House Bill No. 203

Introduced By r. johnson

A Bill for an Act entitled: "An Act generally revising child abuse and neglect laws; defining best interests of the child; providing for a petition for long-term legal custody; providing for a permanency plan hearing; amending sections 40-8-111, 41-3-102, 41-3-202, 41-3-204, 41-3-303, 41-3-401, 41-3-402, 41-3-403, 41-3-404, 41-3-406, 41-3-607, 41-3-609, 41-4-102, and 41-5-530, MCA; repealing sections 41-3-410 and 41-3-603, MCA; and providing effective dates and a termination AN APPLICABILITY date."

Be it enacted by the Legislature of the State of Montana:

SECTION 

•   SECTION 40-8-111, MCA, IS AMENDED TO READ:

"40-8-111.   Consent required for adoption. (1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by:

(a)  both parents, if living, or the surviving parent of a child, provided that consent is not required from a father or mother:

(i)  adjudged guilty by a court of competent jurisdiction of assault on a child, as provided in 45-5-201; sexual assault on a child, as provided in 45-5-502; sexual intercourse without consent, as provided in 45-5-503, if the victim was a child; incest, as provided in 45-5-507, if the victim was a child; endangering the welfare of children, concerning a child, as provided in 45-5-622; sexual abuse of children, toward a child, as provided in 45-5-625; or ritual abuse of a minor, as provided in 45-5-627;

(ii) who has been judicially deprived of the custody of the child on account of cruelty or neglect toward the child;

(iii) who has, in the state of Montana or in any other state of the United States, willfully abandoned the child, as defined in 41-3-102(7)(e)(8)(e);

(iv) who has caused the child to be maintained by any public or private children's institution, any charitable agency, or any licensed adoption agency or the department of public health and human services of the state of Montana for a period of 1 year without contributing to the support of the child during that period, if able;

(v)  if it is proved to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption; or

(vi) whose parental rights have been judicially terminated;

(b)  the legal guardian of the child if both parents are dead or if the rights of the parents have been terminated by judicial proceedings and the guardian has authority by order of the court appointing the guardian to consent to the adoption;

(c)  the executive head of an agency if the child has been relinquished for adoption to the agency or if the rights of the parents have been judicially terminated or if both parents are dead and custody of the child has been legally vested in the agency with authority to consent to adoption of the child; or

(d)  any person having legal custody of a child by court order if the parental rights of the parents have been judicially terminated. In that case, the court having jurisdiction of the custody of the child shall consent to adoption and a certified copy of its order must be attached to the petition.

(2)  The consents required by subsections (1)(a) and (1)(b) must be acknowledged before an officer authorized to take acknowledgments or witnessed by a representative of the department of public health and human services or of an agency or witnessed by a representative of the court."





Section 

•   Section 41-3-102, MCA, is amended to read:

"41-3-102.   Definitions. As used in this chapter, the following definitions apply:

(1)  "A person responsible for a child's welfare" means:

(a) the child's parent, guardian, or foster parent OR AN ADULT WHO RESIDES IN THE SAME HOME IN WHICH THE CHILD RESIDES;

(b)  a staff person providing care in a day-care facility;

(c)  an employee of a public or private residential institution, facility, home, or agency; or

(d)  any other person legally responsible for the child's welfare in a residential setting.

(2)  "Abused or neglected" means the state or condition of a child who has suffered child abuse or neglect.

(3)  (a) "Adequate health care" means any medical care, including the prevention of the withholding of medically indicated treatment or medically indicated psychological care permitted or authorized under state law.

(b)  This chapter may not be construed to require or justify a finding of child abuse or neglect for the sole reason that a parent or guardian, due to religious beliefs, does not provide medical care for a child. However, this chapter may not be construed to limit the administrative or judicial authority of the state to ensure that medical care is provided to the child when there is imminent or substantial risk of harm to the child.

(c)  The term does not include self-defense, defense of others, or action taken to prevent the child from self-harm that does not constitute harm to a child's health or welfare.

(4) "BEST INTERESTS OF THE CHILD" MEANS THE PHYSICAL, MENTAL, AND EMOTIONAL CONDITIONS AND NEEDS OF THE CHILD AND ANY OTHER FACTOR CONSIDERED BY THE COURT TO BE RELEVANT TO THE CHILD.

(4)(5)  "Child" or "youth" means any person under 18 years of age.

(5)(6)  (a) "Child abuse or neglect" means:

(i)  harm to a child's health or welfare; or

(ii) threatened harm to a child's health or welfare.

(b)  The term includes harm or threatened harm to a child's health or welfare by the acts or omissions of a person responsible for the child's welfare.

(6)(7)  "Department" means the department of public health and human services provided for in 2-15-2201.

(7)(8)  "Harm to a child's health or welfare" means the harm that occurs whenever the parent or other person responsible for the child's welfare:

(a)  inflicts or allows to be inflicted upon the child physical or mental injury;

(b)  commits or allows to be committed sexual abuse or exploitation of the child;

(c)  induces or attempts to induce a child into giving untrue testimony that the child or another child was abused or neglected by a parent or person responsible for the child's welfare;

(d)  causes failure to thrive or otherwise fails to supply the child with adequate food or fails to supply clothing, shelter, education, or adequate health care, though financially able to do so or offered financial or other reasonable means to do so;

(e)  abandons the child by leaving the child under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or willfully surrenders physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child; or

(f)  is unknown and has been unknown for a period of 90 days and reasonable efforts to identify and locate the parents parent or other person have failed.

(8)(9)  "Limited emancipation" means a status conferred on a youth by a court after a dispositional hearing in accordance with 41-3-406 under which the youth is entitled to exercise some but not all of the rights and responsibilities of a person who is 18 years of age or older.

(9)(10)  "Mental injury" means an identifiable and substantial impairment of the child's intellectual or psychological functioning.

(10)(11) "Parent" means a biological or adoptive parent or stepparent.

(11)(12) "Parent-child legal relationship" means the legal relationship that exists between a child and the child's birth or adoptive parents, as provided in Title 40, chapter 6, part 2, unless the relationship has been terminated by competent judicial decree as provided in 40-6-135, 40-6-234, 40-8-109, 40-8-117, or in part 6 of this chapter.

(11)(12)(13) "Physical injury" means death, permanent or temporary disfigurement, or impairment of any bodily organ or function. The term includes death, permanent or temporary disfigurement, and impairment of a bodily organ or function sustained as a result of excessive corporal punishment.

