House Bill No. 129
Introduced By soft
By Request of the Department of Public Health and Human Services
A Bill for an Act entitled: "An Act generally revising the law relating to child protective services; clarifying definitions; providing that the department of public health and human services may not be ordered to supervise visitation; limiting the requirement for foster care licensing; amending sections 40-4-218, 40-8-111, 41-3-102, 41-3-201, 41-3-202, 41-3-204, 41-3-205, 41-3-609, 41-3-1102, 41-3-1141, and 41-3-1142, MCA; and providing an immediate effective date."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 40-4-218, MCA, is amended to read:
"40-4-218. Judicial supervision. (1) Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child's upbringing, including the child's education, health care, and religious training, unless the court after hearing finds, upon motion by the noncustodial parent, that in the absence of a specific limitation of the custodian's authority, the child's physical health would be endangered or the child's emotional development significantly impaired.
(2) If both parents or all contestants agree to the order or if the court finds that in the absence of the order the child's
physical health would be endangered or the child's emotional development significantly impaired, the court may order
supervised visitation by the noncustodial parent. The court may not order the department of public health and human
services to exercise continuing supervision over the case to assure that the custodial or visitation terms of the decree are
carried out to supervise the visitation."
Section 2. Section 40-8-111, MCA, is amended to read:
"40-8-111. Consent required for adoption. (1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by:
(a) both parents, if living, or the surviving parent of a child, provided that consent is not required from a father or mother:
(i) adjudged guilty by a court of competent jurisdiction of assault on a child, as provided in 45-5-201; sexual assault on a child, as provided in 45-5-502; sexual intercourse without consent, as provided in 45-5-503, if the victim was a child; incest, as provided in 45-5-507, if the victim was a child; endangering the welfare of children, concerning a child, as provided in 45-5-622; sexual abuse of children, toward a child, as provided in 45-5-625; or ritual abuse of a minor, as provided in 45-5-627;
(ii) who has been judicially deprived of the custody of the child on account of cruelty or neglect toward the child;
(iii) who has, in the state of Montana or in any other state of the United States, willfully abandoned the child, as defined in
(iv) who has caused the child to be maintained by any public or private children's institution, any charitable agency, or any licensed adoption agency or the department of public health and human services of the state of Montana for a period of 1 year without contributing to the support of the child during that period, if able;
(v) if it is proved to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption; or
(vi) whose parental rights have been judicially terminated;
(b) the legal guardian of the child if both parents are dead or if the rights of the parents have been terminated by judicial proceedings and the guardian has authority by order of the court appointing the guardian to consent to the adoption;
(c) the executive head of an agency if the child has been relinquished for adoption to the agency or if the rights of the parents have been judicially terminated or if both parents are dead and custody of the child has been legally vested in the agency with authority to consent to adoption of the child; or
(d) any person having legal custody of a child by court order if the parental rights of the parents have been judicially terminated. In that case, the court having jurisdiction of the custody of the child shall consent to adoption and a certified copy of its order must be attached to the petition.
(2) The consents required by subsections (1)(a) and (1)(b) must be acknowledged before an officer authorized to take acknowledgments or witnessed by a representative of the department of public health and human services or of an agency or witnessed by a representative of the court."
Section 3. 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;
staff person providing care in a day-care facility;
(c) an employee of a public or private residential institution, facility, home, or agency; or
(d) any other person
legally responsible for the child's welfare in a residential setting.
(2) "Abused or neglected" means the state or condition of a child who has suffered child abuse or neglect.
(3) (a) "Adequate health care" means any medical care 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
medical 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 or substantial risk of harm to the child.
(c) The term does not include self-defense, defense of others, or action taken to prevent the child from self-harm that does not constitute harm to a child's health or welfare.
(4) "Child" or "youth" means any person under 18 years of age.
(5) (a) "Child abuse or neglect" means:
(i) harm to a child's health or welfare; or
(ii) threatened harm to a child's health or welfare.
(b) The term includes harm or threatened harm to a child's health or welfare by the acts or omissions of a person responsible for the child's welfare.
