House Bill No. 163

Introduced By j. johnson, menahan

By Request of the department of public health and human services



A Bill for an Act entitled: An Act generally revising and clarifying the laws governing adoption; providing procedures for various types of adoptions; providing for a putative father registry; providing for the relinquishment and termination of parental rights; providing for degrees of access to records; prescribing a fee for filing a petition for adoption; statutorily appropriating fees; amending sections 2-6-104, 2-18-606, 17-7-502, 25-1-201, 33-22-130, 33-30-1016, 33-31-114, 37-60-301, 40-6-108, 41-3-609, 41-5-603, 41-5-604, 50-15-223, and 52-2-505, MCA; repealing sections 40-6-125, 40-6-126, 40-6-127, 40-6-128, 40-6-129, 40-6-130, 40-6-135, 40-8-101, 40-8-102, 40-8-103, 40-8-104, 40-8-105, 40-8-106, 40-8-107, 40-8-108, 40-8-109, 40-8-110, 40-8-111, 40-8-112, 40-8-113, 40-8-114, 40-8-115, 40-8-116, 40-8-117, 40-8-121, 40-8-122, 40-8-123, 40-8-124, 40-8-125, 40-8-126, 40-8-127, 40-8-128, 40-8-135, 40-8-136, 40-8-201, 40-8-202, 52-2-401, 52-2-402, 52-2-403, 52-2-404, 52-2-405, 52-2-406, AND 52-2-407, MCA; and providing effective dates, applicability dates, and a termination date.



STATEMENT OF INTENT

A statement of intent is required for this bill because the bill gives the department of public health and human services authority to adopt administrative rules. The rules must provide procedures for the putative father registry, including methods of notification, filing, and accessing information. The department shall adopt rules for licensing child-placing agencies. To the extent feasible, the rules should incorporate existing procedures. The needs of the child in the adoption proceeding must be the primary focus of the rules.



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



Section 1.  Short title. [Sections 1 through 156] may be cited as the "Montana Adoption Act".



Section 2.  Adoption policy. (1) It is the policy of the state of Montana to ensure that the best interests of the child are met by adoption proceedings.

(2) The primary purpose of adoption is to help a child become a permanent member of a nurturing family that can give the child the care, protection, and opportunities essential for healthy personal growth and development.

(3) The well-being of the adopted child is the main objective in the placement of a child for adoption. The needs of the child must be the primary focus of adoption proceedings, with full recognition of the interdependent needs and interests of birth parents and adoptive parents.

(4) It is the policy of the state of Montana to support relationships between adoptees and their birth families when desired by the affected parties.



Section 3.  Definitions. As used in [sections 1 through 156], unless the context requires otherwise, the following definitions apply:

(1) "Adoptee" means an adopted person or a person who is the subject of adoption proceedings that are intended to result in the adoptee becoming the legal child of another person.

(2)  "Adoption" means the act of creating the legal relationship between parent and child when it does not exist genetically.

(3)  "Adoptive parent" means an adult who has become the mother or father of a child through the legal process of adoption.

(4)  "Agency" means a public or nonprofit entity that is licensed by any jurisdiction of the United States and that is expressly empowered to place children preliminary to a possible adoption.

(5)  "Birth parent" means the woman who gave birth to the child or the father of genetic origin of the child.

(6)  "Child" means any person under 18 years of age.

(7)  "Confidential intermediary" means a person certified by the department and under contract with or employed by a nonprofit entity with expertise in adoption.

(8) "Court" means a court of record in a competent jurisdiction and in Montana means a district court or a tribal court.

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

(10) "Direct parental placement adoption" means an adoption in which the parent of the child places the child with a prospective adoptive parent personally known and selected by the parent independent of an agency.

(11) "Extended family member" means a person who is or was the adoptee's parent, grandparent, aunt or uncle, brother or sister, or child.

(12) "Identifying information" means information that directly reveals or indirectly indicates the identity of a person and includes the person's name or address.

(13) "Nonidentifying information" means information that does not directly reveal or indirectly indicate the identity of a person, including:

(a)  medical information and information related to general physical characteristics;

(b)  family information, including marital status and the existence of siblings;

(c) religious affiliation;

(d)  educational background information that does not reveal specific programs or institutions attended;

(e)  general occupation;

(f)  hobbies; and

(g)  photographs provided by any of the parties involved that were specifically intended to be provided to another party.

(14) "Parent" means the birth or adoptive mother or the birth, adoptive, or legal father whose parental rights have not been terminated.

(15) "Placing parent" means a parent who is voluntarily making a child available for adoption.

(16) "Preplacement evaluation" means the home study process conducted by the department or a licensed child-placing agency that:

(a) assists a prospective adoptive parent or family to assess its own readiness to adopt; and

(b) assesses whether the prospective adoptive parent or family and home meet applicable standards.

(17) "Records" means all documents, exhibits, and data pertaining to an adoption.

(18) "Relinquishment" means the informed and voluntary release in writing of all parental rights with respect to a child by a parent to an agency or individual.



Section 4.  Venue. (1) Proceedings for adoption must be brought in the district court of the county where the petitioners reside.

(2) Petitions for appointment of a confidential intermediary may be filed:

(a) in the county where the decree of adoption was issued;

(b) in the county of residence of the petitioner; or

(c) if the petitioner resides out of state, in any county.



Section 5.  Who may be adopted. (1) A child is legally free for adoption if:

(a)  the child does not have a living parent;

(b)  the parental rights of the living parents of the child have been terminated according to the laws of this state or of another jurisdiction; or

(c)  the living parents, guardian authorized by the court, or department or agency with custody of the child consent to the adoption.

(2)  An adult may be adopted as provided in [sections 121 through 125].

(3) A stepchild may be adopted as provided in [sections 112 through 120].



Section 6.  Who may adopt. The following individuals who otherwise meet the requirements of [sections 1 through 156] are eligible to adopt a child:

(1)  a husband and wife jointly or either the husband or wife if the other spouse is a parent of the child;

(2)  an unmarried individual who is at least 18 years of age; or

(3)  a married individual at least 18 years of age who is legally separated from the other spouse or whose spouse has judicially been declared incompetent.



Section 7.  Adoption prohibited if child not legally free. (1) An adoption decree may not be entered if the child who is the subject of an adoption proceeding is not legally free for adoption.

(2) A child may be placed for adoption only by:

(a)  the department or another agency to which the child has been relinquished for purposes of adoption;

(b)  the department or another agency expressly authorized to place the child for adoption by a court order terminating the relationship between the child and the child's parent or guardian;

(c)  the child's parents; or

(d) a guardian expressly authorized by the court to place the child for adoption.



Section 8.  Rights and responsibilities of parties in adoption proceedings. (1) The legislature finds that the rights and interests of all parties affected by an adoption proceeding must be considered and balanced in determining the necessary constitutional protection and appropriate processes.

(2) The legislature finds that:

(a) every child deserves to be raised by a family in which support and care are promptly provided by one or more parents in a nurturing environment on a regular and ongoing basis;

(b) the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of children;

(c) an unmarried mother, faced with the responsibility of making crucial decisions about the future of a newborn child, is entitled to privacy, has the right to make timely and appropriate decisions regarding the mother's future and the future of the child, and is entitled to assurance regarding the permanence of an adoptive placement;

(d) adoptive children have a right to permanence and stability in adoptive placements;

(e) adoptive parents have a constitutionally protected liberty and privacy interest in retaining custody of an adopted child; and

(f) a birth father who is not married to the child's mother has the primary responsibility to protect the father's rights. The father's inchoate interest in the child requires constitutional protection only when the father has demonstrated a timely commitment to the responsibilities of parenthood, both during pregnancy and upon the child's birth. The state has a compelling interest in requiring a birth father to demonstrate that commitment by:

(i) timely and consistently providing financial support;

(ii) complying with the requirements of the putative father registry; and

(iii) demonstrating the establishment of a substantial relationship with the child as described in [section 73].

(3) If a birth father who is not married to the child's mother fails to grasp the opportunities that are available to the father to establish a relationship with the child, the father's parental rights will be lost entirely by the failure to timely exercise it or by the failure to comply with the available legal steps to substantiate the parental interest.



Section 9.  Need for finality -- balancing of interests. Finality is necessary in order to facilitate the state's compelling interest. The legislature finds that the interests of the child outweigh the interests of the state, the mother, the adoptive parents, and a birth father who is not married to the child's mother.



Section 10.  Presumed knowledge that child may be adopted without notice. A birth father who is not married to the mother of the child is presumed to know that the child may be adopted without the father's consent and that the father is required to comply with the provisions of [sections 1 through 156] and manifest a commitment to the father's parental responsibilities.



Section 11.  Unmarried birth mother's right of privacy. An unmarried birth mother has a right of privacy with regard to the mother's pregnancy and adoption plan. Birth mothers are encouraged to provide all known information about the birth father of any child for whom an adoption is planned.



Section 12.  Recognition of adoption in another jurisdiction. (1) A decree or order of adoption has the same effect as a decree or order of adoption issued by a court of this state if the decree or order is:

(a) issued by a court of any other state that is entitled to full faith and credit in this state; or

(b) entered by a court or administrative entity in another country acting pursuant to:

(i) that country's law; or

(ii) to any convention or treaty on intercountry adoption that the United States has ratified.

(2) The rights and obligations of the parties as to matters within the jurisdiction of this state must be determined as though the decree or order were issued by a court of this state.



Section 13.  Proceedings subject to Indian Child Welfare Act. A proceeding under [sections 1 through 156] that pertains to an Indian child, as defined in the Indian Child Welfare Act of 1978, 25 U.S.C. 1901, et seq., is subject to that act.



Section 14.  Interstate placement. The Interstate Compact on the Placement of Children, Title 41, chapter 4, governs:

(1) an adoption in this state of a child brought into this state from another state by a prospective adoptive parent;

(2) a person residing in or an agency doing business from another state who places the child for adoption in this state; and

(3) the placement of a Montana child in another state.



Section 15.  International placement. An adoption in this state of a child brought into this state from another country by a prospective adoptive parent or by a person who places the child for adoption in this state is governed by [sections 1 through 156] and is subject to any convention or treaty governing adoption that the United States has ratified and to any relevant federal law.



Section 16.  Fees for services -- special revenue account -- statutory appropriation. (1) The department shall establish fees that it may charge and that are reasonably related to the cost incurred by the department in completing or contracting for adoption services.

(2) The department may contract with licensed social workers or licensed child-placing agencies for the purposes of completing the preplacement or postplacement evaluation or for providing postplacement supervision.

(3) An agency contracting to perform the services may set and charge a reasonable fee commensurate with the services provided.

(4) There is an adoption services account in the state special revenue fund. The fees collected by the department under [sections 1 through 156] and from the district court filing fee pursuant to 25-1-201(1)(q) must be deposited into this account and may be used by the department for adoption services. The money in the account is statutorily appropriated, as provided in 17-7-502, to the department.



Section 17.  Rulemaking authority. The department may adopt rules to implement the administration and purposes of [sections 1 through 156].



Section 18.  Definitions. As used in [sections 18 through 38], unless the context requires otherwise, the following definitions apply:

(1) "Child" includes an unborn child.

(2) (a) "Putative father" means an individual who may be a child's birth father but who:

(i) is not married to the child's mother on or before the date that the child is born; or

(ii) has not established paternity of the child prior to the filing of a petition for termination of parental rights to the child for purposes of adoption.

(b) The term includes an individual who is:

(i) less than 18 years of age; and

(ii) not married to the child's mother even though the individual is a presumed father within the meaning of 40-6-105.

(3) "Registry" means the putative father registry established under [section 19].



Section 19.  Putative father registry. The putative father registry is established within the vital statistics bureau of the department. The department shall adopt rules to administer the registry.



Section 20.  Purpose of registry. (1) The purpose of the putative father registry is to provide notice of termination of parental rights to a putative father who asserts a parental interest in a child so that the putative father may appear in a proceeding and have an opportunity to establish that the putative father's inchoate rights in the child have vested because a substantial relationship with the child has been established as provided in [section 73].

(2) In addition to any other notice to which the putative father is entitled, a putative father of a child who complies with the requirements of the putative father registry is entitled to notice of any proceedings involving termination of parental rights to the child.



Section 21.  Presumed knowledge of pregnancy -- duty to register to be afforded notice -- putative and presumed fathers. (1) A person who engages in sexual relations with a member of the opposite sex is presumed to know that a pregnancy could result.

(2) In addition to any other notice to which the putative father is entitled, a putative father is entitled to notice of termination of parental rights proceedings for the purposes of adoption if the putative father has complied with the requirements of the putative father registry.

(3) An individual who is not married to the mother but who is presumed to be a father under 40-6-105 and registers in accordance with [sections 18 through 38] is entitled to receive notice of a termination of parental rights proceeding.



Section 22.  Registration. (1) In addition to any other notice to which the putative father is entitled, a putative father is entitled to notice of any proceedings to terminate parental rights involving a child whom the putative father might have fathered if the putative father timely files the following information with the department:

(a) the putative father's:

(i) full name;

(ii) address at which the putative father may be served by certified mail, return receipt requested, with notice of a proceeding to terminate parental rights;

(iii) social security number;

(iv) date of birth; and

(v) tribal affiliation if applicable;

(b) the mother's:

(i) name, including all other names known to the putative father that the mother uses; and

(ii) address, social security number, and date of birth, if known;

(c) the child's:

(i) name and place of birth, if known; or

(ii) the approximate date and location of a possible conception and the approximate expected date of delivery.

(2) If a putative father does not have an address where the putative father can receive notice of a termination of parental rights proceeding, the putative father may designate another person as an agent for the purpose of receiving notice. The putative father shall provide the department with the agent's name and the address at which the agent may be served. Service of notice by certified mail, return receipt requested, constitutes service of notice upon the putative father.

