SENATE BILL NO. 283
INTRODUCED BY M. WATERMAN
AN ACT REVISING THE LOCAL CITIZEN REVIEW BOARD PILOT PROGRAM ACT; AMENDING SECTIONS 41-3-205, 41-3-1001, 41-3-1003, 41-3-1004, 41-3-1005, 41-3-1006, 41-3-1007, 41-3-1008, 41-3-1010, 41-3-1011, 41-3-1012, 41-3-1013, AND 41-3-1115, MCA; REPEALING SECTIONS 41-3-1002, 41-3-1009, AND 41-3-1014, MCA; AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 41-3-205, MCA, is amended to read:
"41-3-205. Confidentiality -- disclosure exceptions. (1) The case records of the department and its local affiliate, the county welfare department, the county attorney, and the court concerning actions taken under this chapter and all records concerning reports of child abuse and neglect must be kept confidential except as provided by this section. Except as provided in subsections (4) and (5), a person who purposely or knowingly permits or encourages the unauthorized dissemination of the contents of case records is guilty of a misdemeanor.
(2) Records may be disclosed to a court for in camera inspection if relevant to an issue before it. The court may permit public disclosure if it finds disclosure to be necessary for the fair resolution of an issue before it.
(3) Records, including case notes, correspondence, evaluations, videotapes, and interviews, unless otherwise protected by this section or unless disclosure of the records is determined to be detrimental to the child or harmful to another person who is a subject of information contained in the records, may be disclosed to the following persons or entities in this state and any other state or country:
(a) a department, agency, or organization, including a federal agency, military enclave, or Indian tribal organization, that is legally authorized to receive, inspect, or investigate reports of child abuse or neglect and that otherwise meets the disclosure criteria contained in this section;
(b) a licensed youth care facility or a licensed child-placing agency that is providing services to the family or child who is the subject of a report in the records or to a person authorized by the department to receive relevant information for the purpose of determining the best interests of a child with respect to an adoptive placement;
(c) a health or mental health professional who is treating the family or child who is the subject of a report in the records;
(d) a parent, guardian, or person designated by a parent or guardian of the child who is the subject of a report in the records or other person responsible for the child's welfare, without disclosure of the identity of any person who reported or provided information on the alleged child abuse or neglect incident contained in the records;
(e) a child named in the records who was allegedly abused or neglected or the child's legal guardian or legal representative, including the child's guardian ad litem or attorney or a special advocate appointed by the court to represent a child in a pending case;
(f) the state protection and advocacy program as authorized by 42 U.S.C. 6042(a)(2)(B);
(g) approved foster and adoptive parents who are or may be providing care for a child;
(h) a person about whom a report has been made and that person's attorney, with respect to the relevant records pertaining to that person only and without disclosing the identity of the reporter or any other person whose safety may be endangered;
(i) an agency, including a probation or parole agency, that is legally responsible for the supervision of an alleged perpetrator of child abuse or neglect;
(j) a person, agency, or organization that is engaged in a bona fide research or evaluation project and that is authorized by the department to conduct the research or evaluation;
(k) the members of an interdisciplinary child protective team authorized under 41-3-108 or of a family group conference for the purposes of assessing the needs of the child and family, formulating a treatment plan, and monitoring the plan;
(l) the coroner or medical examiner when determining the cause of death of a child;
(m) a child fatality review team recognized by the department;
(n) a department or agency investigating an applicant for a license or registration that is required to operate a youth care facility, day-care facility, or child-placing agency;
(o) a person or entity who is carrying out background, employment-related, or volunteer-related screening of current or prospective employees or volunteers who have or may have unsupervised contact with children through employment or volunteer activities. A request for information under this subsection (3)(o) must be made in writing. Disclosure under this subsection (3)(o) is limited to information that indicates a risk to children, persons with developmental disabilities, or older persons posed by the person about whom the information is sought, as determined by the department.