(6) "Department" means the department of public health and human services provided for in 2-15-2201.
(7) "Emotional abuse" means injury to the emotional well-being or intellectual or psychological capacity of a child, as
evidenced by an identifiable and substantial impairment of
or adverse effect upon a child's physical, mental, or emotional
ability to function. (7)(8) "Harm to a child's health or welfare" means the harm that occurs whenever the parent or other person responsible for
the child's welfare:
(a) inflicts or allows to be inflicted upon the child physical or
mental injury 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;
(e)(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 (f)(g) is unknown and has been unknown for a period of 90 days and reasonable efforts to identify and locate the parents
have failed. (8)(9) "Limited emancipation" means a status conferred on a youth by a court after a dispositional hearing in accordance
with 41-3-406 under which the youth is entitled to exercise some but not all of the rights and responsibilities of a person
who is 18 years of age or older. (9) "Mental injury" means an identifiable and substantial impairment of the child's intellectual or psychological
(10) "Parent" means a biological or adoptive parent
injury" abuse" means death, substantial or multiple skin bruising, or any other internal bleeding, any
SUBSTANTIAL injury to skin that causes bleeding or soft tissue swelling, subdural hematoma, INTENTIONAL burns,
bone fractures, extreme pain, permanent or temporary disfigurement, or impairment of any bodily organ or function, or
death if the injury or death is not accidental or is not justifiably explained. The term includes death, permanent or
temporary disfigurement, and impairment of a bodily organ or function sustained as a result of excessive corporal
(12) "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.
(13) "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.
(12)(14) (a) "Sexual abuse" means the commission of sexual assault, sexual intercourse without consent, indecent exposure,
deviate sexual conduct, or incest, as described in Title 45, chapter 5, part 5.
(b) Sexual abuse does not include any necessary touching of an infant's or toddler's genital area while attending to the sanitary or health care needs of that infant or toddler by a parent.
(13)(15) "Sexual exploitation" means allowing, permitting, or encouraging a child to engage in a prostitution offense, as
described in 45-5-601 through 45-5-603, or allowing, permitting, or encouraging sexual abuse of children as described in
45-5-625. (14)(16) "Social worker" means an employee of the department who, prior to the employee's field assignment, has been
educated or trained or is receiving education or training in a program of social work or a related field that includes
cognitive and family systems treatment or who has equivalent verified experience or verified training in the investigation of
child abuse, neglect, and endangerment. This definition does not apply to any provision of this code that is not in this
chapter. (15)(17) "Threatened harm to a child's health or welfare" means substantial risk of harm to the child's health or welfare. (16)(18) (a) "Withholding of medically indicated treatment" means the failure to respond to an infant's life-threatening
conditions by providing treatment, including appropriate nutrition, hydration, and medication, that, in the treating
physician's or physicians' reasonable medical judgment, will be most likely to be effective in ameliorating or correcting the
(b) The term does not include the failure to provide treatment, other than appropriate nutrition, hydration, or medication, to an infant when, in the treating physician's or physicians' reasonable medical judgment:
(i) the infant is chronically and irreversibly comatose;
(ii) the provision of treatment would:
(A) merely prolong dying;
(B) not be effective in ameliorating or correcting all of the infant's life-threatening conditions; or
(C) otherwise be futile in terms of the survival of the infant; or
(iii) the provision of treatment would be virtually futile in terms of the survival of the infant and the treatment itself under
the circumstances would be inhumane. For purposes of this subsection
(16) (18), "infant" means an infant less than 1 year
of age or an infant 1 year of age or older who has been continuously hospitalized since birth, who was born extremely
prematurely, or who has a long-term disability. The reference to less than 1 year of age may not be construed to imply that
treatment should be changed or discontinued when an infant reaches 1 year of age or to affect or limit any existing
protections available under state laws regarding medical neglect of children over 1 year of age. (17)(19) "Youth in need of care" means a youth who is abused or neglected."