(3) A putative father shall register under this section on a registration form prescribed by the department or with a legibly typed or handwritten statement that provides the required information and that is submitted to the department pursuant to [section 24]. The registration must be signed by the putative father and notarized.

(4) A putative father who registers under this section is responsible for providing written updates regarding any change of the putative father's name or address.



Section 23.  When putative father to register -- actual knowledge of pregnancy not required. (1) In order to be entitled, because of registration, to receive notice of a termination of parental rights proceeding, a putative father's registration form complying with the requirements of [section 22] must be received by the department not later than 5 days prior to a hearing to terminate parental rights.

(2) A putative father may file all information required by [section 22] before a child's birth even though the putative father has no actual knowledge that a pregnancy has occurred or that a pregnancy has continued through gestation.



Section 24.  How registration submitted. A putative father shall submit a registration form:

(1) in person; or

(2) by facsimile transmission, mail, private courier, or express delivery service.



Section 25.  Burden of putative father to preserve rights upon receipt of notice. When a putative father receives notice that a child in whom the putative father claims a parental interest is the subject of a termination of parental rights proceeding, the putative father must appear at the hearing held on the petition to terminate parental rights and demonstrate, at a minimum, that the criteria set out in [section 73] for determining whether the putative father has made reasonable efforts to establish a substantial relationship with the child who is the subject of the proceedings have been met.



Section 26.  Presumption created -- admissibility in other proceedings. A person filing a registration form is presumed to be the father of the child for purposes of adoption unless the mother denies that the registrant is the father. The registration or any revocation that is filed is admissible in a paternity proceeding and creates a rebuttable presumption as to the paternity of the child. The registration creates a rebuttable presumption as to paternity of the child for purposes of an abuse or neglect proceeding under Title 41, chapter 3, or a child support enforcement action under Title 40, chapter 5.



Section 27.  Duties of department. (1) The department shall:

(a) prescribe a registration form for the information that a putative father submits under [section 22]; and

(b) make the registration forms available through:

(i) the department;

(ii) each clerk of a district court;

(iii) each local health department; and

(iv) each county clerk and recorder.

(2) A notice provided by the department that informs the public about the purpose and operation of the registry must be posted in a conspicuous place by each:

(a) clerk of a district court;

(b) driver's examination station of the motor vehicle division of the department of justice;

(c) local health department; and

(d) county clerk and recorder.

(3) The title and registration bureau of the motor vehicle division of the department of justice and the county treasurer of each county shall deliver a copy of the notice described in subsection (4) with the registration tags for every vehicle registered in Montana between July 1, 1997, and October 1, 1998. The department shall provide the copies of the notices to the title and registration bureau and the county treasurers.

(4) The notice under subsection (2) must include information regarding:

(a) where to obtain a registration form;

(b) where to register;

(c) the circumstances under which a putative father is required to register;

(d) the period under [section 23] during which a putative father is required to register in order to entitle the putative father to receive notice of a proceeding to terminate parental rights;

(e) the information that must be provided for the registry and what other actions the putative father is required to take to preserve a right to notice;

(f) the consequences of not submitting a timely registration; and

(g) the penalties for filing a false claim with the putative father registry.



Section 28.  Duties of department. (1) The department shall:

(a) prescribe a registration form for the information that a putative father submits under [section 22]; and

(b) make the registration forms available through:

(i) the department;

(ii) each clerk of a district court; and

(iii) each local health department.

(2) A notice provided by the department that informs the public about the purpose and operation of the registry must be posted in a conspicuous place by each:

(a) clerk of a district court;

(b) driver's examination station of the motor vehicle division of the department of justice;

(c) local health department; and

(d) county clerk and recorder.

(3) The notice under subsection (2) must include information regarding:

(a) where to obtain a registration form;

(b) where to register;

(c) the circumstances under which a putative father is required to register;

(d) the period under [section 23] during which a putative father is required to register in order to entitle the putative father to receive notice of an adoption;

(e) the information that must be provided for the registry and what other actions the putative father is required to take to preserve a right to notice;

(f) the consequences of not submitting a timely registration; and

(g) the penalties for filing a false claim with the putative father registry.



Section 29.  Information maintained in registry. The department shall maintain the following information in the registry:

(1) the registration information provided by the putative father under [section 22];

(2) the date that the department receives a putative father's registration;

(3) the name and affiliation of any person who requests that the department search the registry to determine whether a putative father is registered in relation to a mother whose child is or may be the subject of a termination proceeding and the date the request is submitted; and

(4) any other information that the department determines is necessary to access the information in the registry.



Section 30. Storage of data. The department shall store the registry's data in a manner so that the data is accessible through:

(1) the putative father's name;

(2) the mother's name, including her maiden name, if known;

(3) the date of birth of the putative father, the mother, and the child, if known;

(4) the child's name, if known; and

(5) the social security number for the putative father, the mother, and the child, if known.



Section 31.  Registry search -- request -- affidavit. (1) The following persons may at any time request that the department search the registry to determine whether a putative father is registered in relation to a child who is or may be the subject of a proceeding to terminate parental rights:

(a) a representative of the department;

(b) a representative of an agency when the agency is or may be arranging an adoption;

(c) a prospective adoptive parent or an attorney representing a prospective adoptive parent in a direct parental placement adoption who has the notarized consent of the birth mother; or

(d) any woman who is the subject of a registration.

(2) When a petition to terminate parental rights for purposes of an adoption is filed, the petitioner shall:

(a) request that the department search the registry at least 1 day after the expiration of the period specified under [section 23]; and

(b) file an affidavit prepared by the department in response to a request under subsection (2)(a) with the court presiding over the termination of parental rights proceeding under [section 63]. The affidavit must meet the requirements of subsections (4) and (5).

(3) A request for information about a registration from the department must be in writing.

(4) Not later than 5 days after receiving a request under subsection (2)(a), the department shall submit an affidavit to the requestor verifying whether a putative father has registered within the period allowed under [section 23] in relation to a mother whose child or expected child is the subject of the termination proceeding.

(5) Whenever the department finds that one or more putative fathers are registered, the department shall:

(a) submit a copy of each registration form with the department's affidavit; and

(b) include in the affidavit the date that the department representative, agency, or attorney submitted the request for the search.

(6) A court may not issue an order terminating parental rights unless the department's affidavit under subsection (5) is filed with the court.



Section 32.  Duties of department upon receipt of request. (1) Whenever the department receives a request, the department shall:

(a) search its records of putative father registrations and search its records for any acknowledgement of paternity filed pursuant to 40-6-105; and

(b) notify the requestor as to whether a paternity action has been filed and a paternity order issued to the department requiring the issuance of a new birth certificate concerning a child who is or may be the subject of an adoption that the attorney or agency is arranging.

(2) The department may charge a reasonable fee for responding to a request under this section.



Section 33.  Failure of agency to post notice. Failure of an agency to post a proper notice under [section 27] does not relieve a putative father of the obligation to register with the department in accordance with the putative father registry in order to entitle the putative father, because of registration, to notice of proceedings involving a child who may have been fathered by the putative father.



Section 34.  Revocation of registration. Unless a support order has been issued, a putative father may revoke a registration at any time by submitting to the department a signed, notarized statement revoking the registration.



Section 35.  Certified copy of registration form to be furnished upon request. The department shall furnish a certified copy of the putative father's registration form upon written request by:

(1) a putative father whose name appears on the registration form being requested;

(2) a mother whose name appears on the registration form being requested;

(3) upon reaching majority, a person who was the subject of a registration;

(4) a prospective adoptive parent or an attorney representing a prospective adoptive parent in a direct parental placement adoption who has the notarized consent of the birth mother;

(5) a licensed child-placing agency;

(6) a court that presides over a pending adoption;

(7) the child support enforcement division of the department; or

(8) a representative of the department involved in an adoption or a neglect and dependency proceeding under Title 41, chapter 3.



Section 36.  Information confidential. Except as otherwise provided in [sections 18 through 38], information contained within the registry is confidential.



Section 37. Registration of false information -- criminal and civil penalties. A person who purposely or knowingly registers false information or requests confidential information in violation of a putative father registry commits a misdemeanor and may be civilly liable for damages.



Section 38.  Responsibility of each party to protect interests -- putative fathers -- fraud no defense. (1) The legislature finds no practical way to remove all risk of fraud or misrepresentation in adoption proceedings and has provided protection of a putative father's rights. In balancing the rights and interests of the state and of all parties affected by fraud, specifically the child, the adoptive parents, and the putative father, the legislature determines that the putative father is in the best position to prevent or ameliorate the effects of fraud and that, therefore, the burden of establishing fraud against the putative father by clear and convincing evidence must be born by the putative father.

(2) Each parent of a child conceived or born outside of marriage to the other parent is responsible for that parent's own actions and assertion of their parental rights notwithstanding any action, statement, or omission of the other parent or third parties.

(3) A person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties. A fraudulent representation is not a defense for failure to comply with the requirements of the putative father registry and is not a basis for dismissal of a petition for adoption, vacation of an adoption decree, or an automatic grant of custody to the injured party.

(4) A putative father who resides in another state may contest an adoption prior to issuance of a decree of adoption and may assert the putative father's interest in the child. If the adoption is contested, the court shall hold an evidentiary hearing to determine if:

(a) the putative father resides and has resided in another state where the unmarried mother lived or resided either at the time of conception or through a portion of the pregnancy;

(b) the mother left that state, concealing the location from the putative father regarding where the mother could be contacted or located;

(c) the father has, through every reasonable means, attempted to locate the mother but has been unable to do so; and

(d) the putative father has complied with the requirements of the state where the mother previously resided or was located in order to protect and preserve the putative father's parental interest and rights concerning the child in cases of adoption.



Section 39.  Consent required. An adoption of a child may be decreed when written consents to adoption have been executed by:

(1)  the birth mother;

(2) the husband of the birth mother if the husband is the presumed father of the child under 40-6-105;

(3) any other person whose parental rights have been established by a court;

(4) the department or an agency that has custody of the child and the authority to place the child for adoption;

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

(6) the child, either in writing or in court, if the child is 12 years of age or older unless the child does not have the mental capacity to consent.



Section 40.  Persons whose consent not required. Consent to adoption of a child is not required from:

(1) an individual whose parental relationship to the child has been judicially terminated for unfitness or has been determined not to exist or who has waived parental rights;

(2) a parent who has been judicially declared incompetent;

(3) an individual who has not been married to the mother of the child and who, after the conception of the child, executes a notarized statement denying paternity or a notarized statement acknowledging paternity and denying any interest in the child; or

(4) the personal representative of a deceased parent's estate.



Section 41.  Form of consent. The consents required by [section 39] must be acknowledged before an officer authorized to take acknowledgments or witnessed by a representative of the department, an agency, or the court.



Section 42.  Child available for adoption -- voluntary acts of parents. A parent may voluntarily make a child available for adoption by:

(1) executing a voluntary relinquishment and consent to adoption;

(2) executing a denial of paternity; or

(3)  submitting a notarized acknowledgment of paternity and a denial of any interest in custody of the child.



Section 43.  Voluntary relinquishment -- validity. (1)  A voluntary relinquishment is not valid unless the parent specifically relinquishes custody of the child to the department, a licensed child-placing agency, or a specifically identified prospective adoptive parent and:

(a) the department or agency to whom the child is being relinquished has agreed in writing to accept custody of the child until the child is adopted; or

(b) the identified prospective adoptive parent has agreed in writing to accept temporary custody and to provide support and care to the child until that person's adoption petition is granted or denied.

(2) A voluntary relinquishment of a parent's rights solely to the child's other parent does not relieve the parent executing the relinquishment of any duty owed to the child or for the child's support.



Section 44.  Arrearages of child support -- responsibility to child. (1) A voluntary relinquishment of a parent's rights and responsibilities toward a child does not cancel any responsibility to pay arrearages of child support unless the party to whom the arrearages are owed agrees in writing to waive the payment of the arrearages.

(2) A parent who executes a voluntary relinquishment of rights and responsibilities toward a child remains financially responsible for the child until a court actually terminates parental rights to the child.



Section 45.  Who may relinquish -- to whom. (1) A parent or guardian whose consent to the adoption of a child is required may relinquish to the department or an agency all rights with respect to the child, including legal and physical custody and the right to consent to the child's adoption.

(2) A parent or guardian whose consent to the adoption of a child is required and who has filed a notice of parental placement under [section 95] for a direct parental placement adoption may:

(a) relinquish to the prospective adoptive parent all rights with respect to the child, including legal and physical custody; and

(b) consent to the child's adoption by the prospective adoptive parents.



Section 46.  Relinquishment by minor parent -- separate legal counsel in direct parental placement adoption. (1) A parent who is a minor has the right to relinquish all rights to that minor parent's child and to consent to the child's adoption. The relinquishment is not subject to revocation by reason of minority.

(2) In a direct parental placement adoption, a relinquishment and consent to adopt executed by a parent who is a minor is not valid unless the minor parent has been advised by an attorney who does not represent the prospective adoptive parent. Legal fees charged by the minor parent's attorney are an allowable expense that may be paid by prospective adoptive parents under [section 147], subject to the limitations in [section 148].



Section 47.  Time and prerequisites for execution of relinquishment and consent to adoption -- copy of preplacement evaluation -- notarization. (1) A parent whose consent to the adoption of a child is required may execute a relinquishment and consent to adoption only after the following criteria have been met:

(a) the child has been born;

(b)  not less than 72 hours have elapsed since the birth of the child;

(c) the parent has received counseling in accordance with [section 48]; and

(d) in a direct parental placement adoption:

(i) the parent has been informed that fees for any required counseling and legal fees are allowable expenses that may be paid by a prospective adoptive parent under [section 147], subject to the limitations set in [section 148];

(ii) if the parent is a minor, the parent has been represented by separate legal counsel; and

(iii) prior to the execution of the relinquishment, the parent has been provided a copy of the preplacement evaluation prepared pursuant to [section 86] pertaining to the prospective adoptive parent.