(12)(13)(14) (a) "Sexual abuse" means the commission of sexual assault, sexual intercourse without consent, indecent exposure, deviate sexual conduct, or incest, as described in Title 45, chapter 5, part 5.

(b)  Sexual abuse does not include any necessary touching of an infant's or toddler's genital area while attending to the sanitary or health care needs of that infant or toddler by a parent or other person responsible for the child's welfare.

(13)(14)(15) "Sexual exploitation" means allowing, permitting, or encouraging a child to engage in a prostitution offense, as described in 45-5-601 through 45-5-603, or allowing, permitting, or encouraging sexual abuse of children as described in 45-5-625.

(14)(15)(16) "Social worker" means an employee of the department who, prior to before the employee's field assignment, has been educated or trained or is receiving education or training in a program of social work or a related field that includes cognitive and family systems treatment or who has equivalent verified experience or verified training in the investigation of child abuse, neglect, and endangerment. This definition does not apply to any provision of this code that is not in this chapter.

(15)(16)(17) "Threatened harm to a child's health or welfare" means substantial risk of harm to the child's health or welfare.

(17)(18) "Treatment plan" means a written agreement between the department or court and the parent or guardian OR A COURT ORDER that includes action that must be taken to resolve the condition or conduct of the parent or guardian that resulted in the need for protective services for the child. The treatment plan may involve other parties, if necessary, for protective services.

(16)(18)(19) (a) "Withholding of medically indicated treatment" means the failure to respond to an infant's life-threatening conditions by providing treatment, including appropriate nutrition, hydration, and medication, that, in the treating physician's or physicians' reasonable medical judgment, will be most likely to be effective in ameliorating or correcting the conditions.

(b)  The term does not include the failure to provide treatment, other than appropriate nutrition, hydration, or medication, to an infant when, in the treating physician's or physicians' reasonable medical judgment:

(i)  the infant is chronically and irreversibly comatose;

(ii) the provision of treatment would:

(A)  merely prolong dying;

(B)  not be effective in ameliorating or correcting all of the infant's life-threatening conditions; or

(C)  otherwise be futile in terms of the survival of the infant; or

(iii) the provision of treatment would be virtually futile in terms of the survival of the infant and the treatment itself under the circumstances would be inhumane. For purposes of this subsection (16) (18) (19), "infant" means an infant less than 1 year of age or an infant 1 year of age or older who has been continuously hospitalized since birth, who was born extremely prematurely, or who has a long-term disability. The reference to less than 1 year of age may not be construed to imply that treatment should be changed or discontinued when an infant reaches 1 year of age or to affect or limit any existing protections available under state laws regarding medical neglect of children over 1 year of age or older.

(17)(19)(20) "Youth in need of care" means a youth who is abused or neglected."





Section 

•   Section 41-3-202, MCA, is amended to read:

"41-3-202.   Action on reporting. (1) Upon receipt of a report, as required by 41-3-201, that a child is or has been abused or neglected, a social worker, the county attorney, or a peace officer shall promptly conduct a thorough investigation into the home of the child involved or any other place where the child is present, into the circumstances surrounding the injury of the child, and into all other nonfinancial matters that in the discretion of the investigator are relevant to the investigation. In conducting an investigation under this section, a social worker may not inquire into the financial status of the child's family or of any other person responsible for the child's care, except as necessary to ascertain eligibility for federal assistance programs or to comply with the provisions of 41-3-406 [section 12 10].

(2)  An initial investigation into the home of the child may be conducted when an anonymous report is received. However, the investigation must within 48 hours develop independent, corroborative, and attributable information in order for the investigation to continue. Without the development of independent, corroborative, and attributable information, a child may not be removed from the home.

(3)  The social worker is responsible for assessing the family and planning for the child. If the child is treated at a medical facility, the social worker, county attorney, or peace officer, consistent with reasonable medical practice, has the right of access to the child for interviews, photographs, and securing physical evidence and has the right of access to relevant hospital and medical records pertaining to the child. If considered appropriate by the social worker, county attorney, or peace officer conducting an interview of the child, an employee of the public school attended by the child involved may participate in any interview of the child if the child is enrolled in kindergarten through 8th grade.

(4)  If the child's interview is videotaped, an unedited videotape with audio track must be made available, upon request, for unencumbered review by the family.

(5)  (a) If from the investigation it appears that the child suffered abuse or neglect, the department shall provide protective services to the child pursuant to 41-3-301 and may provide protective services to any other child under the same care. The department shall advise the county attorney and the child's family of its investigation.

(b)  If from the investigation it appears that the child has not suffered abuse or neglect and the initial report is determined to be unfounded, the department shall destroy all records concerning the report and the investigation. The destruction must be completed within 20 days of the determination that the child has not suffered abuse or neglect.

(6)  The investigating social worker, within 60 days of commencing an investigation, shall also furnish a written report to the department and, upon request, to the family. Subject to subsection (5)(b), the department shall maintain a record system containing child abuse and neglect cases.

(7)  Any person reporting abuse or neglect that involves acts or omissions on the part of a public or private residential institution, home, facility, or agency is responsible for ensuring that the report is made to the department, its local affiliate, and the county attorney of the county in which the facility is located."





Section 

•   Section 41-3-204, MCA, is amended to read:

"41-3-204.   Admissibility and preservation of evidence. (1) In any proceeding resulting from a report made pursuant to the provisions of this chapter or in any proceeding for which the report or its contents are sought to be introduced into evidence, the report or its contents or any other fact related to the report or to the condition of the child who is the subject of the report may not be excluded on the ground that the matter is or may be the subject of a privilege related to the examination or treatment of the child and granted in Title 26, chapter 1, part 8, except the attorney-client privilege granted by 26-1-803.

(2)  Any person or official required to report under 41-3-201 may take or cause to be taken photographs of the area of trauma visible on a child who is the subject of a report. The cost of photographs taken under this section must be paid by the department.

(3)  When any person required to report under 41-3-201 finds visible evidence that a child has suffered abuse or neglect, the person shall include in the report either a written description or photographs of the evidence.

(4)  A physician, either in the course of providing medical care to a minor or after consultation with child protective services, the county attorney, or a law enforcement officer, may require x-rays to be taken when, in the physician's professional opinion, there is a need for radiological evidence of suspected abuse or neglect. X-rays may be taken under this section without the permission of the parent or guardian. The cost of the x-rays ordered and taken under this section must be paid by the county child protective service agency.