Section 4. Section 41-3-201, MCA, is amended to read:
"41-3-201. Reports. (1) When the professionals and officials listed in subsection (2) know or have reasonable cause to
suspect, as a result of information they receive in their professional or official capacity, that a child is abused or neglected,
they shall report the matter promptly to the department of public health and human services or its local affiliate
, which then
shall notify the county attorney of the county where the child resides.
(2) Professionals and officials required to report are:
(a) physician, resident, intern, or member of a hospital's staff engaged in the admission, examination, care, or treatment of persons;
(b) a nurse, osteopath, chiropractor, podiatrist, medical examiner, coroner, dentist, optometrist, or any other health or mental health professional;
(c) Christian Science practitioner and religious healers;
(d) school teachers, other school officials, and employees who work during regular school hours;
(e) a social worker, operator or employee of any registered or licensed day-care or substitute care facility, staff of a
resource and referral grant program organized under 52-2-711 or of a child and adult food care program, or
any other an
operator or employee of a child-care facility;
(f) foster care, residential, or institutional worker;
(g) a peace officer or other law enforcement official;
(h) clergy; or
(i) a guardian ad litem or a court-appointed advocate who is authorized to investigate a report of alleged abuse or neglect.
(3) Any person may make a report under this section if the person knows or has reasonable cause to suspect that a child is abused or neglected.
(4) (a) Except as provided in subsection (4)(b) or (4)(c), a person listed in subsection (2) may not refuse to make a report as required in this section on the grounds of a physician-patient or similar privilege.
(b) A clergyperson or priest is not required to make a report under this section if:
(i) the knowledge or suspicion of the abuse or neglect came from a statement or confession made to the clergyperson or priest in that person's capacity as a clergyperson or priest;
(ii) the statement was intended to be a part of a confidential communication between the clergyperson or priest and a member of the clergyperson's or priest's church or congregation; and
(iii) the person who made the statement or confession does not consent to the disclosure by the clergyperson or priest.
(c) A clergyperson or priest is not required to make a report under this section if the communication is required to be confidential by canon law, church doctrine, or established church practice.
(5) The reports referred to under this section must contain:
(a) the names and addresses of the child and the child's parents or other persons responsible for the child's care;
(b) to the extent known, the child's age and the nature and extent of the child's injuries, including any evidence of previous injuries;
(c) any other information that the maker of the report believes might be helpful in establishing the cause of the injuries or showing the willful neglect and the identity of person or persons responsible for the injury or neglect; and
(d) the facts that led the person reporting to believe that the child has suffered injury or injuries or willful neglect, within the meaning of this chapter."
Section 5. 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 abuse or neglect of the child, 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
, into the
circumstances surrounding the injury of the child, and into all other nonfinancial matters that in the discretion of the
investigator are relevant to the investigation. In conducting an investigation under this section, a social worker may not
inquire into the financial status of the child's family or of any other person responsible for the child's care, except as
necessary to ascertain eligibility for state or federal assistance programs or to comply with the provisions of 41-3-406.
(2) An initial investigation
into the home of the child 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 considered appropriate by the social worker, county attorney, or
peace officer conducting an interview of the child, an employee of the
public school attended by the child involved may
participate in any interview of the child if the child is enrolled in kindergarten through 8th grade.
(4) If the child's interview is videotaped, an unedited videotape with audio track must be made available, upon request, for unencumbered review by the family.
(5) (a) If from the investigation
it appears the department has reasonable cause to suspect that the child suffered abuse or
neglect, the department shall may provide protective services to the child pursuant to 41-3-301 and may provide protective
services to any other child under the same care. The department shall advise the county attorney and:
(i) AFTER INTERVIEWING THE PARENT OR GUARDIAN, IF REASONABLY AVAILABLE, document its determination regarding abuse or neglect of a child; 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
appears is determined that the child has not suffered abuse or neglect and the initial report is
determined to be unfounded, the department AND THE SOCIAL WORKER, COUNTY ATTORNEY, OR PEACE
OFFICER WHO CONDUCTED THE INVESTIGATION INTO THE CIRCUMSTANCES SURROUNDING THE
ALLEGATIONS OF ABUSE OR NEGLECT shall destroy all of its THEIR records concerning the report and the
investigation. The destruction must be completed within 20 30 days of the determination that the child has not suffered
abuse or neglect.
