HOUSE BILL NO. 243

INTRODUCED BY B. LAWSON

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING THE CHILD ABUSE AND NEGLECT LAWS; AMENDING, DELETING, AND ADDING DEFINITIONS; REVISING CHILD PROTECTIVE TEAMS; REQUIRING THE PRESENCE OF A PARENT, GUARDIAN, OR SCHOOL EMPLOYEE DURING CHILD INTERVIEWS AND REQUIRING AUDIOTAPING OR VIDEOTAPING OF THE INTERVIEW IN THE ABSENCE OF A PARENT OR GUARDIAN; PROVIDING LIABILITY FOR FALSE REPORTING OF CHILD ABUSE OR NEGLECT; REQUIRING EVIDENCE AND RECORDS TO BE PROVIDED TO A CHILD'S PARENT OR GUARDIAN WITHOUT COST; REVISING PROVISIONS REGARDING EMERGENCY PROTECTIVE SERVICES; PROVIDING FOR AN EMERGENCY PLACEMENT HEARING; REVISING PROVISIONS REGARDING A PETITION TO DETERMINE IF A CHILD IS A YOUTH IN NEED OF CARE; REVISING PETITIONS REGARDING TEMPORARY INVESTIGATIVE AUTHORITY; REVISING PROVISIONS REGARDING ADJUDICATORY AND DISPOSITIONAL HEARINGS; PROVIDING FOR CONTENTS OF, HEARINGS ON, AND AMENDMENT OF TREATMENT PLANS; AND AMENDING SECTIONS 41-3-101, 41-3-102, 41-3-108, 41-3-202, 41-3-203, 41-3-204, 41-3-205, 41-3-208, 41-3-301, 41-3-302, 41-3-303, 41-3-401, 41-3-402, 41-3-403, 41-3-404, 41-3-406, 41-3-412, 41-3-607, AND 42-2-608, MCA."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 41-3-101, MCA, is amended to read:

"41-3-101. Declaration of policy. (1) It is the policy of the state of Montana to:

(a) ensure that all youth are afforded an adequate physical and emotional environment to promote normal development;

(b) compel in proper cases the parent or guardian of a youth to perform the moral and legal duty owed to the youth;

(c) achieve these purposes in a family environment whenever possible;

(d) preserve the unity and welfare of the family whenever possible; and

(e) ensure that there is no forced removal of a child from the family based solely on an unsubstantiated allegation of abuse or neglect.

(2) It is the policy of this state to:

(a) protect, whenever possible, family unity;

(b) provide for the protection of children whose health and welfare are or may be adversely affected and further threatened by the conduct of those responsible for their care and protection;

(c) require a department social worker to interview the parents of a child to which a petition pertains, if they are reasonably available, before the state may file a petition for temporary investigative authority and protective services and to require that a judge may not issue an order granting the petition, except an order for immediate protection of the youth, until the parents, if they are reasonably available, are given the opportunity to appear before the judge or have their statements, if any, presented to the judge for consideration before an order is granted; and

(d) ensure that whenever removal of a child from the home is necessary, the child is entitled to maintain ethnic, cultural, and religious heritage whenever appropriate.

(3) It is intended that the mandatory reporting of abuse or endangerment cases by professional people and other community members to the appropriate authority will cause the protective services of the state to seek to prevent further abuses, protect and enhance the welfare of these children, and preserve family life whenever appropriate.

(4) In implementing the policy of this section, whenever it is necessary to remove a child from the child's home, the department shall, when it is in the best interests of the child , place the child with the child's extended family prior to placing the child in an alternative protective or residential facility. "

Section 2. 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 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 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 or nonmedical remedial health care recognized by an insurer licensed to provide disability insurance under Title 33, 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 legal guardian, due to religious beliefs, does not provide adequate health 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 substantial risk of serious harm to the child.

(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.

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

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

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

(ii) substantial risk of harm to a child's health or welfare.

(b) The term includes actual harm or substantial risk of harm by the acts or omissions of a person responsible for the child's welfare.

(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.

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

(8) "Emotional abuse" means injury to the emotional well-being or intellectual or psychological capacity of a child, as evidenced by an objective and substantial impairment of a child's physical, mental, or emotional ability to function.