(5)  All written, photographic, or radiological evidence gathered under this section must be sent to the local affiliate of the department at the time that the written confirmation report is sent or as soon after the report is sent as is possible. If a confirmation report is not made, the evidence and the initial report must be destroyed as provided in 41-3-202(3)(b)(5)(b)."





Section 

•   Section 41-3-303, MCA, is amended to read:

"41-3-303.   Guardian ad litem. (1) In every judicial proceeding, the court shall appoint for any child alleged to be abused or neglected a guardian ad litem. The department or any of its staff may not be appointed as the guardian ad litem in a judicial proceeding under this title. When necessary the guardian ad litem may serve at public expense.

(2)  The guardian ad litem is charged with the representation of the child's best interests. The guardian ad litem has the following general duties:

(a)  to conduct investigations that the guardian ad litem considers necessary to ascertain the facts constituting the alleged abuse or neglect;

(b)  to interview or observe the child who is the subject of the proceeding;

(c)  to have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child's siblings and parents or custodians;

(d)  to make written reports to the court concerning the child's welfare;

(e)  to appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child's welfare; and

(f)  to perform other duties as directed by the court."





NEW SECTION. Section 5.  Best interests of the child. The best interests of the child, as referred to in this chapter, must be determined by considering all relevant factors, including but not limited to:

(1) the wishes of the child's parent or guardian;

(2) the wishes of the child who is 12 years of age or older;

(3) the interaction and interrelationship of the child with the child's parents and siblings and with any other person who may significantly affect the child's best interests;

(4) the mental and physical health of all individuals involved;

(5) the child's needs of home, school, and community;

(6) physical abuse or threat of physical abuse by one parent or guardian against the other parent or guardian or the child; and

(7) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent or guardian.





Section 

•   Section 41-3-401, MCA, is amended to read:

"41-3-401.   Abuse and neglect petitions. (1) The county attorney, attorney general, or an attorney hired by the county is responsible for filing all petitions alleging abuse or neglect. The county attorney, the attorney general, or an attorney hired by the department with the written consent of the county attorney or the attorney general may require all state, county, and municipal agencies, including law enforcement agencies, to conduct the investigations and furnish reports that may be necessary.

(2)  Upon receipt of a petition, EXCEPT A PETITION FOR TEMPORARY INVESTIGATIVE AUTHORITY, the court shall set a date for an adjudicatory hearing on the petition. The petitions must be given preference by the court in setting hearing dates.

(3)  A petition alleging abuse or neglect is a civil action brought in the name of the state of Montana. The Montana Rules of Civil Procedure apply except as modified in this part. Proceedings under a petition are not a bar to criminal prosecution.

(4)  The parents or parent, guardian, or other person or agency having legal custody of the youth named in the petition, if residing in the state, must be served personally with a copy of the petition and summons at least 5 days prior to before the date set for hearing. If the person or agency cannot be served personally, the person or agency may be served by publication in the manner provided by the Montana Rules of Civil Procedure for other types of proceedings.

(5)  If personal service cannot be made upon the parents or parent, guardian, or other person or agency having legal custody, the court shall appoint an attorney to represent the unavailable party when in the opinion of the court the interests of justice require.

(6)  If a parent of the child is a minor, notice must be given to the minor parent's parents or guardian, and if there is no guardian the court shall appoint one.

(7)  Any person interested in any cause under this chapter has the right to appear.

(8)  Except when the proceeding is instituted or commenced at the request of the department of public health and human services, a citation must be issued and served upon a representative of the department prior to before the court hearing.

(9)  The petition must:

(a)  state the nature of the alleged abuse or neglect;

(b)  state the full name, age, and address of the youth and the name and address of the youth's parents or guardian or person having legal custody of the youth;

(c)  state the names, addresses, and relationship to the youth of all persons who are necessary parties to the action.

(10) The petition may ask for the following relief:

(a)  temporary investigative authority and protective services, as provided in 41-3-402;

(b)  temporary legal custody, as provided in 41-3-406;

(c) long-term legal custody, as provided in [section 13];

(c)(d)(C)  termination of the parent-child legal relationship and permanent legal custody with the right to consent to adoption, as provided in 41-3-607;

(d)(e)(D)  any combination of the provisions of subsections (10)(a) through (10)(c) (10)(d) (10)(C) or any other relief that may be required for the best interest interests of the youth CHILD.

(11) The court, in an order granting or denying relief, shall make a finding regarding the reasonableness of agency efforts to rehabilitate the family to prevent the child's removal from the home.

(11)(12)(11) The petition may be modified for different relief at any time within the discretion of the court.

(13) The court may dismiss a petition or provide other sanctions for failure to meet a time requirement set forth in Title 41, chapter 3.

(12)(14)(12) The court may at any time on its own motion or the motion of any party appoint counsel for any indigent party."





Section 7.  Section 41-3-402, MCA, is amended to read:

"41-3-402.   Petition for temporary investigative authority and protective services. (1) In a case in which it appears that a youth is abused or neglected or is in danger of being abused or neglected, the county attorney, the attorney general, or an attorney hired by the county may file a petition for temporary investigative authority and protective services.

(2)  A petition for temporary investigative authority and protective services must state the specific authority requested and the facts establishing probable cause that a youth is abused or neglected or is in danger of being abused or neglected.

(3)  The petition for temporary investigative authority and protective services must be supported by an affidavit signed by the county attorney, the attorney general, or an attorney hired by the county or must be supported by a department of public health and human services report stating in detail the facts upon which the request is based.

(4) An order for temporary investigative authority and protective services must be issued for a period not longer than 90 days following the show cause hearing and must be limited to one extension of an additional 90 days unless the petitioner and respondent parent or guardian have consented in writing. Before the expiration of the time provided for in an order for temporary investigative authority and protective services the county attorney, the attorney general, or an attorney hired by the county must file a petition for one of the following:

(a) limited emancipation;

(b) temporary legal custody;

(c) long-term legal custody;

(d) termination of the parent-child legal relationship and permanent legal custody with the right to consent to adoption; or

(e) dismissal.

(5) The court may continue an order for temporary investigative authority pending a hearing on a petition provided for in subsection (4)."





Section 8.  Section 41-3-402, MCA, is amended to read:

"41-3-402.   Petition for temporary investigative authority and protective services. (1) In a case in which it appears that a youth is abused or neglected or is in danger of being abused or neglected, the county attorney, the attorney general, or an attorney hired by the county may file a petition for temporary investigative authority and protective services.