(p) the news media if disclosure is limited to confirmation of factual information regarding how the case was handled and if disclosure does not violate the privacy rights of the child or the child's parent or guardian, as determined by the department;
(q) an employee of the department or other state agency if disclosure of the records is necessary for administration of programs designed to benefit the child;
(r) an agency of an Indian tribe or the relatives of an Indian child if disclosure of the records is necessary to meet requirements of the federal Indian Child Welfare Act;
(s) a youth probation officer who is working in an official capacity with the child who is the subject of a report in the records;
(t) a county attorney, peace officer, or attorney who is hired by or represents the department, if disclosure is necessary
for the investigation, defense, or prosecution of a case involving child abuse or neglect;
(u) a foster care review committee established under 41-3-1115 or, when applicable, a foster care review committee
established under 41-3-1115 or, when applicable, a local citizen review board established under Title 41, chapter 3, part 10;
(v) a school employee participating in an interview of a child by a social worker, county attorney, or peace officer, as provided in 41-3-202;
(w) a member of a county interdisciplinary child information team formed under the provisions of 52-2-211;
(x) members of a local interagency staffing group provided for in 52-2-203;
(y) a member of a youth placement committee formed under the provisions of 41-5-121; or
(z) a principal of a school or other employee of the school district authorized by the trustees of the district to receive the information with respect to a student of the district who is a client of the department.
(4) A person who is authorized to receive records under this section shall maintain the confidentiality of the records and may not disclose information in the records to anyone other than the persons described in subsection (3)(a). However, this subsection may not be construed to compel a family member to keep the proceedings confidential.
(5) A news organization or its employee, including a freelance writer or reporter, is not liable for reporting facts or statements made by an immediate family member under subsection (4) if the news organization, employee, writer, or reporter maintains the confidentiality of the child who is the subject of the proceeding.
(6) This section is not intended to affect the confidentiality of criminal court records or records of law enforcement agencies.
(7) Copies of records, evaluations, reports, or other evidence obtained or generated pursuant to this section that are provided to the parent, the guardian, or the parent or guardian's attorney must be provided without cost."
Section 2. Section 41-3-1001, MCA, is amended to read:
"41-3-1001. Short title. This part may be cited as the "Local Citizen "Citizen Review Board Pilot Program Act"."
Section 3. Section 41-3-1003, MCA, is amended to read:
"41-3-1003. Establishment of local citizen review board -- definition -- membership. (1) Subject to the availability
of funds, the district court judge of a district designated pursuant to 41-3-1002 to operate a pilot program As used in this
part, "board" means a citizen review board appointed as provided in this section.
(2) Subject to the availability of funds, a district court judge who has indicated in writing an interest in having a board
shall establish a local citizen review at least one board in the judicial district to review the case of each child assigned to in
the custody of the department and in foster care by the district court. A board may review a case of a child who remains in
or returns to the child's home and for whom the department retains legal custody.
(2)(3) A local citizen review board is composed of at least three and not more than five members appointed by the
district court judge of a judicial district designated pursuant to 41-3-1002 judges. Each member appointed must be sworn in
by a judge of the judicial district to which the member is appointed to serve.
(3)(4) The district court judge of a judicial district designated pursuant to 41-3-1002 shall appoint the local citizen
review board must be appointed according to the following guidelines:
(a) Members of a local citizen review board must be recruited from groups with special knowledge of or interest in
foster care and child welfare, which may include but is not limited to adoptive parents and members of the professions of
law, medicine, psychology, social work, and education.
(b) As far as practicable, members of a local citizen review board shall represent the various socioeconomic and ethnic
groups of the area served. Boards should include tribal representatives whenever possible.
(c) A person employed by the department of public health and human services, by a private agency regulated, certified,
directed, or licensed by or contracting with the department of public health and human services, or by a district court who
has a direct conflict of interest may not serve on a local citizen review board.
(d) A member of a local citizen review board must be a resident of one of the counties of the judicial district that the
member is appointed to serve.
(4)(5) The members of a local citizen review board must be willing to serve without compensation. must be willing to
serve without compensation."