(9) "Extended family" means any person who is or was the child's parent, grandparent, aunt, uncle, or adult brother or sister and who was not living with the child at the time of the reported abuse or neglect.

(10) "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 emotional abuse;

(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 malnutrition or 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) exposes or allows the child to be exposed to an unreasonable risk to the child's health or welfare by failing to intervene or eliminate the risk;

(f) 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

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

(11) "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.

(12) "Medical emergency" means a condition that necessitates immediate intervention to avert death or in which a delay in intervention will result in serious bodily injury.

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

(14) "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 40-6-234, Title 42, or part 6 of this chapter.

(15) "Physical abuse" means internal bleeding, substantial injury to skin, subdural hematoma, burns, bone fractures, extreme pain, permanent disfigurement, impairment of any bodily organ or function, or death if the injury or death is the result of either an intentional act, an intentional omission, or gross negligence.

(16) "Reasonable cause to suspect" means cause that would lead a reasonable person to believe that child abuse or neglect may have occurred or is occurring, based on all the facts and circumstances known to the person.

(17) "Residential setting" means an out-of-home placement where the child typically resides for longer than 30 days for the purpose of receiving food, shelter, security, guidance, and, if necessary, treatment.

(18) "Serious bodily injury" means bodily injury that:

(a) creates a substantial risk of death;

(b) causes serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ; or

(c) at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.

(19) (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.

(20) "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.

(21) "Social worker" means an employee of the department who, before the employee's field assignment, has been educated or trained in a program of social work or a related field that includes cognitive and family systems treatment and who has 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.

(22) "Treatment plan" means a written agreement between the department and the parties that must be approved by a court or a court order that establishes the action that must be taken to resolve the condition or conduct that resulted in the determination that a child is a youth in need of care.

(23) "Unfounded" means there is no objective basis to support an allegation.

(24) (a) "Withholding of medically indicated treatment" means the failure to respond to an infant's medical emergency, including the failure to provide 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 (24), "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 1 year of age or older.

(25) "Youth in need of care" means a youth who has been adjudicated or determined, after a hearing, to be or to have been abused or neglected."

Section 3. Section 41-3-108, MCA, is amended to read:

"41-3-108. Child protective teams. The county attorney, the county commissioners, or the department may convene one or more temporary or permanent interdisciplinary child protective teams. These teams may assist in assessing the needs of, formulating and monitoring a treatment plan for, and coordinating services to the child and the child's family. The supervisor of child protective services in a local service area or the supervisor's designee shall serve as the team's coordinator. Members may include:

(1) a social worker;

(2) a member of a local law enforcement agency;

(3) a representative of the medical profession;

(4) a county attorney;

(5) a school teacher;

(6) a parent;

(7) a licensed foster parent;

(8) an attorney, mediator, or paralegal;

(9) a member of a local civic organization; and

(10) if an Indian child or children are involved, someone, preferably an Indian person, knowledgeable about Indian culture and family matters."

Section 4. 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 circumstances surrounding the allegations of child abuse or neglect , which may include an investigation at the home of the child involved, the child's school or day-care facility, or any other place where the child is present 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 welfare, except as necessary to ascertain eligibility for state or federal assistance programs or to comply with the provisions of 41-3-411.

(2) An initial investigation of alleged abuse or neglect 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 a child interview is considered necessary, the social worker, county attorney, or peace officer may conduct an interview of the child but not in the absence of the parent, guardian, or an employee of the school or day-care facility attended by the child involved. An interview of the child may not be conducted in the absence of the child's parent or guardian unless an audiotape or videotape recording of the interview is made.

(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) If from the investigation the department has reasonable cause to suspect that the child suffered abuse or neglect, the department may petition the district court as it considers necessary pursuant to this chapter.

(6) (a) The department shall:

(i) after interviewing the parent or guardian, if reasonably available, document its determination regarding child abuse or neglect ; and

(ii) notify the child's family of its investigation and determination, unless the notification can reasonably be expected to result in harm to the child or other person.