(2)  A petition for temporary investigative authority and protective services must state the specific authority requested and the facts establishing probable cause that a youth is abused or neglected or is in danger of being abused or neglected.

(3)  The petition for temporary investigative authority and protective services must be supported by an affidavit signed by the county attorney, the attorney general, or an attorney hired by the county or must be supported by a department of public health and human services report stating in detail the facts upon which the request is based.

(4) An order for temporary investigative authority and protective services must be issued for a period not longer than 45 days following the show cause hearing and must be limited to one extension of an additional 45 days unless the petitioner and respondent parent or guardian have consented in writing. Before the expiration of the time provided for in an order for temporary investigative authority and protective services the county attorney, the attorney general, or an attorney hired by the county must file a petition for one of the following:

(a) limited emancipation;

(b) temporary legal custody;

(c) long-term legal custody;

(d) termination of the parent-child legal relationship and permanent legal custody with the right to consent to adoption; or

(e) dismissal.

(5) The court may continue an order for temporary investigative authority pending a hearing on a petition provided for in subsection (4)."





Section 

•   Section 41-3-403, MCA, is amended to read:

"41-3-403.   Order for immediate protection of youth. (1)  (a) Upon the filing of a petition for temporary investigative authority and protective services, the court may issue an order granting relief that may be required for the immediate protection of the youth.

(b)  The order, along with the petition and supporting documents, must be served by a peace officer or a representative of the department on the person or persons named in the order. When the youth is placed in a medical facility or protective facility, the department shall notify the parents or parent, guardian, or other person having legal custody of the youth, at the time the placement is made or as soon after placement as possible.

(c)  The order must require the person served to comply immediately with the terms of the order or to appear before the court issuing the order on the date specified and show cause why the person has not complied with the order the order for temporary investigative authority and protective services should not have been granted. The show cause hearing must be conducted within 20 days of the issuance of the order by the judge or a master appointed by the judge. The person filing the petition has the burden of presenting evidence establishing probable cause for the issuance of the order. Except as otherwise provided in this part, the rules of civil procedure apply. Hearsay evidence of statements made by the affected youth is admissible at the hearing or at a contested case proceeding held pursuant to Title 2, chapter 4, part 6, that results from adverse licensing action taken by the department.

(d)  Upon a failure to comply or show cause, the court may hold the person in contempt or place temporary legal physical custody of the youth with the department until further order.

(2) IN AN ORDER GRANTING OR DENYING RELIEF, THE COURT SHALL MAKE A FINDING REGARDING THE REASONABLENESS OF AGENCY EFFORTS TO REHABILITATE THE FAMILY TO PREVENT THE CHILD'S REMOVAL FROM THE HOME.

(2)(3)  The court may grant the following kinds of relief:

(a)  right of entry by a peace officer or department worker;

(b)  medical and psychological evaluation of the youth or parents, guardians, or person having physical or legal custody;

(c)  requirement that the youth, parents, guardians, or person having physical or legal custody receive counseling services;

(d)  placement of the youth in a temporary medical facility or a facility for protection of the youth;

(e)  requirement that the parents, guardian, or other person having physical or legal custody furnish services that the court may designate;

(f)  inquiry into the financial ability of the parents, guardian, or other person having custody of the youth to contribute to the costs for the care, custody, and treatment of the youth and requirement of a contribution for those costs pursuant to the requirements of 41-3-406(3) through (6) [section 12 10];

(g)  other temporary disposition that may be required in the best interest interests of the youth that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined.

(4) AN ORDER FOR TEMPORARY INVESTIGATIVE AUTHORITY AND PROTECTIVE SERVICES MAY NOT BE ISSUED FOR A PERIOD LONGER THAN 90 DAYS FOLLOWING THE SHOW CAUSE HEARING AND MUST BE LIMITED TO ONE EXTENSION OF 90 DAYS. BEFORE THE EXPIRATION OF THE TIME PROVIDED FOR IN AN ORDER FOR TEMPORARY INVESTIGATIVE AUTHORITY AND PROTECTIVE SERVICES, THE COUNTY ATTORNEY, THE ATTORNEY GENERAL, OR AN ATTORNEY HIRED BY THE COUNTY SHALL FILE A PETITION FOR ONE OF THE FOLLOWING:

(A) LIMITED EMANCIPATION;

(B) TEMPORARY LEGAL CUSTODY;

(C) TERMINATION OF THE PARENT-CHILD LEGAL RELATIONSHIP AND PERMANENT LEGAL CUSTODY WITH THE RIGHT TO CONSENT TO ADOPTION; OR

(D) DISMISSAL.

(5) NOTWITHSTANDING THE ABOVE TIME LIMITS, THE COURT MAY CONTINUE AN ORDER FOR TEMPORARY INVESTIGATIVE AUTHORITY PENDING A HEARING ON A PETITION PROVIDED FOR IN SUBSECTION (4).

(6) IF THE TIME LIMITATIONS OF THIS SECTION ARE NOT MET, THE COURT SHALL REVIEW THE REASONS FOR THE FAILURE AND ORDER AN APPROPRIATE REMEDY THAT CONSIDERS THE BEST INTERESTS OF THE CHILD."





Section 

•   Section 41-3-404, MCA, is amended to read:

"41-3-404.   Adjudicatory hearing -- temporary disposition. (1) In the adjudicatory hearing on a petition under 41-3-401, the court shall determine by a preponderance of the evidence whether the youth is a youth in need of care and ascertain, as far as possible, the cause.

(2)  The court shall hear evidence regarding the residence of the youth, the whereabouts of the parents, guardian, or nearest adult relative, and any other matters the court considers relevant in determining the status of the youth.

(3)  In all civil and criminal proceedings relating to abuse or neglect, none of the privileges related to the examination or treatment of the child and granted in Title 26, chapter 1, part 8, except the attorney-client privilege granted by 26-1-803, apply.

(4)  (a) If the court determines that the youth is not an abused or neglected child, the petition must be dismissed and any order made pursuant to 41-3-403 must be vacated.

(b)  If the court determines that the youth is an abused or neglected child the youth is adjudicated a youth in need of care, the court shall set a date for a dispositional hearing to be conducted within 30 days and order any necessary or required investigations. The court may issue a temporary dispositional order pending the dispositional hearing. The temporary dispositional order may provide for any of the forms of relief listed in 41-3-403(2)(3)."