Section 4. Section 41-3-1004, MCA, is amended to read:
"41-3-1004. Administration -- training -- oversight -- procedures. (1) Subject to the availability of funds, the court
administrator shall: The office of the court administrator, as provided for in 3-1-701, shall, in accordance with the direction
of the supreme court, oversee the program established in this part and shall, at the time prescribed by 5-11-210, prepare a
report to the governor, the legislature, and the public regarding:
(a) state laws, policies, and practices affecting permanence and appropriate care for children in the custody of the department and other agencies; and
(b) the effectiveness of the boards in bringing about permanence and appropriate care for children in the custody of the department and other agencies.
(2) The office of the court administrator shall:
(a) establish policies and procedures for adoption by the Montana supreme court pursuant to subsection (3) for the
operation of the local citizen review a board, including procedures for removing members;
(b) provide training programs for local citizen review board members consisting of orientation training of at least 16
hours and a minimum of 8 hours of continuing education training annually;
(c) provide consultation services on request to the local citizen review a board; and
(d) employ staff and provide for support services for the local citizen review board boards.
(2) The office of the supreme court administrator shall, in accordance with the direction of the supreme court, oversee
the program established in this part and, at the time prescribed by 5-11-210, prepare a report to the governor, the legislature,
and the public regarding:
(a) state laws, policies, and practices affecting permanence and appropriate care for children in the custody of the
department of public health and human services and other agencies; and
(b) the effectiveness of the local citizen review board in bringing about permanence and appropriate care for children in
the custody of the department of public health and human services and other agencies.
(3) The Montana supreme court shall adopt procedures that have the force of law for the administration of the local
citizen review board pilot program regarding:
(a) the removal of members of the local citizen review board;
(b) the time, content, and manner in which case plans for and case progress reports on a child assigned to foster care
must be provided to the local citizen review board by the department of public health and human services, other agencies,
or individuals directly responsible for the care of the child;
(c) the provision of written notice of the review to the department of public health and human services, any other
agency directly responsible for the care or placement of a child, the parents or their attorneys, foster parents, surrogate
parents, mature children or their attorneys, a court-appointed attorney or special advocate of any child, any county attorney
or attorney general actively involved in the case, and other interested persons. The notice must include a statement that
persons receiving a notice may participate in the hearing and be accompanied by a representative.
(d) securing or excusing the presence at the review of caseworkers and other employees of the department of public
health and human services or other agencies directly responsible for the care of the child; and
(e) the manner in which the local citizen review board may remove cases from review when review is not required
under federal law."
Section 5. Section 41-3-1005, MCA, is amended to read:
"41-3-1005. Removal of members -- grounds. Grounds for removal of a member of a local citizen review board under
41-3-1004(3) may include but are not limited to the following:
(1) nonparticipation by a local citizen review board member;
(2) a member establishing residence in a judicial district other than the judicial district in which the court the person was appointed to serve is located;
(3) violation of the confidentiality of information established under 41-3-1007; or
(4) other cause or grounds as necessary for the administration of the program."
Section 6. Section 41-3-1006, MCA, is amended to read:
"41-3-1006. Terms -- officers -- meetings. (1) A local citizen review board member shall serve at the pleasure of the
appointing authority. However, if not otherwise released from service on a local citizen review board, the following
provisions apply:
(a) A member shall serve a term of 2 years, except that if a vacancy occurs, a successor must be appointed to serve the unexpired term.
(b) A member may be reappointed and continue to serve until a successor is appointed.
(2) A local citizen review board shall:
(a) elect annually from its membership a presiding officer and vice presiding officer to serve in the absence of the
presiding officer; and
(b) meet at the nearest department of public health and human services office or another place mutually agreed to by a
majority of the local citizen review board as often as it considers necessary to carry out the duties of the board."
Section 7. Section 41-3-1007, MCA, is amended to read:
"41-3-1007. Confidentiality of information -- penalty. (1) Before beginning to serve on a local citizen review board,
each member shall swear or affirm to the court that the member will keep confidential the information reviewed by the
board and its actions and recommendations in individual cases.