(2) A guardian may execute a relinquishment and consent to adopt at any time after being authorized by a court.

(3) The department or a licensed child-placing agency may execute a consent for the adoption at any time before or during the hearing on the petition for adoption.

(4) A child whose consent is required may execute a consent at any time before or during the hearing on the petition to adopt.

(5)  Except as provided in this section, a relinquishment and consent to adopt must be a separate instrument executed before a notary public.

(6)  If the person from whom a relinquishment and consent to adopt is required is a member of the armed services or is in prison, the relinquishment may be executed and acknowledged before any person authorized by law to administer oaths.



Section 48.  Counseling requirements. (1) Counseling of the birth mother is required in department, agency, and direct parental placement adoptions. If any other parent is involved in an adoptive placement, counseling of that parent is encouraged.

(2) Counseling must be performed by a person employed by the department or by a staff person of a licensed child-placing agency designated to provide this type of counseling. Unless the counseling requirement is waived for good cause by a court, a minimum of 3 hours of counseling must be completed prior to execution of a relinquishment of parental rights and consent to adopt. A relinquishment and consent to adopt executed prior to completion of required counseling is void.

(3)  During counseling, the counselor shall offer an explanation of:

(a)  adoption procedures and options that are available to a parent through the department or licensed child-placing agencies;

(b) adoption procedures and options that are available to a parent through direct parental placement adoptions, including the right to an attorney and that legal expenses are an allowable expense that may be paid by a prospective adoptive parent as provided in [sections 147 and 148];

(c) the alternative of parenting rather than relinquishing the child for adoption;

(d) the resources that are available to provide assistance or support for the parent and the child if the parent chooses not to relinquish the child;

(e) the legal and personal effect and impact of terminating parental rights and of adoption;

(f) the options for contact and communication between the birth family and the adoptive family;

(g) postadoptive issues, including grief and loss;

(h) the reasons for and importance of providing accurate medical and social history information under [section 81];

(i) the operation of the confidential intermediary program; and

(j) the fact that the adoptee may be provided with a copy of the original birth certificate upon request after reaching 18 years of age, unless the birth parent has specifically requested in writing that the vital statistics bureau withhold release of the original birth certificate.

(4)  The counselor shall prepare a written report containing a description of the topics covered and the number of hours of counseling. The report must specifically include the counselor's opinion of whether or not the parent understood all of the issues and was capable of informed consent. The report must, on request, be released to the person counseled, to the department, to an agency, or with the consent of the person counseled, to an attorney for the prospective adoptive parents.



Section 49.  Revocation of relinquishment and consent. (1) The parent who executed the relinquishment and consent to adopt and the department, agency, or prospective adoptive parent named or described in the relinquishment and consent to adopt may mutually agree to its revocation prior to the issuance of an order terminating parental rights.

(2) A relinquishment may not be revoked if an order has been issued terminating parental rights.



Section 50.  Conditional relinquishment and consent. (1) A relinquishment and consent to adopt may provide that it not take effect only if:

(a) the other parent does not execute a relinquishment and consent to adopt within a specified period; or

(b) a court decides to not terminate another individual's parental relationship to the child.

(2) A relinquishment and consent to adopt may not be conditioned on whether or not existing agreements for matters, including but not limited to visitation and ongoing communication with the child, are later performed.



Section 51.  Content of relinquishment and consent to adopt. (1) A relinquishment and consent to adopt must be in writing and must contain:

(a) the date, place, and time of the execution of relinquishment and consent to adopt;

(b) the name, date of birth, and current mailing address of the individual executing the relinquishment and consent to adopt;

(c) the date of birth and the name of the child to be adopted; and

(d) the name, address, and telephone numbers of the department or agency to which the child is being relinquished or the name, address, and telephone numbers of the prospective adoptive parent or the lawyer representing the prospective adoptive parent with whom the individual executing the relinquishment and consent has placed or intends to place the child for adoption.

(2) A relinquishment and consent to adopt executed by a parent or guardian must state that the parent or guardian executing the document is voluntarily and unequivocally consenting to the:

(a) permanent transfer of legal and physical custody of the child to the department or agency for the purposes of adoption; or

(b) transfer of permanent legal and physical custody to, and the adoption of the child by, a specific identified adoptive parent whom the parent or guardian has selected.

(3) A relinquishment and consent to adopt must state:

(a) that after the document is signed or confirmed in substantial compliance with this section, it is final and, except under a circumstance stated in [section 50], may not be revoked or set aside for any reason, including the failure of an adoptive parent to permit the individual executing the relinquishment and consent to adopt to visit or communicate with the child;

(b) that the adoption will extinguish all parental rights and obligations that the individual executing the relinquishment and consent to adopt has with respect to the child, except for arrearages of child support unless the arrearages are waived by the person to whom they are owed, and that the relinquishment will remain valid whether or not any agreement for visitation or communication with the child is later performed;

(c) that the individual executing the relinquishment and consent to adoption has:

(i) received a copy of the relinquishment and consent to adoption;

(ii) received a copy of a written agreement by the department, agency, or prospective adoptive parent to accept temporary custody and to provide support and care to the child until an adoption petition is granted or denied;

(iii) if required, received counseling services and information about adoption pursuant to [section 48] explaining the meaning and consequences of an adoption;

(d) in direct parental placement adoptions, that the individual has:

(i) been advised if the individual is:

(A) a minor parent, by a lawyer who is not representing an adoptive parent or the agency to which the child is being relinquished; or

(B) an adult, of the right to have a lawyer who is not representing an adoptive parent or the agency and whose fees are allowable expenses that can be paid by the prospective adoptive parents;

(ii) been provided with a copy of the prospective adoptive parent's preplacement evaluation;

(e) in agency and direct parental placement adoptions, that the individual has:

(i) been advised of the obligation to provide the medical and social history information required under [section 81] pertaining to disclosures; and

(ii) not received or been promised any money or anything of value for execution of the relinquishment and consent to adopt, except for payments authorized by [sections 147 and 148].

(4) A relinquishment and consent to adopt may provide that the individual who is relinquishing waives notice of any proceeding for adoption.



Section 52.  Consequences of relinquishment and consent to adopt. Except under a circumstance stated in [section 50] a relinquishment and consent to the adoption of a child that is executed by a parent or guardian in substantial compliance with [section 51] is final and irrevocable. The relinquishment and consent to adopt:

(1) unless a court orders otherwise to protect the welfare of the child, entitles the department, agency, or prospective adoptive parent named or described to the legal and physical custody of the child and imposes on that department, agency, or prospective adoptive parent responsibility for the support and medical and other care of the child;

(2) terminates, as provided in [section 44], any duty of the parent who executed the document with respect to the child except for arrearages of child support; and

(3) terminates any right of the parent or guardian who executed the document to:

(a) object to the placement of the child for adoption by the department or agency; and

(b) object to the child's adoption by the prospective adoptive parent.



Section 53.  Grounds for court to set aside relinquishment and consent. (1) The court shall set aside a relinquishment and consent to adopt if the individual who executed the relinquishment and consent establishes:

(a) by clear and convincing evidence, before a decree of adoption is issued, that the consent was obtained by fraud or duress; or

(b) by a preponderance of the evidence, that a condition permitting revocation has occurred, as expressly provided for in [section 50].

(2) A verbatim record of testimony must be made.



Section 54.  Remedy when relinquishment and consent to adopt revoked or set aside -- expediency. (1) If a relinquishment and consent to adopt that was executed by an individual is revoked or set aside, the department, agency, or prospective adoptive parent shall immediately return the child to the individual's custody and move to dismiss a proceeding for adoption or termination of the individual's parental rights to the child unless:

(a) the department has legal custody pursuant to a court order;

(b) there are grounds for the department to seek a court order under the provisions of Title 41, chapter 3; or

(c) the individual did not have legal custody of the child at the time the relinquishment and consent to adopt was executed.

(2) In the circumstances described in subsections (1)(a) through (1)(c) and when there is no existing court order providing for care and custody, the court shall issue an order providing for the care and custody of the child according to the best interests of the child under any law applicable to the circumstances of the case.

(3) Except as provided in subsection (1), if after revocation or the setting aside of a relinquishment or consent a child is not returned immediately by the department, agency, or prospective adoptive parent, the individual may petition the court for appropriate relief. The action must take precedence over other cases and matters in the court. The court shall examine the petition, hear the case, and render a decision as soon as possible.



Section 55.  Notarized denial of paternity -- no entitlement to notice. (1) Execution of a notarized denial of paternity of a child is a voluntary act that constitutes a waiver of all parental rights to the child, except for the duty to pay support if paternity is established or presumed.

(2) A notarized denial of paternity is irrevocable when executed. An individual who has executed a denial of paternity toward a child who is the subject of adoption proceedings is not entitled to notice of either the hearing to terminate parental rights or the hearing on an adoption petition.



Section 56.  Notarized acknowledgment of paternity and denial of interest in custody -- no entitlement to notice. (1)  Submission of a notarized acknowledgment of paternity and a denial of any interest in the custody of the child is a voluntary act that constitutes a waiver of all parental rights to the child but does not absolve the person of the duty to pay support.

(2) An individual who has executed an acknowledgment of paternity and denial of interest in the custody in a child who is the subject of adoption proceedings is not entitled to notice of either the hearing to terminate parental rights or the hearing on an adoption petition unless, subsequent to execution of the acknowledgment of paternity and denial of interest in custody, the individual has complied with all of the requirements of [section 22] and has done so within the time limits established in [section 23].



Section 57.  Timing of proceedings to terminate. (1) In order to provide notice to a putative father at the earliest possible time of an expectant mother's intent to release an expected child for adoption and in order to facilitate early placement of a child for adoption, an expectant mother may initiate proceedings to terminate paternal rights by filing a petition of intent to place a child for adoption prior to the birth of the child.

(2) A petition to terminate parental rights may also be filed after a child is born.



Section 58.  Expected child -- filing of petition indicating intent to release or consent to adoption. (1) A pregnant individual may file a petition with the court indicating the intention to place an expected child for adoption.

(2) The petition must include the following information:

(a)  the individual's intent to release the expected child for adoption;

(b)  the approximate date and location of conception;

(c)  the expected date of delivery;

(d)  any information concerning the identity and whereabouts of any putative or presumed father of the expected child; and

(e) in a situation in which there is a presumed father, the grounds upon which the individual relies in contending that the nonexistence of the father and child relationship can be established in an action brought under 40-6-107.

(3)  The petition may allege more than one putative or presumed father.

(4) The petition must be signed by the petitioner and notarized.



Section 59.  Notice to any named father of intent to release child for adoption. (1) Upon the filing of the petition under [section 58], the court shall issue a notice of intent to release a child for adoption.

(2) The notice must be served by the petitioner, in the manner provided by the Montana Rules of Civil Procedure, upon each putative or presumed father at least 20 days prior to the expected date of birth of the child. Proof of service must be filed with the court.

(3)  A notice of intent to release directed to a putative father must indicate the approximate date and location of conception of the child and the expected date of birth and must inform the putative father that:

(a) in order to protect the putative father's rights to the child, the putative father is required to file notice of intent to claim paternity before the expected date of birth;

(b)  the putative father is required to appear at the hearing at the time and date set by the court;

(c)  the failure to file notice of intent to claim paternity before the expected date of birth:

(i) constitutes a waiver of the right to receive the notice provided for in [section 66];

(ii) constitutes an irrevocable denial of the putative father's interest in the custody of the child; and

(iii) will result in the court's termination of the putative father's rights to the child.

(4) In addition to the information contained in subsection (3), a notice of intent to release directed to an individual presumed to be the father under 40-6-105 must also indicate the intention of the mother to ask for a declaration establishing the nonexistence of the father and child relationship and the grounds for seeking the declaration.



Section 60.  Notice to any named father of intent to release child for adoption. (1) Upon the filing of the petition under [section 58], the court shall issue a notice of intent to release a child for adoption.

(2) The notice must be served by the petitioner, in the manner provided by the Montana Rules of Civil Procedure, upon each putative or presumed father at least 20 days prior to the expected date of birth of the child. Proof of service must be filed with the court.

(3)  A notice of intent to release directed to a putative father must indicate the approximate date and location of conception of the child and the expected date of birth and must inform the putative father:

(a) that the putative father is required to appear at the hearing at the time and date set by the court;

(b)  of the rights and responsibilities to which the putative father will be entitled upon registering with the putative father registry; and

(c)  that the failure to timely comply with all requirements of filing with the putative father registry:

(i) constitutes a waiver of the right to receive the notice provided for in [section 22]; and

(ii) may result in the court's termination of the putative father's rights to the child.

(4) In addition to the information contained in subsection (3), a notice of intent to release directed to an individual presumed to be the father under 40-6-105 must also indicate the intention of the mother to ask for a declaration establishing the nonexistence of the father and child relationship and the grounds for seeking the declaration.



Section 61.  Venue. Proceedings to terminate parental rights may be filed in the court in the county in which a petitioner resides, the child resides, or an office of the agency that is placing the child is located.



Section 62.  Necessity for parental rights to be terminated. A child is not legally free for adoption until the parental rights of the birth parent or parents have been terminated by a court:

(1) as provided in [sections 1 through 156];

(2) pursuant to Title 41, chapter 3; or

(3) of competent jurisdiction in another state or country.



Section 63.  Petition for termination of parental rights. (1) Pending the termination or other disposition of the rights of the father of the child, the birth mother may execute a relinquishment and consent to adoption.

(2) The department, a licensed child-placing agency, the prospective adoptive parent to whom the relinquishment is issued, or a guardian with custody of the child shall file with the court a signed and notarized petition for termination of parental rights pursuant to [sections 1 through 156] or pursuant to Title 41, chapter 3.

(3) At the request of the relinquishing parent, the execution of a relinquishment may be conditioned as set forth in [section 50].

(4) Pending disposition of the petition, the court may enter an order authorizing temporary care of the child.