Section 

•   Section 41-3-406, MCA, is amended to read:

"41-3-406.   Dispositional hearing -- contributions by parents or guardians for youth's care temporary legal custody. (1) If a youth is found to be a youth in need of care under 41-3-404, the court may enter its judgment, making any of the following dispositions to protect the welfare of the youth:

(a)  permit the youth to remain with the youth's parents parent or guardian, subject to those conditions and limitations the court may prescribe;

(b)  grant an order of limited emancipation to a youth who is 16 years of age or older as provided in 41-3-408;

(c)  transfer temporary legal custody to any of the following:

(i)  the department;

(ii) a licensed child-placing agency that is willing and able to assume responsibility for the education, care, and maintenance of the youth and that is licensed or otherwise authorized by law to receive and provide care of the youth; or

(iii) a relative or other individual who, after study is recommended by the department or a licensed child-placing agency designated by the court, and is found by the court to be qualified to receive and care for the youth;

(d)  order any party to the action to do what is necessary to give effect to the final disposition, including undertaking medical and psychological evaluations, treatment, and counseling that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined.

(e)  order further care and treatment as the court considers in the best interest interests of the youth CHILD that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined pursuant to [section 12 10].

(2) TO GRANT TEMPORARY LEGAL CUSTODY, THE COURT SHALL MAKE A FINDING THAT:

(A) RETURNING THE CHILD TO THE CHILD'S PARENT OR GUARDIAN WOULD CREATE A SUBSTANTIAL RISK OF HARM TO THE CHILD OR WOULD BE DETRIMENTAL TO THE CHILD'S PHYSICAL OR EMOTIONAL WELL-BEING; AND

(B) REASONABLE SERVICES HAVE BEEN PROVIDED TO THE PARENT OR GUARDIAN TO PREVENT THE REMOVAL OF THE CHILD FROM THE HOME.

(3) IN MAKING A FINDING REGARDING THE RISK OF HARM TO THE CHILD OR REGARDING DETRIMENT TO THE CHILD, FAILURE OF THE CHILD'S PARENT OR GUARDIAN TO PARTICIPATE IN, TO COMPLY WITH, IN WHOLE OR IN PART, OR TO MEET THE GOALS OF A COURT-ORDERED TREATMENT PLAN CONSTITUTES PRIMA FACIE EVIDENCE THAT RETURN OF THE CHILD TO THE PARENT OR GUARDIAN WOULD BE DETRIMENTAL TO THE CHILD'S PHYSICAL OR EMOTIONAL WELL-BEING.

(2)(4) An order for temporary legal custody may be in effect for no longer than 6 months. Before the expiration of the order for temporary legal custody the county attorney, the attorney general, or an attorney hired by the county shall petition for one on the following:

(a) an extension of temporary legal custody upon a showing that additional time is necessary for the parent or guardian to successfully complete a treatment plan;

(b) long-term legal custody pursuant to [section 13];

(c)(B) termination of the parent-child legal relationship and permanent legal custody with the right of adoption pursuant to 41-3-607; or

(d)(C) dismissal.

(3)(5) The court may continue an order for temporary legal custody pending a hearing on a petition provided for in subsection (2) (4).

(6) IF THE TIME LIMITATIONS OF THIS SECTION ARE NOT MET, THE COURT SHALL REVIEW THE REASONS FOR THE FAILURE AND ORDER AN APPROPRIATE REMEDY THAT CONSIDERS THE BEST INTERESTS OF THE CHILD.

(2)  If the youth is transferred to the custody of the department, the court shall examine the financial ability of the youth's parents or guardians to pay a contribution covering all or part of the costs for the care, custody, and treatment of the youth, including the costs of necessary medical, dental, and other health care.

(3)  If the court determines that the youth's parents or guardians are financially able to pay a contribution as provided in subsection (2), the court shall order the youth's parents or guardians to pay an amount based on the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209.

(4)  (a) Except as provided in subsection (4)(b), contributions ordered under this section and each modification of an existing order are enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 4. An order for a contribution that is inconsistent with this section is nevertheless subject to withholding for the payment of the contribution without need for an amendment of the support order or for any further action by the court.

(b)  A court-ordered exception from contributions under this section must be in writing and be included in the order. An exception from the immediate income withholding requirement may be granted if the court finds that there is:

(i)  good cause not to require immediate income withholding; or

(ii) an alternative arrangement between the department and the person who is ordered to pay contributions.

(c)  A finding of good cause not to require immediate income withholding must, at a minimum, be based upon:

(i)  a written determination and explanation by the court of the reasons why the implementation of immediate income withholding is not in the best interests of the child; and

(ii) proof of timely payment of previously ordered support in cases involving modification of contributions ordered under this section.

(d)  An alternative arrangement must:

(i)  provide sufficient security to ensure compliance with the arrangement;

(ii) be in writing and be signed by a representative of the department and the person required to make contributions; and

(iii) if approved by the court, be entered into the record of the proceeding.

(5)  Upon a showing of a change in the financial ability of the youth's parents or guardians to pay, the court may modify its order for the payment of contributions required under subsection (3).

(6)  (a) If the court orders the payment of contributions under this section, the department shall apply to the department of public health and human services for support enforcement services pursuant to Title IV-D of the Social Security Act.

(b)  The department of public health and human services may collect and enforce a contribution order under this section by any means available under law, including the remedies provided for in Title 40, chapter 5, parts 2 and 4."





NEW SECTION. Section 

•   Contributions by parents or guardians for youth's care. (1)  If custody of the youth is transferred to the department, the court shall examine the financial ability of the youth's parents or guardians to pay a contribution covering all or part of the costs for the care, custody, and treatment of the youth, including the costs of necessary medical, dental, and other health care.

(2)  If the court determines that the youth's parents or guardians are financially able to pay a contribution as provided in subsection (1), the court shall order the youth's parent or guardian to pay an amount based on the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209.

(3)  (a) Except as provided in subsection (3)(b), contributions ordered under this section and each modification of an existing order are enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 4. An order for a contribution that is inconsistent with this section is nevertheless subject to withholding for the payment of the contribution without need for an amendment of the support order or for any further action by the court.

(b)  A court-ordered exception from contributions under this section must be in writing and must be included in the order. An exception from the immediate income withholding requirement may be granted if the court finds that there is:

(i)  good cause not to require immediate income withholding; or

(ii) an alternative arrangement between the department and the person who is ordered to pay contributions.