(b) If from the investigation it is determined that the child has not suffered abuse or neglect and the initial report is determined to be unfounded or unsubstantiated, the department and the social worker, county attorney, or peace officer who conducted the investigation into the circumstances surrounding the allegations of child abuse or neglect shall destroy all of their records concerning the report and the investigation. The destruction must be completed within 30 days of the determination that the initial report is determined to be unfounded or unsubstantiated.

(7) 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 (6)(b), the department shall maintain a record system documenting investigations and determinations of child abuse and neglect cases.

(8) Any person reporting child 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 through its local office.

(9) The department shall establish procedures for determining whether a false report of child abuse or neglect has been made and for submitting all identifying and relevant information relating to that report to the appropriate law enforcement agency or the attorney general for prosecution."

Section 5. Section 41-3-203, MCA, is amended to read:

"41-3-203. Immunity from liability. (1) Anyone investigating or reporting any incident of child abuse or neglect under 41-3-201 or 41-3-202, participating in resulting judicial proceedings, or furnishing hospital or medical records as required by 41-3-202 is immune from any liability, civil or criminal, that might otherwise be incurred or imposed unless the person acted in bad faith or with malicious purpose or provided information knowing the information to be false.

(2) A person who provides information pursuant to 41-3-201 that is substantiated by the department or a person who uses information received pursuant to 41-3-205 that is substantiated by the department to refuse to hire or to discharge a prospective or current employee, volunteer, or other person who through employment or volunteer activities may have unsupervised contact with children is immune from civil liability unless the person acted in bad faith or with malicious purpose.

(3) A person who is named as a perpetrator in a false report under this section has a cause of action against the person who made the report in bad faith or who made a false report and against a person who advised another to make a false report for three times the actual damages sustained. The person who was named as a perpetrator in a false report is entitled to minimum damages of $1,000 and reasonable attorney fees and costs in the trial and appellate courts if the plaintiff proves by a preponderance of the evidence that the report was made in bad faith or was a false report and that the plaintiff suffered damages as a result of the report."

Section 6. 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) A 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 a 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.

(6) Any evidence or records obtained pursuant to this section must be provided, upon request, to the parent or guardian without cost."

Section 7. Section 41-3-205, MCA, is amended to read:

"41-3-205. Confidentiality -- disclosure exceptions. (1) The case records of the department of public health and human services 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 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 may also 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 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) Any records, evaluations, reports, or other evidence obtained or generated pursuant to this section must be provided to the parent, the guardian, or the parent or guardian's attorney without cost."

Section 8. Section 41-3-208, MCA, is amended to read:

"41-3-208. Rulemaking authority. (1) The department of public health and human services shall adopt rules to govern the procedures used by department personnel in preparing and processing reports and in making investigations authorized by this chapter.

(2) The department may adopt rules to govern the disclosure of case records , including reports of child abuse and neglect, provided that the rules are not inconsistent with the Montana Rules of Civil Procedure and this chapter."

Section 9. Section 41-3-301, MCA, is amended to read:

"41-3-301. Emergency protective service. (1) Any child protective social worker of the department , a peace officer, or the county attorney may place the youth in protective custody without a court order only if a medical emergency exists and if protective custody is necessary for the protection of the child. Whenever a child is removed from the home without a court order, a petition to continue protective custody or a petition to declare the child a youth in need of care pursuant to 41-3-401 must be filed within 24 hours after the child is taken into custody.

(2) (a) When a medical emergency does not exist, the department or a law enforcement agency may petition the court for an emergency order to take the child into protective custody.

(b) The petition must be accompanied by a sworn affidavit by a department agent or an individual having personal knowledge of the case. The affidavit must include an allegation that the child appears to have been abused, neglected, or abandoned and the basis for that allegation.

(c) Except as provided in this subsection (2)(c), before the court may consider a petition for emergency protective services under this section, a petition must be accompanied with a statement by the child's parent or guardian, if the parent or guardian is reasonably available. The petition may be filed ex parte only with the support of an affidavit that shows that notice to the child's parent or guardian prior to filing the petition will likely result in further harm to the child.

(d) Upon a showing of probable cause to believe that the child has been abused, neglected, or abandoned and that protective custody is necessary for the protection of the child, the court may issue an order for protective custody.