(6) The investigating social worker, within 60 days of commencing an investigation, shall also furnish a written report to
the department and, upon request, to the family. Subject to subsection (5)(b), the department shall maintain a record system
containing documenting investigations and determinations of child abuse and neglect cases.
(7) Any person reporting abuse or neglect that involves acts or omissions on the part of a public or private residential
institution, home, facility, or agency is responsible for ensuring that the report is made to the department
, through its local
affiliate, and the county attorney of the county in which the facility is located office."
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) Any person or official required to report under 41-3-201 may take or cause to be taken photographs of the area of trauma visible on a child who is the subject of a report. The cost of photographs taken under this section must be paid by the department.
(3) When any person required to report under 41-3-201 finds visible evidence that a child has suffered abuse or neglect, the person shall include in the report either a written description or photographs of the evidence.
(4) A physician, either in the course of providing medical care to a minor or after consultation with child protective services, the county attorney, or a law enforcement officer, may require x-rays to be taken when, in the physician's professional opinion, there is a need for radiological evidence of suspected abuse or neglect. X-rays may be taken under this section without the permission of the parent or guardian. The cost of the x-rays ordered and taken under this section must be paid by the county child protective service agency.
(5) All written, photographic, or radiological evidence gathered under this section must be sent to the local affiliate of the
department at the time that the written confirmation report is sent or as soon after the report is sent as is possible. If a
confirmation report is not made, the evidence and the initial report must be destroyed as provided in
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
will 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; or
(y) a member of a youth placement committee formed under the provisions of 41-5-525.
(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."
Section 8. Section 41-3-609, MCA, is amended to read:
"41-3-609. Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(a) the parents have relinquished the child pursuant to 40-6-135;
(b) the child has been abandoned by the parents as set forth in
(c) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or
(d) the parent has failed to successfully complete a treatment plan approved by the court within the time periods allowed for the child to be in foster care under 41-3-410 unless it orders other permanent legal custody under 41-3-410.
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(b) a history of violent behavior by the parent;
(c) a single incident of life-threatening or gravely disabling injury to or disfigurement of
the a child caused by the parent;
(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent's ability to care and provide for the child;
(e) present judicially ordered long-term confinement of the parent;
(f) the injury or death of a
sibling child due to because of proven parental abuse or neglect; and
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.
(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evaluation of the child's or the parent's physical, mental, and emotional conditions.
(4) A treatment plan is not required under this part upon a finding by the court following hearing if:
(a) two medical doctors or clinical psychologists submit testimony that the parent
is so severely mentally ill that the parent
cannot assume the role of parent;
(b) the parent is incarcerated for more than 1 year and a treatment plan is not practical considering the incarceration; or
(c) the death of a
sibling child caused by abuse or neglect by the parent has occurred.
(5) If a person is convicted of a felony in which sexual intercourse occurred or if a minor is adjudicated a delinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, a child is born, the court may terminate the offender's parental rights to the child at any time after the conviction or adjudication."
Section 9. Section 41-3-1102, MCA, is amended to read:
"41-3-1102. Definitions. For the purposes of this part, the following definitions apply:
(1) "Child-care agency" means a youth care facility in which substitute care is provided to 13 or more children or youth.
(2) "Department" means the department of public health and human services provided for in 2-15-2201.