Section 64.  Contents of petition for termination of parental rights. (1) The petition for termination of parental rights must state:

(a) the identity of the petitioner;

(b) the date and location of the birth of the child;

(c) the date of the relinquishment by the birth mother or relinquishing parent;

(d) the current location of the child;

(e) the names and locations, if known, of any putative or presumed father of the child;

(f) efforts and inquiries made to locate any parent whose identity is known but whose whereabouts are unknown;

(g) the grounds on which the parental rights of any parent to the child should be terminated;

(h) whether a putative or presumed father is one from whom consent is not required;

(i) whether court orders from any other proceeding have been issued terminating parental rights to the child who is the subject of the petition;

(j) any other evidence supporting termination of the legal rights that a person has with regard to the child; and

(k) a request for custody of the child prior to the adoption.

(2) The petitioner shall file with the petition for termination of parental rights the following documents received in support of the petition:

(a) any relinquishments and consents to adoption;

(b) any denials of paternity;

(c) any acknowledgments of paternity and denial of parental rights;

(d) any response from the department to a request of whether any notice of intent to claim paternity has been filed;

(e) a counseling report required under [section 48];

(f) proof of prior service of any notice or acknowledgement of service or waiver of service received; and

(g) proof of compliance with the Indian Child Welfare Act of 1978 and Interstate Compact on the Placement of Children, if applicable.



Section 65.  Contents of petition for termination of parental rights. (1) The petition for termination of parental rights must state:

(a) the identity of the petitioner;

(b) the date and location of the birth of the child;

(c) the date of the relinquishment by the birth mother or relinquishing parent;

(d) the current location of the child;

(e) the names and locations, if known, of any putative or presumed father of the child;

(f) whether a parent is one from whom consent is not required;

(g) whether court orders from any other proceeding have been issued terminating parental rights to the child that is the subject of the petition;

(h) any other evidence supporting termination of the legal rights that a person has with regard to the child; and

(i) a request for temporary custody of the child prior to the adoption.

(2) The petitioner shall file with the petition for termination of parental rights the following documents received in support of the petition:

(a) any relinquishments and consents to adoption;

(b) any denials of paternity;

(c) any acknowledgments of paternity and denial of parental rights;

(d) any affidavits from the putative father registry that have been executed by the department;

(e) a counseling report required under [section 48];

(f) proof of prior service of any notice or acknowledgement of service or waiver of service received; and

(g) proof of compliance with the Indian Child Welfare Act of 1978 and Interstate Compact on the Placement of Children, if applicable.



Section 66.  Notice of hearing -- service. (1) Notice of a hearing to be held on the petition for termination of parental rights must be served in any manner appropriate under the Montana Rules of Civil Procedure or in any manner that the court may direct on:

(a) a putative or presumed father;

(b) a putative father who was not served with a notice of intent to release at least 20 days before the expected date of birth as specified in the notice of intent to release;

(c) a spouse, if the parent relinquishing the child for adoption was married to that person at the time of conception of the child or at any time after conception but prior to birth;

(d) a parent or legal guardian of the child in question who has not waived notice; or

(e) any other person who is reasonably believed to be the father.

(2) The notice of hearing must inform the putative or presumed father that failure to appear at the hearing constitutes a denial of the individual's interest in custody of the child and will result in the court's termination of the individual's rights to the child.

(3) Proof of service of the notice of hearing must be filed with the court. A notarized acknowledgement of service by the party to be served is proof of personal service. Proof of service is not required if the putative father is present at the hearing. A waiver of notice of the hearing by an individual entitled to receive notice is sufficient.

(4) If a person has not been identified as the father or putative father of the child, the court, on the basis of all information available, shall determine whether publication of notice of the proceeding is likely to lead to identification. If so, the court shall order publication in the manner that it considers appropriate. The name of the birth mother may be included in the publication only with the mother's written consent.

(5) If the court finds that the father of the child is a person who did not receive either a timely notice of intent to release pursuant to [section 22] or a notice required pursuant to this section and who has not waived the right to notice of hearing and that person is not present at the hearing, the court shall adjourn further proceedings until that person is served with a notice of hearing.



Section 67.  Notice of hearing -- service. (1) Notice of a hearing to be held on the petition for termination of parental rights must be served in any manner appropriate under the Montana Rules of Civil Procedure or in any manner that the court may direct on:

(a) a putative or presumed father who has timely and properly complied with the putative father registry;

(b) a putative father who was not served with a notice of intent to release at least 20 days before the expected date of birth as specified in the notice of intent to release;

(c) a person adjudicated, in Montana, to be the father of the child for the purpose of child support;

(d) a person who is recorded on the child's birth certificate as the child's father;

(e) a person who is openly living with the child and the child's mother at the time that the proceeding is initiated or at the time the child was placed in the care of an authorized agency and who is representing to the public that the person is the child's father;

(f) a spouse, if the parent relinquishing the child for adoption was married to that person at the time of conception of the child or at any time after conception but prior to birth; or

(g) a parent or legal guardian of the child in question who has not waived notice.

(2) The notice of hearing must inform the putative or presumed father or other parent that failure to appear at the hearing constitutes a waiver of the individual's interest in custody of the child and will result in the court's termination of the individual's rights to the child.

(3) Proof of service of the notice of hearing must be filed with the court. A notarized acknowledgement of service by the party to be served is proof of personal service. Proof of service is not required if the putative father is present at the hearing. A waiver of notice of the hearing by an individual entitled to receive notice is sufficient.

(4) If the court finds that the father of the child is a person who did not receive either a timely notice of intent to release pursuant to [section 22] or a notice required pursuant to this section and who has not waived the right to notice of hearing and that person is not present at the hearing, the court shall adjourn further proceedings until that person is served with a notice of hearing.



Section 68.  Hearing on petition to terminate parental rights. (1) The court shall hold a hearing as soon as practical to determine the identity of and terminate the parental rights of the parents of the child.

(2) If a putative father has not been named and no one has registered with the putative father registry, the court shall cause inquiry to be made in an effort to identify any legal father. The inquiry must include whether the mother was married at the time of conception of the child or at any time after conception and prior to birth.

(3) Based on the evidence received and the court's inquiry, the court shall enter a finding identifying the father or declaring that the identity of the father could not be determined.

(4) Based on the grounds set forth in [section 70] and the evidence received at the hearing, the court shall enter an order concerning the parental rights to the child.

(5) If the court terminates the parental rights to the child and the department, agency, or prospective adoptive parent has agreed to accept custody of the child until the child is adopted, the court shall issue an order awarding custody of the child to the petitioner.



Section 69.  Hearing on petition to terminate parental rights. (1) The court shall hold a hearing as soon as practical to determine the identity of and terminate the parental rights of the parent of the child.

(2) If a putative father has not been named and no one has filed notice of intent to claim paternity, the court shall cause inquiry to be made in an effort to identify the father. The inquiry must include:

(a) whether the mother:

(i) was married at the time of conception of the child or at any time after conception and prior to birth;

(ii) was cohabiting with an individual of the opposite sex at the time of conception or birth of the child; and

(iii) has received support payments or promises of support payments for the child or in connection with the pregnancy; and

(b) whether any person formally or informally acknowledged possible paternity to the child.

(3) Proof of service of notice or proof of acknowledgement of service on any person or proof of waiver by a person legally required to be given notice must be filed with the court.

(4) Based on the evidence received and the court's inquiry, the court shall enter a finding identifying the father or declaring that the identity of the father could not be determined.

(5) Based on the grounds set forth in [section 70] and the evidence received at the hearing, the court shall enter an order concerning the parental rights to the child.

(6) If the court terminates the parental rights to the child and the department, agency, or prospective adoptive parent has agreed to accept custody of the child until the child is adopted, the court shall issue an order awarding custody of the child to the petitioner.



Section 70.  Grounds for termination of parental rights. The court may terminate a parent's rights to a child who is the subject of an adoption proceeding based upon:

(1) the voluntary acts of the parent in:

(a) executing a voluntary relinquishment and consent to adopt;

(b) submitting a notarized denial of paternity executed pursuant to [section 55]; or

(c) submitting a notarized acknowledgment of paternity and denial of interest in custody of the child executed pursuant to [section 56];

(2) a determination under [section 71] that the parent is unfit;

(3) a determination under [section 72] that the relationship of parent and child does not exist; or

(4) a determination that the parent has irrevocably waived parental rights by failing to timely act to protect the rights.



Section 71.  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 in the state of Montana or in any other jurisdiction of the United States willfully abandoned the child, as defined in 41-3-102(7)(e), 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.



Section 72.  Determination that no parent and child relationship exists. For purposes of making a child available for adoption, the court may terminate the parental rights of a putative father on the grounds that the parent and child relationship does not exist if:

(1) a judicial determination is made under 40-6-107 that the parent and child relationship does not exist. This includes the termination of the parental rights of the husband of the mother who is placing the child for adoption or the parental rights of an individual who is a presumed father of the child.

(2) a determination is made that:

(a) an individual has not timely registered with the putative father registry;

(b) a person has not been adjudicated, in Montana, to be the father of the child for the purpose of child support;

(c) a person has not been recorded on the child's birth certificate as the child's father;

(d) a person is not openly living with the child and the child's mother at the time that the proceeding is initiated or at the time the child was placed in the care of an authorized agency and a person is not representing to the public that the person is the child's father; or

(e) the child's mother was not married at the probable time of the child's conception or at the time the child was born; or

(3) a putative father who appears at the hearing but is unable to establish by a preponderance of the evidence the minimum requirements provided in [section 73] for demonstrating the establishment of a substantial relationship with the child.



Section 73.  Putative father -- termination based upon failure to establish substantial relationship. (1) The parental rights of a putative father may be terminated by the court if the putative father has failed to timely establish and maintain a substantial relationship with the child.

(2) A putative father who is not married to the child's mother but who has openly lived with the child since the child's birth or for a period of 6 months immediately preceding placement of the child with adoptive parents and has openly claimed to be the father of the child during that period is considered to have developed a substantial relationship with the child and to have otherwise met the requirements of this section.

(3) In order to meet the minimal showing of having established a substantial relationship with regard to a child who is the subject of an adoption proceeding, a putative father has the burden of showing that the putative father has:

(a) demonstrated a full commitment to the responsibilities of parenthood by providing financial support for the child in a fair and reasonable sum and in accordance with the putative father's ability and either:

(i) visiting the child at least monthly when physically and financially able to do so; or

(ii) having regular contact with the child or with the person or agency having the care and custody of the child when physically and financially able to do so; and

(b) manifested an ability and willingness to assume legal and physical custody of the child if the child was not in the physical custody of the other parent.

(4) In order to meet the minimal showing of having established a substantial relationship with regard to a child who is the subject of an adoption proceeding involving a child who is under 6 months of age at the time the child becomes the subject of adoption proceedings, a putative father has the burden to show that:

(a) the putative father has manifested a full commitment to parental responsibilities by performing all of the acts described in this subsection (4) prior to the time the mother executed a relinquishment and consent for adoption, including registering with the putative father registry; and

(b) if the putative father had actual knowledge of the pregnancy, paying a fair and reasonable amount of the expenses incurred in connection with the pregnancy and the child's birth in accordance with the putative father's means when not prevented from doing so by the person or authorized agency having lawful custody of the child;

(c) making reasonable and consistent payments, in accordance with the putative father's means, for the support of the child since birth;

(d) visiting regularly with the child; and

(e) manifesting an ability and willingness to assume legal and physical custody of the child if, during this time, the child was not in the physical custody of the mother.

(5) The subjective intent of a putative father, whether expressed or otherwise, unsupported by evidence of acts specified in this section does not preclude a determination that the father failed to meet the requirements of this section.



Section 74.  Irrevocable waiver of parental rights. (1) The court may find an irrevocable waiver of parental rights of:

(a) a putative father who was timely served with notice of intent to release if the court is provided with proof of service and proof that the putative father failed to timely file a notice of intent to claim paternity;

(b) a parent or putative father who is served with notice of proceedings and fails to appear at the hearing; or

(c) a parent or putative father who is served with notice of proceedings and appears and denies any interest in custody of the child.

(2) The court may terminate parental rights under this section upon a finding of irrevocable waiver of all rights to the child.



Section 75.  Irrevocable waiver of parental rights. (1) The court may find an irrevocable waiver of parental rights of:

(a) a putative father who was timely served with notice of intent to release if the court is provided with proof of service and proof that the putative father failed to timely comply with the requirements of the putative father registry;

(b) a parent or putative father who is served with notice of proceedings and fails to appear at the hearing; or

(c) a parent or putative father who is served with notice of proceedings and appears and denies any interest in custody of the child.

(2) The court may terminate parental rights under this section upon a finding of irrevocable waiver of all rights to the child.



Section 76.  Appearance of parent at hearing -- determination of custody. (1) If a parent appears at the hearing on the petition to terminate parental rights, objects to the termination of rights, and requests custody of the child, the court shall set deadlines that allow the parties to complete discovery and shall set a hearing on the determination of the parent's rights to the child.

(2) At the hearing, the court shall consider whether there is a basis for terminating parental rights and whether the best interests of the child will be served by granting custody to the respondent parent, the department, a licensed child-placing agency, or a prospective adoptive parent in a direct parental placement adoption.

(3) If the petitioner has established that there are grounds for terminating parental rights and it is in the best interests of the child for termination to occur, those rights must be terminated.



Section 77.  Effect of order terminating parental rights. (1) An order granting the petition for termination of parental rights:

(a) terminates the parent and child relationship except for an obligation for arrearages of child support;

(b)  terminates the jurisdiction of the court over the child in any dissolution or separate maintenance action;

(c) extinguishes any right the parent had to withhold consent to a proposed adoption of the child or to further notice of a proceeding for adoption; and

(d) awards custody of the child to the department, agency, or prospective adoptive parent to whom the relinquishment was given if the department, agency, or prospective adoptive parent has agreed in writing to accept custody of the child until the adoption is finalized.