(e) An agent of the department who is found to have knowingly made a false statement in the sworn affidavit or a person who has been found to have knowingly provided false information that was used in making a false statement in the sworn affidavit is guilty of a felony.

(3) An order of the court under subsection (2) is effective immediately. The court shall hold an emergency hearing within 5 calendar days after the child is taken into custody to determine whether protective custody may continue and, if protective custody is allowed to continue, whether the child may be safely placed with a member of the child's extended family pending review of the child's circumstances.

(4) Except as provided in subsection (1), an agent of the department who is found to have purposely or knowingly taken a child into custody without a valid court order is guilty of a misdemeanor.

(5) A child who has been removed from the child's home or any other place for the child's protection or care may not be placed in a detention center.

(6) A petition must be filed within 48 hours of emergency placement of a child .

(7) The department shall make the necessary arrangements for the child's well-being as are necessary prior to the first court hearing."

Section 10. Section 41-3-302, MCA, is amended to read:

"41-3-302. Responsibility of providing protective services. (1) The department has the primary responsibility to provide the protective services authorized by this chapter .

(2) The department shall respond to emergency reports of known or suspected child abuse or neglect 24 hours a day, 7 days a week."

Section 11. 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 and shall perform the following general duties:

(a) conduct investigations that are necessary to ascertain the facts constituting the alleged abuse or neglect;

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

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

(e) 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) perform other duties as directed by the court.

(3) The guardian ad litem has the authority to petition the court for any services or remedy that is in the best interests of the child.

(4) Any interested person may petition the court for the removal and replacement of the guardian ad litem if the guardian ad litem fails to perform the duties of the appointment."

NEW SECTION. Section 12. Emergency placement hearing. (1) A person or agency placing a child shall notify the parents, guardian, or other person having legal custody of the child at the time the placement is made of the date, time, and place of the emergency placement hearing. The notice must include a summary of procedures involved in dependency cases and a notification of the right to be represented by counsel. If the person or agent of the department is unable to notify the parent, guardian, or person having legal custody of the child at the time the placement is made, the person or agent of the department shall file an affidavit with the court stating the reasonable efforts that were made to give notice of the emergency placement hearing to the child's parent, guardian, or person having legal custody of the child.

(2) A hearing conducted pursuant to this section must be limited to the testimony of an agent of the department, the child's parent, guardian, or person having legal custody of the child, and any member of the child's extended family having knowledge of the welfare of the child.

(3) At an emergency placement hearing, the department shall establish by a preponderance of the evidence that reasonable grounds for removal exist and that the provision of appropriate and available services will not eliminate the need for placement.

(4) If the department establishes that reasonable grounds for the removal exist and placement of the child within the extended family is available, the child must be placed with a member of the extended family under terms and conditions that will ensure the safety of the child. However, if it is established by a preponderance of the evidence that the placement of the child with extended family is not within the best interests of the child, the court shall place the child in an alternative protective or residential facility.

(5) An order for placement of a child in shelter care must identify the parties present at the hearing and must contain written findings that:

(a) placement in shelter care is necessary based on evidence that:

(i) the child has been abused, neglected, or abandoned or is suffering from or in imminent danger of illness or injury as a result of abuse, neglect, or abandonment;

(ii) the custodian of the child has materially violated a condition of placement imposed by the court; or

(iii) the child has no parent or extended family member immediately known and available to provide supervision and care that will ensure the safety of the child;

(b) placement in shelter care is in the best interests of the child; and

(c) the continued presence of the child in the home is contrary to the best interests of the child because the home situation presents a substantial and immediate danger to the child that cannot be mitigated by the provision of protective services.

(6) The court may not issue an order for emergency placement of a child for more than 90 days.

Section 13. Section 41-3-401, MCA, is amended to read:

"41-3-401. Petitions for youth in need of care. (1) The county attorney, attorney general, or an attorney hired by the county is responsible for filing all petitions alleging that a child is a youth in need of care.

(2) The petition alleging that a child is a youth in need of care must be supported by an affidavit of an agent of the department accompanied by a detailed report on all facts and findings known to the department to support the petition.