(c)  A finding of good cause not to require immediate income withholding must, at a minimum, be based upon:

(i)  a written determination and explanation by the court of the reasons why the implementation of immediate income withholding is not in the best interests of the child; and

(ii) proof of timely payment of previously ordered support in cases involving modification of contributions ordered under this section.

(d)  An alternative arrangement must:

(i)  provide sufficient security to ensure compliance with the arrangement;

(ii) be in writing and be signed by a representative of the department and the person required to make contributions; and

(iii) if approved by the court, be entered into the record of the proceeding.

(4)  Upon a showing of a change in the financial ability of the youth's parent or guardian to pay, the court may modify its order for the payment of contributions required under subsection (2).

(5)  (a) If the court orders the payment of contributions under this section, the department shall apply to the department of public health and human services for support enforcement services pursuant to Title IV-D of the Social Security Act.

(b)  The department of public health and human services may collect and enforce a contribution order under this section by any means available under law, including the remedies provided for in Title 40, chapter 5, parts 2 and 4.





NEW SECTION. Section 13.  Petition for long-term legal custody. (1) The county attorney, attorney general, or an attorney hired by the county may file a petition for long-term legal custody without terminating the parent-child legal relationship when, because of special needs and circumstances, the child should be placed in the custody of a responsible relative or other individual or should continue in foster care on a long-term basis and the child has:

(a) been adjudicated a youth in need of care under 41-3-404; and

(b) reached the age of 12 or substantial reasons exist for making an exception to the age limit.

(2) The court may transfer legal custody to any of the following:

(a)  the department;

(b) a licensed child-placing agency that is willing and able to assume responsibility for the education, care, and maintenance of the youth and that is licensed or otherwise authorized by law to receive and provide care of the youth; or

(c) a relative or other individual who is recommended by the department or a licensed child-placing agency designated by the court and is found by the court to be qualified to receive and care for the youth.

(3) The court may terminate long-term legal custody upon petition of the birth parents, transferees of legal custody, or the department, if the court finds that the circumstances of the child or family have substantially changed and the best interests of the child are no longer being served.





NEW SECTION. Section 

•   Permanency plan hearing. (1) A permanency plan hearing must be held by the court no later than 12 months after the initial order is issued UNLESS THE PROCEEDING HAS BEEN DISMISSED, THE CHILD WAS NOT REMOVED FROM THE HOME, OR THE CHILD HAS BEEN RETURNED TO THE CHILD'S PARENT OR GUARDIAN. The permanency plan hearing may be substituted for COMBINED WITH a hearing that is required in other sections of this part if held within the time limits of that section. IF A PERMANENCY PLAN HEARING IS COMBINED WITH ANOTHER HEARING, THE REQUIREMENTS OF THE COURT RELATED TO THE DISPOSITION OF THE OTHER HEARING MUST BE MET IN ADDITION TO THE REQUIREMENTS OF THIS SECTION.

(2) (a) The court shall order that the child be returned to the custody of the child's parent or guardian unless it finds, by a preponderance of the evidence, that returning the child would create a substantial risk or be detrimental to the child's physical or emotional well-being. The failure of a parent or guardian to participate in, comply with, in whole or in part, or to meet the goals of a court approved treatment plan constitutes prima facie evidence that return of the child to that parent or guardian would be detrimental.

(b) In making a determination under this section, the court shall review a report prepared by the department, a report prepared by the child's guardian ad litem, any evidence regarding the efforts and progress demonstrated by the parent or guardian, and the extent to which the parent or guardian cooperated and used the services provided.

(c) The court shall determine whether reasonable services have been offered or provided to the parent or guardian.

(3) If a child is not returned to this parent or guardian at the permanency plan hearing, the court shall:

(a) order the department to develop a permanent plan, and order the county attorney, attorney general, or an attorney hired by the county to petition the court within 30 days after the present hearing for a determination regarding whether termination of parental rights, long-term legal custody, or temporary legal custody for a specified period of time if reunification is the most appropriate final plan for the child; and

(b) in its discretion, enter any other order that it determines to be in the best interests of the child.

(2) AT LEAST 3 DAYS PRIOR TO THE PERMANENCY PLAN HEARING, THE DEPARTMENT AND THE GUARDIAN AD LITEM SHALL EACH SUBMIT A REPORT REGARDING THE CHILD TO THE COURT FOR REVIEW. THE REPORT MUST CONTAIN THE:

(A) EFFORTS AND PROGRESS DEMONSTRATED BY THE CHILD'S PARENT OR GUARDIAN TO COMPLETE A TREATMENT PLAN;

(B) EXTENT TO WHICH THE PARENT OR GUARDIAN COOPERATED AND USED THE SERVICES PROVIDED;

(C) STATUS OF THE CHILD, INCLUDING THE CHILD'S MENTAL, PHYSICAL, AND EMOTIONAL HEALTH; AND

(D) PLAN FOR PERMANENCY FOR THE CHILD.

(3) IF THE COURT FINDS THAT THE PERMANENCY PLAN IS IN THE BEST INTERESTS OF THE CHILD, THE COURT SHALL:

(A) ORDER THE DEPARTMENT TO TAKE WHATEVER STEPS ARE NECESSARY TO EFFECTUATE THE TERMS OF THE PLAN AND SHALL ORDER THE COUNTY ATTORNEY, THE ATTORNEY GENERAL, OR AN ATTORNEY HIRED BY THE COUNTY TO PETITION THE COURT WITHIN 30 DAYS AFTER THE PRESENT HEARING FOR ONE OF THE FOLLOWING:

(I) TERMINATION OF PARENTAL RIGHTS;

(II) TEMPORARY LEGAL CUSTODY, NOT TO EXCEED 6 MONTHS; OR

(III) DISMISSAL; AND

(B) IN ITS DISCRETION, ENTER ANY OTHER ORDER THAT IT DETERMINES TO BE IN THE BEST INTERESTS OF THE CHILD THAT DOES NOT REQUIRE AN EXPENDITURE OF MONEY BY THE DEPARTMENT UNLESS THE DEPARTMENT IS NOTIFIED AND A COURT HEARING IS SET IN A TIMELY MANNER ON THE PROPOSED EXPENDITURE. THE DEPARTMENT IS THE PAYOR OF LAST RESORT AFTER ALL FAMILY, INSURANCE, AND OTHER RESOURCES HAVE BEEN EXAMINED.