(2) A person accepting custody is responsible for the support of the child.



Section 78.  Appeal. An order terminating parental rights is a final order for purposes of appeal.



Section 79.  Expediency. A contested termination of parental rights action must take precedence over other cases and matters in the court or on appeal. The court shall examine any issues raised in challenging termination of a parent's rights or regarding the validity of any interlocutory or final adoption decree and shall render a decision as soon as possible.



Section 80.  Finality. Subject to the disposition of a timely appeal, upon expiration of 6 months after an order terminating parental rights has been issued, the order may not be questioned by any person, in any manner, or upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or the subject matter.



Section 81.  Duty to disclose information -- form -- availability -- filing. (1) Except for an adoption proceeding by a stepparent, in any adoption under [sections 1 through 156], a birth parent, the department, or an agency shall provide a prospective adoptive parent with social and medical histories of the birth families, including tribal affiliation, if applicable.

(2) In a direct parental placement adoption, the birth family social and medical histories must be completed on a form provided by the department and filed with the court when the adoption petition is filed.

(3) The department shall make a form available to agencies and court administrators for public distribution.



Section 82.  Retention of disclosures. (1) In a direct parental placement adoption, the disclosures required by [section 81] must be filed with the court in support of the notice of parental placement filed pursuant to [section 95] and must be permanently maintained.

(2) In an adoption arranged by the department or an agency, the disclosures required by [section 81] must be permanently maintained in the files of the department or the agency.



Section 83.  Preplacement evaluation -- timing. (1) A child may not be placed for purposes of adoption unless the person with whom a child is proposed to be placed has had a preplacement evaluation completed to determine fitness and readiness as an adoptive parent.

(2) In a direct parental placement adoption, the placing parent must be provided with a copy of the preplacement evaluation prior to execution of a relinquishment and consent to adoption of the child.

(3) The required preplacement evaluation must provide all pertinent information pertaining to the topics identified in [section 85].



Section 84.  Initiation of preplacement evaluation -- who conducts evaluation -- payment of fees. (1) A prospective adoptive parent who wishes to adopt a child may initiate the process by:

(a) establishing a client relationship with the department or a licensed child-placing agency; or

(b) requesting a preplacement evaluation from either the department or a licensed child-placing agency.

(2) The department may contract with a licensed social worker or a licensed child-placing agency to conduct the evaluation.

(3)  The prospective adoptive parent and the home of the prospective adoptive parent must be studied and evaluated according to the department's or licensed child-placing agency's standards for placement of a child.

(4) A department or agency from which an individual is seeking to adopt a child may require the individual to be evaluated by its own qualified employee or independent contractor even if the individual has received a favorable preplacement evaluation from another evaluator.

(5) Fees for the study and report are set by the entity completing them and must be paid for by the prospective adoptive parent.



Section 85.  Information to be reviewed in conducting preplacement evaluation. (1) A preplacement evaluation must include a review of the following information about the prospective adoptive parent:

(a) a check of criminal conviction data, data on substantiated abuse or neglect of a child under Title 41, chapter 3, and data pertaining to any involvement in incidents of domestic violence by any person over the age of 13 living in the prospective home;

(b) medical and social history and current health;

(c) assessment of potential parenting skills;

(d) assessment of ability to provide adequate financial support for a child; and

(e) assessment of the level of knowledge and awareness of adoption issues, including when appropriate, matters relating to open, interracial, cross-cultural, and special needs adoptions.

(2) (a) The prospective adoptive parent, the department of justice, and other state, county, and local agencies, after written notice to the subject of the study, shall give the department or agency completing the adoption study substantiated data pertaining to criminal convictions and any reports concerning domestic violence and substantiated abuse or neglect of children or vulnerable adults.

(b) The adoption study must also include a check of the youth court records of each person over the age of 13 living in the prospective home. Pursuant to sections 41-5-603 and 41-5-604, the youth court shall release the requested information to the agency or department completing the adoption study. The study must include an evaluation of the effect of a conviction, adjudication, or finding of substantiated abuse or neglect on the ability to care for a child.

(3) The preplacement evaluation must include at least one in-home visit with the prospective adoptive parent and at least one interview with each family member.



Section 86.  Contents of preplacement evaluation. (1) The preplacement evaluation report must contain the following information if available:

(a) age and date of birth, nationality, racial or ethnic background, and any religious affiliation;

(b) marital status and family history, including the age and location of any child of the individual and the identity of and relationship to anyone else living in the individual's household;

(c) physical and mental health and any history of abuse of alcohol or drugs;

(d) educational and employment history and any special skills;

(e) property and income, including outstanding financial obligations as indicated in a current credit report or financial statement furnished by the individual;

(f) any previous request for an evaluation or involvement in an adoptive placement and the outcome of the evaluation or placement;

(g) whether the individual has been charged with or convicted of domestic violence or has been involved in a substantiated charge of child abuse or neglect or elder abuse or neglect and the disposition of the charges;

(h) whether the individual is subject to a court order restricting the individual's right to custody or visitation with a child;

(i) whether the individual has been convicted of a crime other than a minor traffic violation;

(j) whether the individual has located a parent interested in placing a child with the individual for adoption and, if so, a brief description of the parent and the child; and

(k) any other fact or circumstance that may be relevant in determining whether the individual is suited to be an adoptive parent, including the quality of the environment in the individual's home and the functioning of other children in the individual's household.

(2) The report must contain recommendations regarding the suitability of the subject of the study to be an adoptive parent.

(3) A preplacement evaluation is valid for 1 year following its date of completion and must be updated if there is a significant change in circumstances.

(4) Prior to accepting physical custody of a child for purposes of adoption, a prospective adoptive parent must have the preplacement evaluation completed by the evaluator, and the evaluation must specifically address the appropriateness of placing the specifically identified child or children who will be the subject of the adoption proceedings with the prospective adoptive parent.



Section 87.  Recommendation. (1) An evaluator shall assess the information required by [section 85] to determine if it raises a specific concern that placement of any child or a particular child in the home of the individual would pose a significant risk of harm to the physical or psychological well-being of the child.

(2) If an evaluator determines that the information assessed does not raise a specific concern, the evaluator shall find that the individual is suited to be an adoptive parent. The evaluator may comment about any factor that in the evaluator's opinion makes the individual suited in general or for a particular child.

(3) If an evaluator determines that the information assessed raises a specific concern, the evaluator, on the basis of the original or any further investigation, shall find that the individual is or is not suited to be an adoptive parent. The evaluator shall support the finding with a written explanation.



Section 88.  Distribution of evaluation -- retention -- immunity for evaluator. (1) The evaluator shall furnish a copy of the evaluation to a department, agency, or other person authorized to place a child for adoption and, upon payment by the person evaluated of the cost of the evaluation services, to the person evaluated.

(2) An evaluator shall retain the original of a completed or incomplete preplacement evaluation and a list of each source for each item of information in the evaluation. An evaluator who ceases to do business in Montana shall give the evaluator's records to the department for retention.

(3) An evaluator, except a department evaluator, who conducted an evaluation in good faith is not subject to civil liability for anything contained in the evaluation.



Section 89.  Action by department. If, before a decree of adoption is issued, the department learns from an evaluator or another person that a child has been placed for adoption with an individual who is the subject of a preplacement evaluation on file with the department containing a finding of unsuitability, the department shall immediately review the evaluation and make a determination of whether the department has authority pursuant to Title 41, chapter 3, to intervene.



Section 90.  Court waiver for relatives. The court may waive the requirement of a preplacement evaluation when a parent or guardian places a child for adoption directly with an extended family member of the child. A postplacement evaluation must be conducted during the pendency of a proceeding for adoption.



Section 91.  Filing of evaluation in adoption proceedings. (1) In a direct parental placement adoption, the preplacement evaluation must be filed with the court in support of the petition to terminate parental rights for purposes of adoption.

(2) In an adoption arranged by the department or a licensed child-placing agency, the preplacement evaluation must be permanently maintained in the files of the department or the licensed child-placing agency.



Section 92.  Requirement for preplacement evaluation. (1) Before the department or licensed child-placing agency may place a child for purposes of adoption, the prospective adoptive parent and the home of the prospective adoptive parent must be studied and evaluated as provided in [section 84].

(2) The department or agency shall prepare a written report containing the results of its evaluation.



Section 93.  Parties to direct parental placement adoption. A parent of a child may directly place the child for adoption with a specifically identified prospective adoptive parent who:

(1) resides in Montana or in another state that allows direct parental placement;

(2) is known to and has been personally selected by the parent; and

(3) has previously obtained a favorable preplacement evaluation.



Section 94.  Duties of placing parent. (1) A parent who is directly placing a child for adoption shall execute a voluntary relinquishment and consent to adopt, including:

(a) receiving the counseling required by [section 48]; and

(b) if the parent is a minor, being advised by legal counsel other than the attorney representing the prospective adoptive parent.

(2) A placing parent shall identify and provide information on the location of any other legal parent or guardian of the child and any other person required to receive notice under [section 67], including:

(a) any current spouse;

(b) any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child; and

(c) any adoptive parent.

(3) A placing parent shall identify and provide information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.

(4) A parent placing a child for adoption in a direct parental placement adoption shall provide:

(a) the disclosures of medical and social history required pursuant to [section 81];

(b) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth; and

(c) a certified copy of any existing court orders pertaining to custody or visitation of the child.

(5) A parent placing a child for adoption in a direct parental placement adoption shall file a notice of parental placement.

(6) A parent placing a child for adoption in a direct parental placement adoption shall file a disclosure of all disbursements made to or for the benefit of the parent by the prospective adoptive parent or any person acting on behalf of the prospective adoptive parent.

(7) Subject to the limitations set in [section 148], counseling expenses, legal fees, and the reasonable costs of preparing reports documenting the required disclosures of medical and social history and the disclosures documenting disbursements are allowable expenses that can be paid for by the prospective adoptive parent.



Section 95.  Direct parental placement -- information to be filed. (1) A parent who proposes to place a child for adoption with a prospective adoptive parent who resides in Montana and who is not the child's stepparent or an extended family member shall file with the court of the county in which the prospective adoptive parent or the parent making the placement resides the following:

(a) a notice of parental placement containing the following information:

(i) the name and address of the placing parent;

(ii) the name and address of each prospective adoptive parent;

(iii) the name and address or expected date and place of birth of the child;

(iv) the identity and information on the location of any other legal parent or guardian of the child and any other person required to receive notice under [section 67], including any current spouse, any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child, and any adoptive parent;

(v) all relevant information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.; and

(vi) the name and address of counsel, a guardian ad litem, or other representative, if any, of each of the parties mentioned in subsections (1)(a)(i) through (1)(a)(iii);

(b) a relinquishment and consent to adoption of the child by the adoptive parent;

(c) the counseling report required by [section 48];

(d) the medical and social history disclosures required by [section 81];

(e) a report of disbursements identifying all payments made to or to the benefit of the placing parent by the prospective adoptive parent or anyone acting on the parent's behalf that contains a statement by each person furnishing information in the report attesting to the truthfulness of the information furnished by that person;

(f) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth;

(g) a certified copy of any existing court orders pertaining to custody or visitation of the child; and

(h) the preplacement evaluation.

(2) The notice of parental placement must be signed by the parent making the placement.



Section 96.  Duty of prospective adoptive parent to provide preplacement evaluation. (1) Prior to taking custody of a child whom the prospective adoptive parent intends to adopt, the prospective adoptive parent shall obtain a favorable preplacement evaluation.

(2) A placing parent must be provided with a copy of the preplacement evaluation prior to execution of a relinquishment and consent to adoption of the child.



Section 97.  Duty to promptly petition. (1) Within 30 days after the filing of a notice of parental placement or the execution of a relinquishment and consent to the adoption of the child, whichever is later, a prospective adoptive parent shall promptly act to resolve the child's legal status by filing:

(a) a petition for termination of parental rights for purposes of adoption, including a request for custody, that includes:

(i) the relinquishment and consent to adopt executed by any legal parent other than the placing parent who has filed the notice of parental placement;

(ii) a certified copy of any court order terminating the rights and duties of any parent or guardian of the child; and

(iii) any other evidence supporting termination of the legal rights a person has with regard to the child;

(b) a petition to adopt the child who is the subject of the proceedings;

(c) a copy of the preplacement evaluation pertaining to the adoptive parent;

(d) a copy of an agreement with the department or a licensed child-placing agency agreeing to accept supervision over the postplacement evaluation period and to prepare the postplacement evaluation;

(e) a disclosure of all disbursements made with regard to the adoptive placement to date; and

(f) an affidavit from the department reporting on whether any individual has registered with the putative father registry and claims an interest in the child.

(2) The prospective adoptive parent shall request that the court promptly notice the matters provided for in subsection (1) for hearing in a timely manner.



Section 98.  Custody order. (1) The court shall consider the petition to adopt and shall make a determination as to whether temporary custody should be awarded to the petitioner. In making that determination, the court shall consider:

(a) the preplacement evaluation that pertains specifically to placement of the child who is the subject of the adoption petition with the petitioner; and

(b) if any significant change in the petitioner's or child's circumstances has occurred since preparation of the preplacement evaluation.

(2) Upon a determination that it is in the best interests of the child, the court shall enter an order granting temporary custody to the prospective adoptive parent.

(3) Upon a determination that it is not in the best interests of the child to place custody with the prospective adoptive parent, the court shall deny the petition to terminate parental rights of the placing parent and shall make any other order with regard to the custody of the child that is necessary to protect the well-being of the child.



Section 99.  Period for postplacement supervision. (1) In a direct parental placement adoption, the court shall maintain jurisdiction over the placement during a postplacement evaluation period and issue an order for postplacement supervision and a postplacement evaluation.

(2) The postplacement evaluation period must be supervised and evaluated by a qualified person appointed, contracted with, or employed by:

(a) the department, if the department has accepted supervision of the placement; or

(b) a licensed child-placing agency.