(3) If temporary legal custody of the child is sought in the petition, the request must be made in the original petition to declare a child a youth in need of care and the petition must specify the department's request for placement of the child.

(4) Upon receipt of a proper petition, 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.

(5) A petition alleging that a child is a youth in need of care is a civil action brought in the name of the state of Montana. The Montana Rules of Civil Procedure apply and take precedence over any administrative rule with the exception that the reporting party may not be disclosed without a court order. Discovery must be provided by the department without cost to any party, except that the costs incurred by either party may be recovered as provided in civil law.

(6) The parents or parent, guardian, or other person or agency having legal custody of the youth named in the petition must be served with a copy of the petition and summons not less than 20 days before the date set for hearing.

"

Section 14. Section 41-3-402, MCA, is amended to read:

"41-3-402. Petition for temporary investigative authority . (1) Upon a showing of probable cause that a child may be abused or neglected, the county attorney, the attorney general, or an attorney hired by the county may file a petition for temporary investigative authority .

(2) A petition for temporary investigative authority must state the specific authority requested and the facts establishing how the specific authority requested is likely to establish whether probable cause exists that a youth is abused or neglected .

(3) The petition for temporary investigative authority 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 an agent of the department stating in detail all material facts upon which the request is based.

(4) The petition, affidavit, or report of the department must contain information regarding statements, if any, made by the parents detailing the parents' statement of the facts of the case. "

Section 15. Section 41-3-403, MCA, is amended to read:

"41-3-403. Petition and order for temporary investigative authority.

(1) A petition for temporary investigative authority is limited to the following:

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

(b) medical evaluation of the child;

(c) right to interview the child outside the presence of the parent, guardian, or person having legal custody of the child, provided that in every case in which a child is interviewed, the interview must be audiotaped or videotaped and preserved for the parties' use;

(d) access to medical records pertaining to the child who is the subject of the inquiry;

(e) access to the school records of the child who is the subject of the inquiry; and

(f) the right to require any parent, guardian, or person having legal custody of the child to submit to a blood test for alcohol or drugs whenever the abuse of drugs or alcohol are implicated in the circumstances that resulted in the alleged abuse or neglect.

(2) An order for temporary investigative authority is limited in scope to investigating the original allegations reported, but may not preclude the department from reporting other abuse observed while conducting the investigation.

(3) The order for temporary investigative authority must specify the nature of the abuse or specify the type of neglect reported and limit the investigation to that issue. The order for temporary investigative authority may also order any of the provisions in subsection (1).

(4) An order for temporary investigative authority may not be issued for a period longer than 30 days, and the case must be terminated and sealed in the absence of a further petition being filed under this chapter.

"

Section 16. Section 41-3-404, MCA, is amended to read:

"41-3-404. Adjudicatory hearing -- youth in need of care.

(1) The hearing on a petition to find a child a youth in need of care must be held not less than 30 and not more than 90 days after the filing of a petition in the absence of an agreement or order of continuance. Failure to hold a hearing within the time specified in this subsection is a basis for the dismissal of the action.

(2) If the court determines that the child is not a youth in need of care, the petition must be dismissed and any previous order or record of the action must be sealed or destroyed pursuant to 41-3-202(6)(b).

(3) If it is established by a preponderance of the evidence that the child is a youth in need of care, the court shall set a date for a dispositional hearing to be conducted within 30 days . The court may enter an interim treatment plan pending the dispositional hearing. "

Section 17. Section 41-3-406, MCA, is amended to read:

"41-3-406. Dispositional hearing -- temporary legal custody. (1) Except as provided in subsection (2), if a youth is found to be a youth in need of care under 41-3-404, the court, during the permanency plan hearing provided in 41-3-412 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 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) a member of the child's extended family;

(ii) the department; or

(iii) 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;

(d) order any party to the action to do what is necessary pursuant to [section 20] to give effect to the final treatment plan, 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.

(2) A dispositional hearing may not be required when all parties agree to the terms, requirements, and conditions of the final treatment plan and the treatment plan is approved by the court.

(3) Prior to granting temporary legal custody, the court shall make the determination that:

(a) returning the child to the child's parent or guardian would create a substantial risk of harm 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.