(2) A member of a local citizen review board who violates the duty imposed by subsection (1) is guilty of a
misdemeanor punishable by a fine not to exceed $1,000."
Section 8. Section 41-3-1008, MCA, is amended to read:
"41-3-1008. Access to records. (1) Notwithstanding the provisions of 41-3-205, a local citizen review board has access
to:
(a) any records of the district court that are pertinent to the case; and
(b) any pertinent electronic and paper records of the department of public health and human services or other agencies
that would be admissible in a dispositional review hearing conducted pursuant to 41-3-406, including school records and
reports of private service providers contained in the records of the department of public health and human services or other
agencies.
(2) All requested records not already before the local citizen review board must be submitted by the department of
public health and human services within 5 10 working days after receipt of a request. A local citizen review board and any
staff provided for the board shall return all records and copies received from the department of public health and human
services to the department within 7 working days after completion of the review.
(3) A local citizen review board may retain a reference copy of case material used by the board to make its
recommendation if:
(a) the material is necessary for the ongoing work of the local citizen review board with regard to the particular case or
to work of the board; and
(b) the confidentiality of the material is continued and protected in the same manner as other material received from the
department of public health and human services. Material retained by the local citizen review boards is not subject to
disclosure under the public records law.
(4) If a local citizen review board is denied access to requested records, it may request a hearing. The court may require
the organization in possession of the records to show cause why the records should not be made available as provided by
this section."
Section 9. Section 41-3-1010, MCA, is amended to read:
"41-3-1010. Review -- scope -- procedures -- immunity. (1) (a) Except for cases removed from review under
procedures established under 41-3-1004, the local citizen review The board shall review the case of each child in foster care
that is assigned by the district court focusing on issues that are germane to the goals of permanency and to accessing
appropriate services for parents and children. In evaluating the accessibility, availability, and appropriateness of services,
the board may consider:
(i) the safety of the child;
(ii) whether an involved agency has selected services specifically relevant to the problems and needs of the child and family;
(iii) whether caseworkers have diligently provided services;
(iv) whether appropriate services have been available to the child and family on a timely basis; and
(v) the results of intervention.
(b) The board may review the case of a child who remains in or returns to the child's home and for whom the department retains legal custody.
(2) The review must take place at times set by the local citizen review board. The first review may not be more than 6
months after the child is placed in foster care . Subsequent reviews must take place at least once every 6 months until the
child is no longer within the jurisdiction of the district court or no longer in foster care The time limit must comply with the
Adoption and Safe Families Act of 1997.
(3) The district court, by rule of the court or on an individual case basis, may relieve the local citizen review board of its
responsibility to review a case if a complete judicial review has taken place within 60 days prior to the next scheduled
board review.
(4) The local citizen review board shall review any case in which a petition to terminate parental rights has been denied
as soon as practical but no later than 45 days after the denial. Notice of each review must be sent to the department, any
agency directly responsible for the care or placement of the child, the parents and their attorneys, the foster parents, a
relative caring for the child, the preadoptive parents, the surrogate parents, the child who is the subject of the review if 12
years of age or older, the child's attorney, the guardian ad litem, the court-appointed attorney or special advocate of the
child, the county attorney or deputy attorney general actively involved in the case, the child's tribe if the child is an Indian,
and other interested persons who are authorized by the board to receive notice and who are subject to 41-3-205. The notice
must include a statement that persons receiving a notice may participate in the hearing and be accompanied by a
representative.
(5) After reviewing each case, the local citizen review board shall prepare written findings and recommendations with
respect to:
(a) whether reasonable efforts were made prior to the placement to prevent or to eliminate the need for removal of the child from the home and to make it possible for the child to be returned home;
(b) the continuing need for the placement and the appropriateness and safety of the placement;
(c) compliance with the case plan;
(d) the progress that has been made toward alleviating the need for placement;
(e) a likely date by which the child may be returned home or placed for adoption;
(f) other problems, solutions, or alternatives that the local citizen review board determines should be explored; and
(g) whether the district court should appoint an attorney or other person as special advocate to represent or appear on behalf of the child pursuant to 41-3-303.