(3) The court shall provide the evaluator with copies of the petition for adoption and the items filed with the petition.

(4) A decree of adoption may not be entered for at least 6 months from the date an order is entered granting temporary custody during the pendency of the proceedings.



Section 100.  Postplacement evaluation for direct parental placement adoption. (1) An evaluation must be based on a personal interview with the prospective adoptive parent in the prospective parent's home and an observation of the relationship between the child and the prospective adoptive parent.

(2) An evaluation must be in writing.

(3) At a minimum, the evaluation must include the following information:

(a) assessment of adaptation by the prospective adoptive parent to parenting the child;

(b) assessment of the health and well-being of the child in the prospective adoptive home;

(c) analysis of the level of incorporation by the child into the prospective adoptive parent's home, extended family, and community;

(d) assessment of the level of incorporation of the child's previous history into the prospective adoptive home, such as cultural or ethnic practices, or contact with former foster parents or biological relatives; and

(e) an account of any change in the prospective adoptive parent's marital status or family history, physical or mental health, home environment, property, income, or financial obligations since the filing of the preplacement evaluation.

(4)  The evaluation must contain a definite recommendation stating the reasons for or against the proposed adoption.



Section 101.  Time and filing of evaluation. (1) Unless the court for good cause allows an earlier or later filing, the evaluator shall file a complete written evaluation with the court within not less than 90 days and not more than 180 days after receipt of the court's order for an evaluation.

(2) If an evaluation raises a specific concern, as described in [section 87], the evaluation must be filed immediately and must explain why the concern poses a significant risk of harm to the physical or psychological well-being of the child.

(3) An evaluator shall give the prospective adoptive parent a copy of the evaluation when it is filed with the court and shall permanently retain a copy of the evaluation and a list of every source for each item of information in the evaluation. If the evaluator ceases to conduct business in Montana, all evaluations in the evaluator's possession must be forwarded to the department for permanent retention.



Section 102.  Motion to enter adoption decree. (1) The prospective adoptive parent may file a motion for entry of an adoption decree no sooner than 6 months after the court has granted temporary custody to the prospective adoptive parent.

(2) The motion must be supported by the following documents:

(a) the postplacement evaluation prepared pursuant to [section 100]; and

(b) an updated list of all disbursements made in connection with the adoption proceeding.

(3) A notice of hearing is not required for any party whose parental rights have been terminated in prior proceedings.

(4) The court shall consider the petition and shall grant or deny the petition pursuant to the provisions of [sections 125 through 134].

(5) If the petition to adopt is denied, the court shall provide notice to the placing parent that the petition has been denied and shall take appropriate action for placement of the child pursuant to [section 131].

(6) Finality of the decree or the order denying the decree and the time for appeal are determined pursuant to [section 137].



Section 103.  Records. All records filed with the court in a direct parental placement adoption must be permanently maintained by the court.



Section 104.  Factors to be considered -- best interests of child. (1)  All relevant factors must be considered in determining the best interests of the child in an adoption proceeding. Factors relevant to the determination of a prospective adoptive parent's parenting ability, the future security for a child, and familial stability must be considered. In determining the best interests of the child, the following factors with regard to a prospective adoptive parent may be considered:

(a)  age, as it relates to health, earning capacity, provisions for the support of a child, or other relevant circumstances;

(b)  marital status, as it relates to the ability to serve as a parent in particularized circumstances; and

(c)  religion, as it relates to the ability to provide the child with an opportunity for religious or spiritual and ethical development and as it relates to the express preference of a birth parent or a child to be placed with an adoptive parent of a particular religious faith or denomination.

(2)  For purposes of ensuring that the best interests of the child are met, the department or a licensed child-placing agency is authorized to gather and use, in an appropriate, nonarbitrary manner, information concerning the age, marital status, and religious beliefs of a prospective adoptive parent. The authority granted by this subsection includes the authority to receive and to consider, consistent with the best interests of the child, the preferences of birth parents relating to the age, marital status, or religious beliefs of an adoptive parent.

(3) Consideration of religious factors by a licensed child-placing agency that is affiliated with a particular religious faith is not arbitrary consideration of religion within the meaning of this section.



Section 105.  Parties to department or agency placement. A parent of a child may relinquish the child for adoption to the department or a licensed child-placing agency. The department or agency shall agree in writing to accept the relinquishment of a placing parent as provided in [section 43] before the relinquishment is valid.



Section 106.  Duties of placing parent. (1) A parent who is placing a child for adoption shall comply with the provisions for executing a voluntary relinquishment and consent to adopt.

(2) A parent placing a child for adoption shall identify and provide information on the location of:

(a) any other legal parent or guardian of the child and any other person required to receive notice under [section 67], including any current spouse; and

(b) any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child.

(3) A parent placing a child for adoption shall identify and provide information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.

(4) A parent placing a child for adoption shall provide:

(a) the disclosures of medical and social history;

(b) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth; and

(c) a certified copy of any existing court orders pertaining to custody or visitation of the child.



Section 107.  Counseling requirements. To the extent required by [sections 1 through 156] and the department's or agency's standards, the department or agency shall provide counseling to the parties involved in the adoption.



Section 108.  Waiting period following placement of child. (1) Once the department or agency has received custody of the child and placed the child for adoption, the department or agency shall supervise and evaluate the placement during a 6-month postplacement evaluation period.

(2) The department or agency may recommend in the postplacement evaluation filed with the petition for adoption that the court issue a decree of adoption sooner than the 6-month postplacement evaluation period if:

(a) (i) a period of at least 6 months has elapsed since the department or agency placed the child in the prospective adoptive home; and

(ii) the department or agency has completed a postplacement evaluation during that period; or

(b) (i) a postplacement evaluation has been completed and filed with the court; and

(ii) there are detailed extenuating circumstances supporting a waiver of the 6-month postplacement evaluation period.

(3) The department or an agency may recommend the waiver of the 6-month postplacement evaluation period and the postplacement evaluation if the adoptee has been in the petitioner's home as a foster child for at least 1 year.



Section 109.  Petition for adoption filed by prospective adoptive parent. After the child has been placed by the department or agency with the prospective adoptive parent, the parent shall file a petition for adoption.



Section 110.  Postplacement department or agency evaluation. (1) The department or agency shall complete a written postplacement evaluation. The postplacement evaluation must be conducted according to the department's or agency's standards for placement of a child and at a minimum must include a personal interview with the prospective adoptive parent in that person's home and observation of the relationship between the child and the prospective adoptive parent.

(2) Upon the filing of a petition for adoption by the prospective adoptive parent, the department or agency shall file the postplacement evaluation.

(3) The evaluation must include the following information:

(a) whether the child is legally free for adoption;

(b) whether the proposed home is suitable for the child;

(c) a statement that the medical and social histories of the birth parents and child have been provided to the prospective adoptive parent;

(d) an assessment of adaptation by the prospective adoptive parent to parenting the child;

(e) a statement that the 6-month postplacement evaluation period has been complied with or should be waived;

(f) any other circumstances and conditions that may have a bearing on the adoption and of which the court should have knowledge;

(g) whether the agency waives notice of the proceeding;

(h) a statement that any applicable provision of law governing an interstate or intercountry placement of the child has been complied with; and

(i) a statement of compliance with any applicable provisions of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.

(4)  The evaluation must contain a definite recommendation stating the reasons for or against the proposed adoption.



Section 111.  Consent to adoption. (1) Upon the filing of the petition for adoption by the prospective adoptive parent, the department or agency that has custody of the child shall file its consent to adoption.

(2) Except as provided in subsection (3), the withdrawal of a consent for an adoption filed by the department or an agency in connection with that petition for adoption is not permitted.

(3) Upon a motion to withdraw consent, notice and opportunity to be heard must be given to the petitioner and to the person seeking to withdraw consent. The court may, if it finds that the best interests of the child will be furthered, issue a written order permitting the withdrawal of the consent.

(4) The entry of a decree of adoption renders a consent irrevocable.



Section 112.  Relinquishment to stepparent. (1) A parent may relinquish parental rights for the purposes of adoption of a child by the child's stepparent or a member of the child's extended family. The relinquishment must be executed in accordance with [sections 42 through 52]. The relinquishment may be executed at any time after the child is 72 hours old.

(2) The stepparent or extended family member shall accept the relinquishment in writing.



Section 113.  Standing to adopt stepchild. (1) A stepparent has standing to file a petition for adoption of a minor stepchild of the stepparent's spouse if:

(a) the spouse has sole legal and physical custody of the child and the child has been in the physical custody of the spouse and the stepparent during the 60 days preceding the filing of a petition for adoption;

(b) the spouse is deceased or mentally incompetent but, before dying or being judicially declared mentally incompetent, had legal and physical custody of the child, and the child has resided primarily with the stepparent during the 12 months preceding the filing of the petition; or

(c) the department or an agency placed the child with the stepparent.

(2) For good cause shown, a court may allow an individual who is not the stepparent but who has the consent of the custodial parent of a child to file a petition for adoption. The petition must be treated as if the petitioner were a stepparent.

(3) A petition for adoption by a stepparent may be joined with a petition for termination of parental rights.



Section 114.  Consent to adoption. (1) Upon the filing of the petition for adoption by the stepparent, the child's parent shall file consent to adoption executed pursuant to [section 115 or 116].

(2) If the child has attained 12 years of age the child must consent to the adoption.



Section 115.  Consent to adoption -- stepparent's spouse. (1) A consent to adoption executed by a parent who is the stepparent's spouse must be signed in the presence of an individual authorized to take acknowledgements.

(2) A consent must be in writing and must state that:

(a) the parent executing the consent has legal and physical custody of the parent's child and voluntarily and unequivocally consents to the adoption of the child by the stepparent;

(b) the adoption will not terminate the parental relationship between the parent executing the consent and the child; and

(c) the parent executing the consent understands and agrees that:

(i) the adoption will terminate the relationship of parent and child between the child's other parent and the child and will terminate any existing court order for custody, visitation, or communication with the child;

(ii) the child and any descendant of the child will retain rights of inheritance from or through the child's other parent; and

(iii) a court order for visitation or communication with the child by an individual related to the child through the parent executing the consent or an agreement or order concerning another individual that is approved by the court survives the decree of adoption, but that failure to comply with the terms of the order or agreement is not a ground for revoking or setting aside the consent or the adoption.



Section 116.  Consent to adoption -- child's other parent. A consent executed by a child's parent who is not the stepparent's spouse must be in writing and must state that:

(1) the parent executing the consent voluntarily and unequivocally consents to the adoption of the child by the stepparent and the transfer to the stepparent's spouse and the adoptive stepparent of any right that the parent executing the consent has to legal or physical custody of the child;

(2) the parent executing the consent understands and agrees that:

(a) the adoption will terminate the parent's parental relationship with the child and will terminate any existing court order for custody, visitation, or communication with the child;

(b) the child and any descendant of the child will retain rights of inheritance from or through the parent executing the consent; and

(c) a court order for visitation or communication with the child by an individual related to the child through the child's other parent or an agreement or order concerning another individual that is approved by the court survives the decree of adoption, but that failure to comply with the terms of the order or agreement is not a ground for revoking or setting aside the consent or the adoption.



Section 117.  Postplacement evaluation period -- waiver. If the child is a stepchild or a member of the extended family of the petitioner, the court may, if satisfied that the adoption is in the best interests of the child, waive the 6-month postplacement evaluation period and the postplacement evaluation and grant a decree of adoption.



Section 118.  Petition for adoption -- notice -- hearing. A stepparent who desires to adopt a stepchild must file a petition for adoption, any necessary consents, any required postplacement evaluation, give notice of the hearing on the petition, and attend a hearing conducted by the court.



Section 119.  Legal consequences of adoption of stepchild. (1) Except as provided in subsections (2) and (3), the legal consequences of an adoption of a stepchild by a stepparent are the same as the consequences under [section 136].

(2) An adoption by a stepparent does not affect:

(a) the relationship between the adoptee and the adoptee's parent who is the adoptive stepparent's spouse or deceased spouse;

(b) an existing court order for visitation or communication with a child by an individual related to the adoptee through either parent; or

(c) the right of the adoptee or a descendant of the adoptee to inheritance or intestate succession through or from the adoptee's former parent.

(3) Failure to comply with an agreement or order is not a ground for challenging the validity of an adoption by a stepparent.



Section 120.  Arrearages of child support. A termination of a parent's rights and responsibilities toward a child does not cancel any responsibility to pay arrearages of child support unless the party to whom the arrearages are owed agrees in writing to waive payment.



Section 121.  Adoption of adult. A person who has attained the age of legal majority may be adopted without the consent of the person's parents.



Section 122.  Who may adopt adult or emancipated minor. (1) An adult may adopt another adult or an emancipated minor pursuant to this section. However, an adult may not adopt the adult's spouse. An adoption of an incompetent individual of any age must comply with all requirements set by law for the adoption of a child.

(2) An individual who has adopted an adult or emancipated minor may not adopt another adult or emancipated minor within 1 year after the adoption unless the prospective adoptee is a sibling of the adoptee.



Section 123.  Consent to adoption. (1) Consent to the adoption of an adult or emancipated minor is required only of:

(a) the adoptee;

(b) the prospective adoptive parent; and

(c) the spouse of the prospective adoptive parent unless:

(i) the spouse and the prospective adoptive parent are legally separated; or

(ii) the court finds that the spouse is not capable of giving consent or is withholding consent contrary to the best interests of the adoptee and the prospective adoptive parent.

(2) The consent of the adoptee and the prospective adoptive parent must:

(a) be in writing and be signed in the presence of the court or an individual authorized to take acknowledgments;

(b) state that the parties agree to assume toward each other the legal relationship of parent and child and to have all of the rights and be subject to all of the duties of that relationship; and

(c) state that the parties understand the consequences that the adoption may have for any right of inheritance, property, or support.