(4) In making a determination regarding the risk of harm to the child , failure of the child's parent or guardian to comply with, in whole or in part, the terms 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.

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

(c) dismissal.

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

(7) If an extension of temporary legal custody is granted to the department, the court shall state the reasons why the child was not returned home and the conditions upon which the child may be returned home.

"

Section 18. Section 41-3-412, MCA, is amended to read:

"41-3-412. Permanency plan hearing. (1) A permanency plan hearing must be held by the court no later than 12 months after the initial order for temporary custody pursuant to 41-3-406 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 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) 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) At least 3 days prior to the permanency plan hearing, an attorney or advocate for a parent or guardian may submit an informational report to the court for review.

(4) 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.

(5) 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.

(6) 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."

NEW SECTION. Section 19. Summons. (1) Upon the filing of a petition to find a child a youth in need of care, the court shall issue summons and require response from the parent, guardian, or person having legal custody of the child.

(2) A summons issued under this section must advise the respondents of the right to counsel and that if the parent, guardian, or person having legal custody of the child cannot afford counsel, counsel will be provided for them. The court may require a parent, guardian, or person having legal custody of the child to pay the costs of court-appointed counsel in any proceeding pursuant to this section. Costs must be limited to reasonable compensation plus the actual costs incurred by the court-appointed counsel.

NEW SECTION. Section 20. Treatment plans -- hearing -- contents -- amendments. (1) Upon the declaration that a child is a youth in need of care, the court may order the department to provide temporary protective services. The order must be in the form of an interim treatment plan.

(2) An interim treatment plan may be issued for a period of not more than 30 days and may require the department to provide the services that are necessary for the welfare of the child in the interim. At the time the court enters an order establishing an interim treatment plan, it shall establish a hearing date within 30 days to hear evidence on the content of a final treatment plan.

(3) Every treatment plan, whether final or interim, must contain the following information:

(a) the identification of the problems or conditions that resulted in the abuse or neglect of a child;

(b) the treatment goals and objectives for each condition or requirement established in the plan. If the child has been removed from the home, the treatment plan must include, but is not limited to, the conditions or requirements that must be established for the safe return of the child to the family.

(c) the projected time necessary to complete each of the treatment objectives;

(d) the specific treatment objectives that clearly identify the separate roles and responsibilities of all parties addressed in the treatment plan; and

(e) the signature of all parties and the guardian ad litem, unless the plan is ordered by the court.

(4) Whenever a party is represented by an attorney, the treatment plan must be negotiated in the presence of the attorney or signed by that attorney acknowledging that the treatment plan has been reviewed.

(5) Whenever a dispositional hearing is required to establish a final treatment plan, the department shall establish by a preponderance of the evidence that each condition, requirement, or objective set forth in the treatment plan will address an issue that caused the child to be adjudicated a youth in need of care.

(6) A treatment plan may include but is not limited to any of the following remedies, requirements, or conditions:

(a) the right of entry into the child's home for the purpose of assessing compliance with the terms and conditions of a treatment plan;

(b) the requirement of either the child or the child's parent or guardian to obtain medical or psychiatric diagnosis and treatment through a physician or psychiatrist licensed in the state of Montana;

(c) the requirement of either the child or the child's parent or guardian to obtain psychological treatment or counseling through a designated psychologist or licensed professional counselor licensed in the state of Montana;

(d) the requirement of either the child or the child's parent or guardian to obtain and follow through with alcohol or substance abuse evaluation and counseling, if necessary;

(e) the requirement that either the child or the child's parent or guardian be restricted from associating with or contacting any individual who may be the subject of a department investigation;

(f) the requirement that either the child or the child's parent or guardian be restricted from traveling outside the jurisdiction of the court without the permission of the department's agent;

(g) the requirement that the child's parent or guardian complete financial affidavits and provide the department with financial information sufficient to determine whether the child's parent or guardian is able to contribute and, if so, to establish a requirement that the child's parent or guardian shall contribute to reimburse the department for some or all of its costs and expenses pursuant to the requirements of 41-3-411. The department is the payor of last resort after all family, insurance, and other resources have been examined.