(6) Whenever a member of a local citizen review board has a potential conflict of interest in a case being reviewed, the
member shall declare to the board the nature of the potential conflict prior to participating in the case review. The following
provisions apply:
(a) The declaration of the member must be recorded in the official records of the local citizen review board.
(b) If, in the judgment of the majority of the local citizen review board, the potential conflict of interest may prevent the
member from fairly and objectively reviewing the case, the board may remove the member from participation in the review.
(7) The local citizen review board shall keep accurate records and retain the records on file. The local citizen review
board shall send copies of its written findings and recommendations to the district court, the department of public health
and human services, and other participants in the review unless prohibited by the confidentiality provisions of 41-3-205.
(8) The local citizen review board may hold joint or separate reviews for groups of siblings.
(9) The local citizen review board may disclose to parents and their attorneys, foster parents, mature children who are
12 years of age or older and their, childrens' attorneys, and other persons authorized by the board to participate in the case
review the records disclosed to the board pursuant to 41-3-1008. Before participating in a local citizen review board case
review, each participant, other than parents and children, shall swear or affirm to the board that the participant will keep
confidential the information disclosed by the board in the case review and will disclose it only as authorized by law.
(10) A person who serves on a local citizen review board in a volunteer capacity, as provided in this part, is considered
an agent of the judiciary and is entitled to immunity from suit as provided in 2-9-112."
Section 10. Section 41-3-1011, MCA, is amended to read:
"41-3-1011. Recommendations Board recommendations concerning foster care services and policy
considerations by board. In addition to reviewing individual cases of children in foster care, a local citizen review board
may make recommendations to the district court and to the department of public health and human services concerning
foster care services, policies, procedures, and laws. Recommendations must be in writing and must be provided to the
department."
Section 11. Section 41-3-1012, MCA, is amended to read:
"41-3-1012. Presence of certain employees and participants at meetings reviews and deliberations of board. (1)
Unless excused from doing so by the local citizen review board, the department of public health and human services and
any other agency directly responsible for the care and placement of the child shall require the presence of any employees
having knowledge of the case at board meetings reviews.
(2) The local citizen review board may require the presence of specific employees of the department of public health
and human services or any other agency or other persons at board meetings reviews. If an employee fails to be present at the
meeting review, the local citizen review board may request a court order. The court may require the employee to be present
and show cause why the employee should not be compelled to appear before the local citizen review board.
(3) The persons who are allowed to be present at a review include representatives of the department or any agency directly responsible for the care or placement of the child, the parents and their attorneys, the foster parents, a relative caring for the child, the preadoptive parents, the surrogate parents, the child who is the subject of the review if 12 years of age or older, the child's attorney, the guardian ad litem, the court-appointed attorney or special advocate of the child, the county attorney or deputy attorney general actively involved in the case, a representative of the child's tribe if the child is an Indian, and other interested persons subject to 41-3-205 and authorized to be present by the board.
(4) Deliberations concerning the recommendations that will be made by the board must be open to all present at the review, except that the presiding officer may close all or part of a deliberation if there has been a threat of a reprisal made by someone who will attend the review or if confidentiality laws preclude open deliberations.
(5) For the purposes of bringing criminal charges against a person who threatens a board member or staff, the board members and board staff must be considered public servants as defined in 45-2-101.
(3)(6) As used in this section, "presence" the following definitions apply:
(a) "Presence" includes telephone participation, except that the caseworker on a representative of the department
knowledgeable about the case at the time of the meeting review must be physically present if required.
(b) "Open" means that review participants may remain in attendance during the deliberations to observe and be available for questions from the board.
(c) "Close", with regard to deliberations, means that only the board members and board staff may remain in attendance."
Section 12. Section 41-3-1013, MCA, is amended to read:
"41-3-1013. Court review of findings and recommendations of board. (1) Upon receipt of findings and
recommendations from the local citizen review board, the district court shall:
(a) review the findings and recommendations of the local citizen review board within 10 20 days. If the district court
finds it appropriate, the district court may on its own motion schedule a review hearing.