(3) The consent of the spouse of the prospective adoptive parent:

(a) must be in writing and be signed in the presence of the court or an individual authorized to take acknowledgments;

(b) must state that the spouse:

(i) consents to the proposed adoption; and

(ii) understands the consequences that the adoption may have for any right of inheritance, property, or support that the spouse has; and

(c) may contain a waiver of notice of any proceeding for adoption.



Section 124.  Jurisdiction and venue. (1) The court has jurisdiction over a proceeding for the adoption of an adult or emancipated minor if the petitioner has lived in Montana for at least 90 days immediately preceding the filing of a petition for adoption.

(2) A petition for adoption must be filed in the court in the county in which a petitioner lives.



Section 125.  Procedure. Except as otherwise provided in [sections 121 through 125], the procedure and law for adoption of a child set forth in [sections 1 through 156] is applicable in proceedings for the adoption of an adult. The provisions concerning the counseling requirement, preplacement evaluation, postplacement supervision period, and postplacement evaluation are not applicable to the adoption of an adult.



Section 126.  Petition for adoption. (1) A petition for adoption must be filed in triplicate, must be notarized by the petitioners, and must specify:

(a) the full names, ages, and place and duration of residence of the petitioners;

(b) the current marital status of petitioners and, if married, the place and date of the marriage;

(c) the circumstances under which the petitioners obtained physical custody of the child and the name of the individual or agency who placed the child;

(d) the date and place of birth of the child, if known;

(e) the name used for the child in the proceeding and, if a change in name is desired, the full name by which the child is to be known;

(f) that it is the desire of the petitioners that the relationship of parent and child be established between the petitioners and the child and to have all the rights and be subject to all the duties of that relationship;

(g) a full description and statement of value of all property owned or possessed by the child;

(h) the facts, if any, that excuse consent on the part of a person whose consent is required for the adoption;

(i) that any applicable law governing interstate or intercountry placement was complied with;

(j) that, if applicable, the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., was complied with;

(k) whether a previous petition has been filed by petitioner to adopt the child at issue or any other child in any court and the disposition of the petitions; and

(l) the name and address, if known, of any person who is entitled to receive notice of the petition for adoption.

(2) There must be attached to or accompanying the petition:

(a) any written consent required by [sections 125 through 134];

(b) a certified copy of any court order terminating the rights of the child's parents;

(c) a certified copy of any existing court order in any pending proceeding concerning custody of or visitation with the child;

(d) a copy of any agreement with a public agency to provide a subsidy for the benefit of the child with a special need;

(e) the postplacement evaluation prepared pursuant to [section 100 or 110];

(f) a disclosure of any disbursements made in connection with the adoption proceeding.

(3) One copy of the petition must be retained by the court. A copy must be sent to:

(a) the department or to the agency participating in the adoption proceeding; or

(b) the parent placing the child for adoption in a direct parental placement adoption.



Section 127.  Time for action on petition for adoption -- waiver. Not less than 6 months from the date the child has been placed with the prospective adoptive parent, the prospective adoptive parent may apply to the court for a decree of adoption. If the best interests of the adoptee are served, then pursuant to [sections 108 and 117], the court may waive the 6-month postplacement evaluation period and summarily consider an adoption petition.



Section 128.  Notice of hearing. (1) Upon the filing of a petition for adoption, notice of hearing must be served on:

(a) a person whose consent to adoption is required under [section 39];

(b) the department or agency whose consent to adoption is required;

(c) the spouse of the petitioner if the spouse has not joined in the petition;

(d) a person who has revoked a consent or relinquishment or is attempting to have a consent or relinquishment set aside; and

(e) any other person named by the court to receive notice.

(2) The notice must direct the person to appear in court at the time specified and to show cause why the petition should not be granted.

(3) The notice of hearing must be served in a manner appropriate under the Montana Rules of Civil Procedure.

(4) A notice of hearing is not required to be served on any party:

(a) whose parental rights have been terminated in prior proceedings;

(b) who waives notice in a relinquishment, consent, or other document signed by the party;

(c) who has consented in writing to an adoption; or

(d) whose consent to adoption is not required under [section 40].



Section 129.  Content of notice. The notice required by [section 128] must contain:

(1) the caption of the petition;

(2) the address and telephone number of the court in which the petition is pending;

(3) a concise summary of the relief requested in the petition;

(4) the name, mailing address, and telephone number of the petitioner or the petitioner's attorney; and

(5) a statement of the method of responding to the notice and the consequences of failure to respond.



Section 130.  Hearing on petition for adoption. (1) The petitioners and the child shall appear at the hearing unless the presence of the child is waived by the court.

(2) The court shall examine the petition, the documents accompanying the petition, and the petitioners and shall receive evidence in support of the petition.



Section 131.  Granting petition for adoption -- denial of petition. (1) The court shall issue a decree of adoption awarding custody of the child to the petitioners based on the evidence received if it determines that:

(a) the child has been in the physical custody of the petitioners for at least 6 months, unless the court for good cause shown waives this requirement pursuant to [section 108 or 117];

(b) notice of hearing on the petition for adoption was properly served or dispensed with;

(c) every necessary consent, relinquishment, waiver, disclaimer, or judicial order terminating parental rights has been obtained and filed with the court;

(d) any evaluation required by [sections 1 through 156] has been filed with and considered by the court; and

(e) the adoption is in the best interests of the child.

(2) If the petition for adoption is denied, the court shall dismiss the petition and enter an appropriate order as to the future custody of the child according to the best interests of the child.



Section 132.  Best interests of child. (1)  In determining whether to grant a petition to adopt, the court shall consider all relevant factors in determining the best interests of the child. The court shall consider factors relevant to the determination of a prospective adoptive parent's parenting ability, the future security for a child, and familial stability.

(2) In a contested adoption proceeding involving a child, the court shall consider the factors set out in subsection (1) and shall also consider:

(a) the nature and length of any relationship already established between a child and any person seeking to adopt the child;

(b) the nature of any family relationship between the child and any person seeking to adopt the child and whether that person has established a positive emotional relationship with the child;

(c) the harm that could result to the child from a change in placement;

(d) whether any person seeking to adopt the child has adopted a sibling or half-sibling of the child;

(e) which, if any, of the persons seeking to adopt the child were selected by the placing parent or the department or agency whose consent to the adoption is required.

(3) In an Indian child placement, the court shall determine if the requirements of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., have been met.



Section 133.  Removal of child from state. Before a decree of adoption is issued, a petitioner may not remove the child from the state for more than 30 consecutive days without the permission of:

(1) the court if the child was placed directly for adoption; or

(2) the department or the agency that placed the child for adoption.



Section 134.  Decree of adoption. A decree of adoption must state:

(1) the original name of the child;

(2) the name of the petitioner for adoption;

(3) whether the petitioner is married or unmarried;

(4) whether the petitioner is a stepparent of the child;

(5) the name by which the child is to be known;

(6) for a child born in Montana, a direction to the vital statistics bureau to issue a new birth certificate unless the adoptee is 12 years of age or older and requests that a new certificate not be issued;

(7) the child's date and place of birth, if known;

(8) the effect of the decree of adoption as stated in [section 136];

(9) that the adoption is in the best interests of the child; and

(10) whether the birth mother objects to the release of the original birth certificate information upon the adoptee reaching 18 years of age.



Section 135.  Communication of decree to department. (1) Within 30 days after a decree of adoption becomes final, the clerk of court shall send a report of the adoption to the department.

(2) If petitioners have requested it, the court shall order the vital statistics bureau to issue a new birth certificate to the child.



Section 136.  Effect of decree. (1) After the decree of adoption is entered:

(a) the relationship of parent and child and all the rights, duties, and other legal consequences of the relation of parent and child exist between the adoptee and the adoptive parent and the kindred of the adoptive parent;

(b) the former parents and the kindred of the former parents of the adoptee, unless they are the adoptive parents or the spouse of an adoptive parent, are relieved of all parental responsibilities for the adoptee and have no rights over the adoptee except for a former parent's duty to pay arrearages for child support.

(2) A decree of adoption should include a notice to the vital statistics bureau as to the birth mother's consent to release of the information on the original birth certificate upon the adoptee reaching 18 years of age.

(3) The relationship of parent and child for the purposes of intestate succession is governed by Title 72.



Section 137.  Finality of decree -- expediency. (1) For purposes of appeal, the decree of adoption is a final order when it is issued.

(2) A person may appeal from the order in the manner and form provided for appeals from a judgment in civil actions.

(3) An appeal from a decree of adoption must be heard expeditiously pursuant to the provisions of [section 78].



Section 138.  Rights of adoptee. A decree of adoption does not affect any right or benefit vested in the adoptee before the decree became final.



Section 139.  Foreign adoption decrees. When the relationship of parent and child has been created by a decree of adoption of a court of any other state or country, the rights and obligations of the parties as to matters within the jurisdiction of this state must be determined pursuant to [sections 1 through 156].



Section 140.  Visitation and communication agreements. (1) Except as otherwise provided in [sections 1 through 156], a decree of adoption terminates any existing order or written or oral agreement for contact or communication between the adoptee and the birth parents or family.

(2) Any express written agreement entered into between the placing parent and the prospective adoptive parent after the execution of a relinquishment and consent to adoption is independent of the adoption proceedings, and any relinquishment and consent to adopt remains valid whether or not the agreement for contact or communication is later performed. Failure to perform an agreement is not grounds for setting aside an adoption decree.

(3) A court may order that an agreement for contact or communication entered into under this section may not be enforced upon a finding that:

(a) enforcement is detrimental to the child;

(b) enforcement undermines the adoptive parent's parental authority; or

(c) due to a change in circumstances, compliance with the agreement would be unduly burdensome to one or more of the parties.



Section 141.  Confidentiality of records and proceedings. (1) Unless the court orders otherwise, all hearings held in proceedings under [sections 1 through 156] are confidential and must be held in closed court without admittance of any person other than interested parties and their counsel.

(2)  All papers and records pertaining to the adoption must be kept as a permanent record of the court and must be withheld from inspection. A person may not have access to the records, except:

(a)  for good cause shown on order of the judge of the court in which the decree of adoption was entered;

(b)  as provided in [sections 141 through 146];

(c)  as provided in 50-15-121 and 50-15-122; or

(d) the department's child support enforcement division providing services under 42 U.S.C. 651, et seq.

(3)  All files and records pertaining to adoption proceedings retained by the department, a licensed child-placing agency, a lawyer, or any authorized agency are confidential and must be withheld from inspection, except as provided in 50-15-121, 50-15-122, and [sections 141 through 146].



Section 142.  Disclosure of records -- nonidentifying information -- consensual release. (1) The department or authorized person or agency may disclose:

(a)  nonidentifying information to an adoptee, an adoptive or birth parent, or an extended family member of an adoptee or birth parent; and

(b)  identifying information to a court-appointed confidential intermediary upon order of the court or as provided in 50-15-121 and 50-15-122.

(2) Information may be disclosed to any person who consents in writing to the release of confidential information to other interested persons who have also consented. Identifying information pertaining to an adoption involving an adoptee who is still a child may not be disclosed based upon a consensual exchange of information unless the adoptee's adoptive parent consents in writing.



Section 143.  Petition for appointment of confidential intermediary. (1) An adult adoptee, an adoptive or birth parent, or an adult extended family member of the adoptee or birth parent may petition the court for disclosure of identifying information regarding the adoptee, a birth child, a birth parent, or an extended family member.

(2) A petition for disclosure must contain:

(a) as much of the following information as is known by the petitioner:

(i)  the name, address, and identification of the petitioner;

(ii) the date of the adoptee's birth;

(iii) the county and state where the adoption occurred;

(iv) the date of the adoption; and

(v)  any other information known to the petitioner concerning the birth parents, the adoptive parent, and the adoptee that could assist in locating the person being sought;

(b) written documentation from a certified confidential intermediary agreeing to conduct the search; and

(c) if the petitioner is not the adoptee or birth parent, the reason the petitioner is requesting the appointment of a confidential intermediary.



Section 144.  Appointment of confidential intermediary -- duties -- payment. (1)  After a petition for disclosure has been filed under [section 143], the court shall appoint a confidential intermediary who shall:

(a)  conduct a confidential search for the person sought as requested in the petition for disclosure;

(b)  refrain from disclosing directly or indirectly any identifying information to the petitioner, unless ordered to do so by the court; and

(c)  make a written report of the results of the search to the court not later than 6 months after appointment.

(2) Upon appointment, a confidential intermediary is entitled to be paid a reasonable fee plus actual expenses incurred in conducting the search. The fee and expenses must be paid by the petitioner.

(3)  A confidential intermediary may inspect otherwise confidential records of the court, the department, or an authorized agency for use in the search. The confidential intermediary may not disclose identifying information from the records or any results of a search unless authorized by the court or unless the parties have executed written consent to the confidential intermediary. Nonidentifying information from any source may be disclosed without further order from the court.

(4)  If a confidential intermediary locates the person being sought, a confidential inquiry must be made as to whether the located person consents to having that person's present identity disclosed to the petitioner. The court may request that the confidential intermediary assist in arranging contact between the petitioner and the located person.

(5) If a confidential intermediary locates the person being sought and the located person does not consent to having that person's identity disclosed, identifying information regarding that person may be disclosed only upon order of the court for good cause shown.

(6) If the person being sought is found to be deceased, the court may order disclosure of identifying information regarding the deceased to the petitioner.



Section 145.  Disclosure authorized in course of employment. [Sections 1 through 156] do not preclude an employee or agent of a court, department, or agency from:

(1) inspecting permanent, confidential, or sealed records for the purpose of discharging any obligation under [sections 1 through 156];

(2) disclosing the name of the court in which a proceeding for adoption occurred or the name of an agency that placed an adoptee to an individual described in [section 143(1)] who can verify the individual's identity; or

(3) disclosing nonidentifying information contained in confidential or sealed records in accordance with any other applicable state or federal law.