(h) the requirement that the child be placed in a temporary medical facility or a facility for protection of the youth;

(i) the requirement that the parent, guardian, or other person having physical or legal custody furnish services that the court may designate.

(7) The treatment plan may not require a parent, guardian, or child to obtain medical, psychiatric, psychological, or counseling treatment from an individual who is not licensed to perform such activity by the state of Montana.

(8) A treatment plan may not be altered, amended, continued, or terminated in the absence of an agreement between the parties or, after a hearing, in the absence of a court order.

(9) A treatment plan may be issued for a period of not more than 90 days but may be continued and extended by a court order after a hearing.

Section 21. 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 . A petition for termination must allege 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. The court may at any time on its own motion or the motion of any party appoint counsel for an indigent party.

(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 22. Section 42-2-608, MCA, is amended to read:

"42-2-608. Finding of unfitness. (1) The court may terminate parental rights for purposes of making a child available for adoption on the grounds of unfitness if:

(a) the court makes a determination that the parent has been judicially deprived of custody of the child on account of abuse or neglect toward the child;

(b) the parent has willfully abandoned the child, as defined in 41-3-102(10)(f), in Montana or in any other jurisdiction of the United States;

(c) it is proven, to the satisfaction of the court, that the parent, if able, has not contributed to the support of the child for an aggregate period of 1 year before the filing of a petition for adoption;

(d) it is proven, to the satisfaction of the court, that the parent is in violation of a court order to support either the child that is the subject of the adoption proceedings or other children with the same birth mother;

(e) the parent has been found guilty by a court of competent jurisdiction of:

(i) aggravated assault on the adoptee, as provided in 45-5-202;

(ii) sexual assault on a child, as provided in 45-5-502;

(iii) sexual intercourse without consent, as provided in 45-5-503, if the victim was a child;

(iv) incest, as provided in 45-5-507, if the victim was a child;

(v) homicide of a child, as provided in 45-5-102 or 45-5-103;

(vi) sexual abuse of a child, as provided in 45-5-625; or

(vii) ritual abuse of a minor, as provided in 45-5-627;

(f) the child has been maintained by a public or private children's institution, a charitable agency, a licensed child-placing agency, or the department for a period of 1 year without the parent contributing to the support of the child during that period, if able;

(g) a finding is made for a parent who is given proper notice of hearing:

(i) that the parent has been convicted of a crime of violence or of violating a restraining or protective order; and

(ii) the facts of the crime or violation and the parent's behavior indicate that the parent is unfit to maintain a relationship of parent and child with the child;

(h) a finding is made for a parent who is given proper notice of hearing and is a respondent to the petition to terminate parental rights and:

(i) by a preponderance of the evidence, it is found that termination is in the best interests of the child; and

(ii) upon clear and convincing evidence, it is found that one of the following grounds exists:

(A) if the child is not in the legal and physical custody of the other parent, that the respondent is not able or willing to promptly assume legal and physical custody of the child and to pay for the child's support in accordance with the respondent's financial means;

(B) if the child is in the legal and physical custody of the other parent and a stepparent who is the prospective adoptive parent, that the respondent is not able or willing to promptly establish and maintain contact with the child and to pay for the child's support in accordance with the respondent's financial means;

(C) placing the child in the respondent's legal and physical custody would pose a risk of substantial harm to the physical or psychological well-being of the child because the circumstances of the child's conception, the respondent's behavior during the mother's pregnancy or since the child's birth, or the respondent's behavior with respect to other children indicates that the respondent is unfit to maintain a relationship of parent and child with the child; or

(D) failure to terminate the relationship of parent and child would be detrimental to the child.

(2) In making a determination under subsection (1)(h)(ii)(D), the court shall consider any relevant factor, including the respondent's efforts to obtain or maintain legal and physical custody of the child, the role of other persons in thwarting the respondent's efforts to assert parental rights, the respondent's ability to care for the child, the age of the child, the quality of any previous relationship between the respondent and the child and between the respondent and any other children, the duration and suitability of the child's present custodial environment, and the effect of a change of physical custody on the child."

NEW SECTION. Section 23. Codification instruction. (1) [Section 12] 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 12].

(2) [Sections 19 and 20] 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 19 and 20].

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