(3) "Foster child" means a person under 18 years of age who has been placed by the department in a
licensed youth foster
home care facility. (4) "Operator of a youth care facility" means a person owning or operating a youth care facility into which the operator
takes any child or children for the purpose of caring for them and maintaining them and for which care and maintenance the
operator receives money or other consideration of value and which child is neither the operator's son, daughter, nor ward,
except that this part does not apply when any person accepts the care and custody of a child on a temporary basis and
simply as a temporary accommodation for the parent or parents, guardian, or relative of the child. (5)(4) "Person" means any individual, partnership, voluntary association, or corporation. (6)(5) "Respite care" means the provision of temporary, short-term supervision or care of a foster child, in an emergency or
on an intermittent basis, to provide foster parents relief from the daily care requirements of a foster child whose mental or
physical condition requires special or intensive supervision or care. Respite care includes but is not limited to homemaker
services, child care, and emergency care either in the home or out of the home. (7)(6) "Respite care provider" means a person who meets the qualifications and requirements established by the
department to provide respite care under 41-3-1151. (8)(7) "Substitute care" means full-time care of a youth in a residential setting for the purpose of providing food, shelter,
security and safety, guidance, direction, and if necessary, treatment to youth who are removed from or without the care and
supervision of their parents or guardian who is placed by the department, another state agency, or a licensed child-placing
agency and who has been determined by a court to be a youth in need of care, youth in need of supervision, or delinquent
youth. Individuals who provide care to youth who are recipients of services provided through the department's
developmental disabilities, mental health, or medicaid HOME- AND community COMMUNITY-BASED services
WAIVER program are also considered to be providing substitute care. This part does not apply when a person accepts the
care and custody of a child on a temporary basis as an accommodation for the parent or parents, guardian, or relative of the
child. (9)(8) "Youth care facility" means a facility licensed by the department or by the appropriate licensing authority in another
state and in which facility substitute care is provided to youth. The term includes youth foster homes, youth group homes,
and child-care agencies. (10)(9) "Youth foster home" means a youth care facility in which substitute care is provided to one to six children or youth
other than the foster parents' own children, stepchildren, or wards. (11)(10) "Youth group home" means a youth care facility in which substitute care is provided to 7 to 12 children or youth."
Section 10. Section 41-3-1141, MCA, is amended to read:
"41-3-1141. License required.
No (1) A person shall may not maintain or operate a youth care facility for any child or
children within the meaning of this part without first securing a license in writing from the department.
An extended family member or a A kinship care provider , as defined by the department, who provides unlicensed care
for a child placed by PURSUANT TO THE LEGAL AUTHORITY OF the department must receive approval in writing
from the department.
(3) AN EXTENDED FAMILY MEMBER, AS DEFINED BY THE DEPARTMENT, WHO PROVIDES UNLICENSED CARE FOR A YOUTH WHO RECEIVES SERVICES PROVIDED THROUGH THE DEPARTMENT'S DEVELOPMENTAL DISABILITIES PROGRAM, MENTAL HEALTH PROGRAM, OR MEDICAID HOME- AND COMMUNITY-BASED SERVICES WAIVER PROGRAM MUST RECEIVE APPROVAL IN WRITING FROM THE DEPARTMENT.
(3)(4) No The department may not charge a fee shall be charged for such a license or approval granted under this section."
Section 11. Section 41-3-1142, MCA, is amended to read:
"41-3-1142. Issuance of license -- authority of issuing agency -- rules. (1) The department
is hereby authorized to may
issue licenses to persons operating youth care facilities or grant approval to OF persons providing kinship care KINSHIP
OR EXTENDED FAMILY CARE PROVIDERS and to prescribe the conditions upon which such licenses shall and
approvals may be issued. and to The department may make such rules as it may deem advisable necessary for the licensure
or approval, operation, and regulation of such those facilities for minor children consistent with the welfare of such children
Such licensing agency shall have the power and authority to The department may inspect all such licensed facilities
through its duly authorized representatives and to cancel or approved homes and, as appropriate, undertake action,
including but not limited to the revocation of licenses theretofore issued for the failure to observe such rules and approvals.
(3) The person
operating such homes providing care in the facilities or homes shall give to such representative such the
department any information as that may be required and afford him the department every reasonable opportunity for
observing the operation of such the facilities or homes."
NEW SECTION. Section 12. Effective date. [This act] is effective on passage and approval.