantive Amendment: [February 9], 2010

Notice of Continuation: August 7, 2007

Authorizing, and Implemented or Interpreted Law: 62A-41-102; 62A-4a-105; 62A-4a-206; 63G-4-201; 78A-6-318