(4) IF THE PERMANENCY PLAN HEARING RESULTS IN AN ORDER FOR A 6-MONTH EXTENSION OF TEMPORARY LEGAL CUSTODY, UPON THE EXPIRATION OF THE TEMPORARY LEGAL CUSTODY ORDER AND THE FILING OF A PETITION BY THE DEPARTMENT AND IF THE COURT FINDS THAT REUNIFICATION OF THE CHILD WITH THE CHILD'S PARENT OR GUARDIAN IS NOT IN THE BEST INTERESTS OF THE CHILD, THE COURT SHALL ORDER:

(A) TERMINATION OF PARENTAL RIGHTS IF THE APPLICABLE REQUIREMENTS TO TERMINATE PARENTAL RIGHTS HAVE BEEN MET; OR

(B) LONG-TERM CUSTODY OF A CHILD IF THE EVIDENCE DEMONSTRATES BY A PREPONDERANCE OF THE EVIDENCE THAT:

(I) THE CHILD HAS BEEN ADJUDICATED A YOUTH IN NEED OF CARE;

(II) THE DEPARTMENT HAS MADE REASONABLE EFFORTS TO REUNITE THE PARENT AND CHILD, FURTHER EFFORTS BY THE DEPARTMENT WOULD LIKELY BE UNPRODUCTIVE, AND REUNIFICATION OF THE CHILD WITH THE PARENT OR GUARDIAN WOULD BE CONTRARY TO THE BEST INTERESTS OF THE CHILD;

(III) THE CHILD HAS REACHED 12 YEARS OF AGE;

(IV) TERMINATION OF PARENTAL RIGHTS TO THE CHILD IS NOT IN THE CHILD'S BEST INTERESTS; AND

(V) THE CHILD HAS BEEN IN A PLACEMENT IN WHICH THE FOSTER PARENT HAS COMMITTED TO THE LONG-TERM CARE AND TO A RELATIONSHIP WITH THE CHILD AND IT IS IN THE BEST INTERESTS OF THE CHILD TO REMAIN IN THAT PLACEMENT.

(5) THE COURT MAY TERMINATE LONG-TERM CUSTODY UPON PETITION OF THE BIRTH PARENTS, THOSE TO WHOM LEGAL CUSTODY HAS BEEN TRANSFERRED, OR THE DEPARTMENT IF THE COURT FINDS THAT THE CIRCUMSTANCES OF THE CHILD OR FAMILY HAVE SUBSTANTIALLY CHANGED AND THE BEST INTERESTS OF THE CHILD ARE NO LONGER BEING SERVED.





Section 

•   Section 41-3-607, MCA, is amended to read:

"41-3-607.   Petition for termination -- separate hearing -- right to counsel -- no jury trial. (1) The termination of a parent-child legal relationship may be considered only after the filing of a petition pursuant to 41-3-401 alleging the factual grounds for termination pursuant to 41-3-609. If termination of a parent-child legal relationship is ordered, the court may transfer permanent legal custody of the child, with the right to consent to the child's adoption, to:

(a)  the department;

(b)  a licensed child-placing agency; or

(c)  another individual who has been approved by the department and has received consent for the transfer of custody from the department or agency that has custody of the child.

(2)  After a petition for termination of a parent-child relationship is filed, parents must be advised of the right to counsel, and counsel must be appointed in accordance with 41-3-401(12).

(3)  A guardian ad litem must be appointed to represent the child's best interests in any hearing determining the involuntary termination of the parent-child legal relationship. The guardian ad litem shall continue to represent the child until the child is returned home or placed in an appropriate permanent placement. If a respondent parent is a minor, a guardian ad litem must be appointed to serve the minor parent in addition to any counsel requested by the parent.

(4)  There is no right to a jury trial at proceedings held to consider the termination of a parent-child legal relationship."





Section 

•   Section 41-3-609, MCA, is amended to read:

"41-3-609.   Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:

(a)  the parents have relinquished the child pursuant to 40-6-135;

(b)  the child has been abandoned by the parents as set forth in 41-3-102(7)(e)(8)(E);

(c) the parent is unknown and has been unknown for a period of 90 days and reasonable efforts to identify and locate the parent have failed;

(d) the parent is convicted of a felony in which sexual intercourse occurred or is a minor adjudicated a delinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, the child is born; or

(c)(e)  the child is an adjudicated youth in need of care and both of the following exist:

(i)  an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and

(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or.

(d)  the parent has failed to successfully complete a treatment plan approved by the court within the time periods allowed for the child to be in foster care under 41-3-410 unless it orders other permanent legal custody under 41-3-410.; OR

(F) THE PARENT HAS SUBSTANTIALLY FAILED TO SUCCESSFULLY COMPLETE OR MEET THE GOALS OF A TREATMENT PLAN APPROVED BY THE COURT AND THE CHILD HAS BEEN IN AN OUT-OF-HOME PLACEMENT FOR A CUMULATIVE TOTAL PERIOD OF 1 YEAR OR LONGER.

(2)  In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following:

(a)  emotional illness, mental illness, or mental deficiency of the parent of such a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;

(b)  a history of violent behavior by the parent;

(c)  a single incident of life-threatening or gravely disabling injury to or disfigurement of the child caused by the parent;

(d)  excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent's ability to care and provide for the child;

(e)  present judicially ordered long-term confinement of the parent;

(f)  the injury or death of a sibling child due to proven parental abuse or neglect; and

(g)  any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.

(3)  In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evaluation of the child's or the parent's physical, mental, and emotional conditions.

(4)  A treatment plan is not required under this part upon a finding by the court following hearing if:

(a)  two medical doctors submit testimony that the parent is so severely mentally ill that the parent cannot assume the role of parent;

(b)  the parent is incarcerated for more than 1 year and a treatment plan is not practical considering the incarceration; or

(c)  the death or serious bodily injury, as defined in 45-2-101(64), of a sibling child caused by abuse or neglect by the parent has occurred.

(5)  If a person is convicted of a felony in which sexual intercourse occurred or if a minor is adjudicated a delinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, a child is born, the court may terminate the offender's parental rights to the child at any time after the conviction or adjudication."





Section 

•   Section 41-4-102, MCA, is amended to read:

"41-4-102.   Financial responsibility. Financial responsibility for any child placed pursuant to the provisions of the Interstate Compact on the Placement of Children shall must be determined in accordance with the provisions of Article V thereof of that compact in the first instance. However, in the event of partial or complete default of performance thereunder under the compact, the provisions of Title 40, chapter 5, part 1 (Revised Uniform Reciprocal Enforcement of Support Act) (Uniform Interstate Family Support Act), 41-3-406 [section 12 10], and 41-3-1122 also may be invoked."