(b) cause the findings and recommendations of the local citizen review board to become part of the district court file;
and
(c) give the local citizen review board written notice if the district court modifies, alters, or takes action on a case as a
result of the board's recommendations or refuses to take action on the board's recommendations in any case.
(2) Upon receipt of findings and recommendations from the local citizen review board, the department of public health
and human services shall:
(a) review the findings and recommendations of the local citizen review board within 10 days. The recommendations
must be implemented and the case plan must be modified as the department of public health and human services considers
appropriate and as resources permit.
(b) give the local citizen review board written notice as soon as practicable, but in no case later than 17 days after
receipt of the findings and recommendations, of the action any reasons why the department of public health and human
services intends to take objects to or is not able to implement the recommendations; and
(c) include the findings and recommendations of the local citizen review board as part of the case file of the department
of public health and human services.
(3) The court may schedule a hearing on any recommendations that the department objects to or contends that it is unable to implement.
(3)(4) Upon its own motion or upon the request of the department of public health and human services, the local citizen
review board, or any interested party, the district court may appoint an attorney or other person as special advocate to
represent or appear on behalf of the child. Subject to the direction of the district court, the court-appointed special advocate
shall:
(a) investigate all relevant information about the case;
(b) advocate for the child, ensuring that all relevant facts are brought before the court;
(c) facilitate and negotiate to ensure that the district court, the department of public health and human services, and the
child's attorney fulfill their obligations to the child in a timely fashion; and
(d) monitor all district court orders to ensure compliance and to bring to the district court's attention any change in circumstance that may require modification of the district court's order."
Section 13. Section 41-3-1115, MCA, is amended to read:
"41-3-1115. Foster care review committee. (1) Except as provided in Title 41, chapter 3, part 10, in every judicial
district the youth court judge, in consultation with the department, shall appoint a foster care review committee. The
members of the committee must be willing to act without compensation. The committee shall must be composed of not less
than five or more than seven members. The members shall must include:
(a) a representative of the department;
(b) a representative of the youth court;
(c) someone knowledgeable in the needs of children in foster care placements who is not employed by the department or the youth court;
(d) a representative of a local school district;
(e) if the child whose care under review is an Indian, someone, preferably an Indian person, knowledgeable about Indian cultural and family matters who is appointed effective only for and during that review; and
(f) if there is one, the foster parent of the child whose care is under review. The foster parent's appointment is effective only for and during that review.
(2) When a child is in foster care under the supervision of the department or if payment for care is made pursuant to
41-3-1122, the committee shall conduct a review of the foster care status of the child. The review must be conducted within
a time limit established by the department. The time limit must comply with federal law and may not be later than the
12-month anniversary date of the child's placement into foster care. The time limit must comply with the Adoption and Safe
Families Act of 1997.
(3) The department shall provide the committee with guidelines for operation of the committee. Within 30 days of the foster care review, the committee shall provide the youth court and the department with a written report of its findings and recommendations for further action by the youth court or the department.
(4) The department shall adopt rules necessary to carry out the purposes of this section. The rules must provide for policies and procedures consistent with the provisions regarding notice, written findings and recommendations, conflict of interest, recordkeeping, sibling reviews, disclosure and immunity under 41-3-1010, and the deliberation provisions of 41-3-1012.
(5) Because of the individual privacy involved, meetings of the committee, reports of the committee, and information on individuals' cases shared by committee members are confidential and subject to the confidentiality requirements of the department.
(6) The committee is subject to the call of the youth court judge to meet and confer with the judge on all matters pertaining to the foster care of a child before the youth court."
Section 14. Repealer. Sections 41-3-1002, 41-3-1009, and 41-3-1014, MCA, are repealed.
Section 15. Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations and to the Little Shell band of Chippewa.
Section 16. Effective date. [This act] is effective July 1, 2001.
- END -
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