Section 

•   Section 41-5-530, MCA, is amended to read:

"41-5-530.   Parental contributions account -- allocation of proceeds. (1) There is a parental contributions account in the state special revenue fund.

(2)  Contributions paid by the parents and guardians of youth under 41-3-406 [section 12 10], 41-5-403, 41-5-523, or 41-5-524 must be deposited in the account.

(3)  All money in the account, except any amount required to be returned to federal or county sources, is allocated to the department of public health and human services to carry out its duties under 52-1-103."





NEW SECTION. Section 

•   Proceedings subject to Indian Child Welfare Act. If a proceeding under this chapter involves an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., the proceeding is subject to the Indian Child Welfare Act.




NEW SECTION. Section 

•   Repealer. Sections 41-3-410 and 41-3-603, MCA, are repealed.




NEW SECTION. Section 

•   Codification instruction. (1) [Section 19 16] is intended to be codified as an integral part of Title 41, chapter 3, part 1, and the provisions of Title 41, chapter 3, part 1, apply to [section 19 16].

(2) [Section 5] is intended to be codified as an integral part of Title 41, chapter 3, part 3, and the provisions of Title 41, chapter 3, part 3, apply to [section 5].

(3)(2) [Sections 12, 13, and 14 10 AND 11] are intended to be codified as an integral part of Title 41, chapter 3, part 4, and the provisions of Title 41, chapter 3, part 4, apply to [sections 12, 13, and 14 10 AND 11].





NEW SECTION. Section 22.  Effective dates. (1) Except as provided in subsection (2), [this act] is effective October 1, 1997.

(2) [Section 8] is effective July 1, 1999.





NEW SECTION. Section 23.  Termination. [Section 7] terminates June 30, 1999.





NEW SECTION. SECTION 

•  COORDINATION INSTRUCTION. (1) IF HOUSE BILL NO. 163 IS PASSED AND APPROVED AND IF 40-8-109 AND 40-8-117 ARE REPEALED, A REFERENCE TO [SECTIONS 1 THROUGH 156 OF HOUSE BILL NO. 163], THE "MONTANA ADOPTION ACT", SHOULD BE SUBSTITUTED FOR THE REFERENCE TO "40-8-109, 40-8-117" IN 41-3-102 UNDER THE DEFINITION OF "PARENT-CHILD LEGAL RELATIONSHIP".

(2) IF SENATE BILL NO. 110 IS PASSED AND APPROVED, THEN 41-3-406 IN SENATE BILL NO. 110 IS VOID AND SECTION 10 OF THIS BILL MUST READ:

"NEW SECTION. Section 10.  Contributions by parents or guardians for youth's care. (1)  If custody of the youth is transferred to the department, the court shall examine the financial ability of the youth's parents or guardians to pay a contribution covering all or part of the costs for the care, custody, and treatment of the youth, including the costs of necessary medical, dental, and other health care.

(2)  If the court determines that the youth's parent or guardian is financially able to pay a contribution as provided in subsection (1), the court shall order the youth's parent or guardian to pay a specified amount or an amount determined by the department. In either case, the amount must be based on the uniform child support guidelines adopted by the department pursuant to 40-5-209.

(3) A parent's or guardian's liability for contributions begins to accrue from the date the youth is removed from the home and continues until the youth is returned to the parent or guardian, the youth becomes emancipated, or the liability is terminated by order of the court.

(4) (a) A parent or guardian who is ordered to pay a contribution for a youth under this section assigns to the department all rights to a child support order for that youth that are not otherwise assigned under 53-2-613. The assignment of a child support obligation:

(i) is effective for both current and accrued support;

(ii) takes effect on the date the youth is transferred to the custody of the department; and

(iii) remains in effect for as long as the youth lawfully remains in custody of the department and until all arrears that are owed prior to the termination of the department's custody are paid.

(b) The assigned child support obligation is in addition to the parent's or guardian's contribution determined under subsection (2) or (8), if applicable.

(c) The assigned child support obligation may be retained by the department in an amount sufficient to reimburse the costs for the youth's care that remain after the obligation has been satisfied.

(5)  (a) Except as provided in subsection (5)(b), contributions ordered under this section and each modification of an existing order are enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 4. An order for a contribution that is inconsistent with this section is nevertheless subject to withholding for the payment of the contribution without need for an amendment of the support order or for any further action by the court.

(b)  A court-ordered exception from contributions under this section must be in writing and must be included in the order. An exception from the immediate income withholding requirement may be granted if the court finds that there is:

(i)  good cause not to require immediate income withholding; or

(ii) an alternative arrangement between the department and the person who is ordered to pay contributions.

(c)  A finding of good cause not to require immediate income withholding must, at a minimum, be based upon:

(i)  a written determination and explanation by the court of the reasons why the implementation of immediate income withholding is not in the best interests of the child; and

(ii) proof of timely payment of previously ordered support in cases involving modification of contributions ordered under this section.

(d)  An alternative arrangement must:

(i)  provide sufficient security to ensure compliance with the arrangement;

(ii) be in writing and be signed by a representative of the department and the person required to make contributions; and

(iii) if approved by the court, be entered into the record of the proceeding.

(6)  Upon a showing of a change in the financial ability of the youth's parent or guardian to pay, the court may modify its order for the payment of contributions required under subsection (2) or the parent or guardian may apply to the department for an administrative modification provided for in Title 40, chapter 5, part 2. A modification must be based upon the uniform child support guidelines adopted by the department pursuant to 40-5-209.

(7)  (a) If the court orders the payment of contributions under this section or the department orders the payment of contributions under subsection (8), the department shall collect and enforce the contribution order pursuant to Title IV-D of the Social Security Act.

(b)  The department may collect and enforce a contribution order and an assignment of a child support obligation, if applicable, under this section by any means available under law, including the remedies provided for in Title 40, chapter 5, parts 2 and 4.

(8) Upon a court order for commitment that does not contain an amount of a contribution or a referral by the court to determine an amount of a contribution, as provided in subsection (2), the department may determine, establish, and order the youth's parent or guardian to pay a contribution as provided for in subsection (1) using the procedure provided in Title 40, chapter 5, part 2, for establishing a child support order.





NEW SECTION. SECTION 

•  APPLICABILITY. [SECTIONS 1 THROUGH 10] APPLY TO PROCEEDINGS COMMENCED ON OR AFTER OCTOBER 1, 1997.

-END-