Section 146.  Release of original birth certificate -- certificate of adoption. (1) For a person adopted on or before July 1, 1967, in addition to any copy of an adoptee's original birth certificate authorized for release by a court order issued pursuant to 50-15-121 or 50-15-122, the department shall furnish a copy of the original birth certificate upon the written request of an adoptee.

(2) For a person adopted between July 1, 1967, and September 30, 1997, in addition to any copy of an adoptee's original birth certificate authorized for release by a court order issued pursuant to 50-15-121 or 50-15-122, the department shall furnish a copy of the original birth certificate upon a court order.

(3) For a person adopted on or after [the effective date of this section], in addition to any copy of an adoptee's original birth certificate authorized for release by a court order issued pursuant to 50-15-121 or 50-15-122, the department shall furnish a copy of the original birth certificate upon:

(a) the written request of an adoptee who has attained 18 years of age unless the birth parent has requested in writing that the original birth certificate not be automatically released; or

(b) a court order.

(4) For a person adopted on or after [the effective date of this section] and subject to subsection (5), upon the request of an adoptive parent or an adoptee who has attained 18 years of age, the department shall issue a certificate of adoption that states the date and place of adoption, the date of birth of the adoptee, the name of each adoptive parent, and the name of the adoptee as provided in the decree.

(5) A birth parent may request in writing to the vital statistics bureau that the birth certificate for an adoptee not be released without a court order.



Section 147.  Fees related to placement for adoption by parent. (1) Reasonable adoption fees may be paid by the adoptive parent for the actual cost of services. The cost of services must relate to:

(a)  a petition for adoption;

(b)  placement of a child;

(c)  medical care or services;

(d)  prenatal care;

(e)  foster care;

(f)  a preplacement evaluation;

(g)  counseling related to providing information necessary to make an informed decision to voluntarily relinquish a child;

(h) travel or temporary living costs for the birth mother;

(i) legal fees incurred for services on behalf of the placing parent;

(j) the reasonable costs incurred by a placing parent in a direct parental placement adoption to document the disclosures of medical and social history required by [section 81]; and

(k)  other reasonable costs related to adoption that do not include education, vehicles, salary or wages, vacations, or permanent housing for the birth parent.

(2) A birth parent or a provider of a service listed in subsection (1) may receive or accept a payment authorized by subsection (1). The payment may not be made contingent on the placement of a child for adoption or upon relinquishment of and consent to adoption of the child. If the adoption is not completed, a person who is authorized by subsection (1) to make a specific payment is not liable for that payment unless the person has agreed in a signed writing with a birth parent or a provider of a service to make the payment regardless of the outcome of the proceeding for adoption.



Section 148.  Limitations on payment of counseling and legal fees. (1) A prospective adoptive parent may pay counseling expenses for a maximum of 10 hours of counseling.

(2) A prospective adoptive parent may pay for legal costs entailed for providing legal counsel for one birth parent unless the birth parents elect joint representation. The right of a relinquishing parent to legal counsel paid by the prospective adoptive parent continues only until the relinquishment becomes irrevocable. An attorney may not represent both a birth parent and a prospective adoptive parent.



Section 149.  Prohibited activities -- violations -- penalties. (1) A person, other than the department or a licensed child-placing agency, may not:

(a) advertise in any public medium that the person:

(i) knows of a child who is available for adoption; or

(ii) is willing to accept a child for adoption or knows of prospective adoptive parents for a child; or

(b) engage in placement activities as defined in [section 151].

(2) An individual other than an extended family member or stepparent of a child may not obtain legal or physical custody of a child for purposes of adoption unless the individual has a favorable preplacement evaluation or a court-ordered waiver of the evaluation.

(3)  A person who, as a condition for placement, relinquishment, or consent to the adoption of a child, knowingly offers, gives, agrees to give, solicits, accepts, or agrees to accept from another person, either directly or indirectly, anything other than the fees allowed under [section 147] commits the offense of paying or charging excessive adoption process fees.

(4) It is illegal to require repayment or reimbursement of anything provided to a birth parent under [section 147]. All payments by the adoptive parent made on behalf of a birth parent pursuant to this section are considered a gift to the birth parent.

(5)  A person convicted of the offense of paying or charging excessive adoption process fees, attempting to recover expenses incurred from an adoption process, or otherwise violating [sections 1 through 156] may be fined an amount not to exceed $10,000 in an action brought by the appropriate city or county attorney. The court may also enjoin from further violations any person who violates [sections 1 through 156].



Section 150.  Action by department. The department may review and investigate compliance with [sections 1 through 156] and may maintain an action in court to compel compliance.



Section 151.  Definitions. As used in [sections 151 through 156], the following definitions apply:

(1) "Person" includes any individual, partnership, voluntary association, or corporation.

(2) "Placement activities" means any of the following:

(a) placement of a child for adoption;

(b) arranging or providing short-term foster care for a child pending an adoptive placement; or

(c) facilitating placement of a child by maintaining a list in any form of birth parents or prospective adoptive parents.

(3) "Soliciting" means to request, offer, promote, refer, or entice, either directly or indirectly through correspondence, advertising, or other method, a potential adoptive parent or couple, birth parent or parents, or placement of a child by a birth parent.



Section 152.  General duties of department. The department shall:

(1)  issue licenses to entities engaged in child placement activities on [the effective date of this section] if the licensed applicant has met the requirements established by the department by rule;

(2)  prescribe the conditions upon which child-placing licenses are issued and revoked; and

(3)  adopt rules for the conduct of the affairs of child-placing agencies that are consistent with the welfare of children.



Section 153.  License required -- term of license -- no fee charged. (1) Only an entity holding a current child-placing agency license issued by the department may act as an agency for the purpose of:

(a) procuring or selecting proposed adoptive homes;

(b) placing children in proposed adoptive homes;

(c) soliciting persons to adopt children or arranging for persons to adopt children;

(d) soliciting persons to relinquish children or place children in potential adoptive homes; or

(e) engaging in placement activities.

(2) Licenses are valid for 1 year after issuance. A fee may not be charged for a license.



Section 154.  Requirements for licensure. The department may issue licenses to agencies meeting the following minimum requirements:

(1)  The chief function of the agency or a specific program within the agency must be the care and placement of children.

(2)  The agency operates on a nonprofit basis and is financially responsible in and for its operation.

(3) The agency meets the requirements as designated by the department by rule.

(4)  The directing or managing personnel of the agency must be qualified both on the basis of professional educational experience and character.

(5)  Complete records must be kept of both the children and adopting parents with which the agency deals, and the records must be maintained in accordance with [section 141].

(6)  The agency shall maintain and use an in-state office for making a social study of the child and proposed adoptive parent before placement of the child, particularly with regard to:

(a)  the physical and mental health, emotional stability, and personal integrity of the adoptive parent and the parent's ability to promote the child's welfare; and

(b)  the physical and mental condition of the child and the child's family background.

(7) The agency must have the ability to provide education for adoptive parents and counseling for placing parents as required in [section 48] and department rules.

(8)  The agency shall agree to cooperate with courts having jurisdiction in adoptive matters and with other public agencies having to deal with the welfare of children.

(9)  The agency shall, annually, submit a full, complete, and true financial statement to the department, and the statement must contain a full accounting of the operations of the agency during the preceding year.



Section 155.  Investigation of agencies -- cancellation of licenses. (1) The department may, through its authorized representative, investigate the operations of licensed agencies and may cancel licenses for failure to observe prescribed rules or to maintain minimum requirements. An agency shall give to representatives of the department all information requested and allow them to observe the operation of the agency.

(2)  When the department finds, upon the basis of the statement required by [section 154(9)] or upon its own investigation, that an agency has not conducted or is financially incapable of conducting its operations according to the established standards, the department may suspend, revoke, or deny a license for the agency.



Section 156.  Violation a misdemeanor -- penalty. (1) Any person who maintains or conducts an agency for procuring the adoption of children or assists in the maintaining or conducting of an agency without first obtaining a child-placing license is guilty of a misdemeanor and upon conviction of a first offense shall be punished by a fine not exceeding $1,000 or imprisonment for up to 1 year in jail and shall be enjoined from further engaging in agency activities.

(2) Upon the second conviction of a person for violation of [sections 153 through 155], the person is guilty of a felony and may be punished by a fine not exceeding $10,000 or imprisonment for up to 5 years in prison and shall be enjoined from further engaging in agency activities.



Section 157.  Section 2-6-104, MCA, is amended to read:

"2-6-104.  Records of officers open to public inspection. Except as provided in 40-8-126 and 27-18-111 and [section 141], the public records and other matters in the office of any officer are at all times during office hours open to the inspection of any person."



Section 158.  Section 2-18-606, MCA, is amended to read:

"2-18-606.  Parental leave for state employees. (1) The department of administration shall develop a parental leave policy for permanent state employees. The policy must permit an employee to take a reasonable leave of absence and permit the employee to use sick leave, immediately following the birth or placement of a child, for a period not to exceed 15 working days if:

(a)  the employee is adopting a child; or

(b)  the employee is a birth father.

(2)  As used in this section, "placement" means placement for adoption as defined in 40-8-103 33-22-130."



Section 159.  Section 17-7-502, MCA, is amended to read:

"17-7-502.  Statutory appropriations -- definition -- requisites for validity. (1) A statutory appropriation is an appropriation made by permanent law that authorizes spending by a state agency without the need for a biennial legislative appropriation or budget amendment.

(2)  Except as provided in subsection (4), to be effective, a statutory appropriation must comply with both of the following provisions:

(a)  The law containing the statutory authority must be listed in subsection (3).

(b)  The law or portion of the law making a statutory appropriation must specifically state that a statutory appropriation is made as provided in this section.

(3)  The following laws are the only laws containing statutory appropriations: 2-9-202; 2-17-105; 2-18-812; 3-5-901; 5-13-403; 10-3-203; 10-3-310; 10-3-312; 10-3-314; 10-4-301; 15-1-111; 15-23-706; 15-30-195; 15-31-702; 15-37-117; 15-38-202; 15-65-121; 15-70-101; 16-1-404; 16-1-410; 16-1-411; 16-11-308; 17-3-106; 17-3-212; 17-5-404; 17-5-424; 17-5-804; 17-6-101; 17-6-201; 17-7-304; 18-11-112; 19-2-502; 19-6-709; 19-9-1007; 19-17-301; 19-18-512; 19-18-513; 19-18-606; 19-19-205; 19-19-305; 19-19-506; 20-8-107; 20-8-111; 20-9-361; 20-26-1503; 23-5-136; 23-5-306; 23-5-409; 23-5-610; 23-5-612; 23-5-631; 23-7-301; 23-7-402; 32-1-537; 37-43-204; 37-51-501; 39-71-503; 39-71-907; 39-71-2321; 39-71-2504; [section 16]; 44-12-206; 44-13-102; 50-4-623; 50-5-232; 50-40-206; 53-6-150; 53-6-703; 53-24-206; 60-2-220; 67-3-205; 75-1-1101; 75-5-1108; 75-6-214; 75-11-313; 76-12-123; 80-2-103; 80-2-222; 80-4-416; 81-5-111; 82-11-136; 82-11-161; 85-1-220; 85-20-402; 90-3-301; 90-4-215; 90-6-331; 90-7-220; 90-7-221; and 90-9-306.

(4)  There is a statutory appropriation to pay the principal, interest, premiums, and costs of issuing, paying, and securing all bonds, notes, or other obligations, as due, that have been authorized and issued pursuant to the laws of Montana. Agencies that have entered into agreements authorized by the laws of Montana to pay the state treasurer, for deposit in accordance with 17-2-101 through 17-2-107, as determined by the state treasurer, an amount sufficient to pay the principal and interest as due on the bonds or notes have statutory appropriation authority for the payments. (In subsection (3): pursuant to sec. 7, Ch. 567, L. 1991, the inclusion of 19-6-709 terminates upon death of last recipient eligible for supplemental benefit; and pursuant to sec. 7(2), Ch. 29, L. 1995, the inclusion of 15-30-195 terminates July 1, 2001.)"



Section 160.  Section 25-1-201, MCA, is amended to read:

"25-1-201.  Fees of clerk of district court. (1) The clerk of the district court shall collect the following fees:

(a)  at the commencement of each action or proceeding, except a petition for dissolution of marriage, from the plaintiff or petitioner, $80; for filing a complaint in intervention, from the intervenor, $80; for filing a petition for dissolution of marriage, a fee of $120; and for filing a petition for legal separation, a fee of $120;

(b)  from each defendant or respondent, on appearance, $60;

(c)  on the entry of judgment, from the prevailing party, $45;

(d)  for preparing copies of papers on file in the clerk's office, 50 cents per page for the first five pages of each file, per request, and 25 cents per additional page;

(e)  for each certificate, with seal, $2;

(f)  for oath and jurat, with seal, $1;

(g)  for search of court records, 50 cents for each year searched, not to exceed a total of $25;

(h)  for filing and docketing a transcript of judgment or transcript of the docket from all other courts, the fee for entry of judgment provided for in subsection (1)(c);

(i)  for issuing an execution or order of sale on a foreclosure of a lien, $5;

(j)  for transmission of records or files or transfer of a case to another court, $5;

(k)  for filing and entering papers received by transfer from other courts, $10;

(l)  for issuing a marriage license, $30;

(m)  on the filing of an application for informal, formal, or supervised probate or for the appointment of a personal representative or the filing of a petition for the appointment of a guardian or conservator, from the applicant or petitioner, $70, which includes the fee for filing a will for probate;

(n)  on the filing of the items required in 72-4-303 by a domiciliary foreign personal representative of the estate of a nonresident decedent, $55;

(o)  for filing a declaration of marriage without solemnization, $30;

(p)  for filing a motion for substitution of a judge, $100;

(q) for filing a petition for adoption, $75.

(2)  Except as provided in subsections (3) through (8), 32% of all fees collected by the clerk of the district court must be deposited in and credited to the district court fund. If no district court fund exists, that portion of the fees must be deposited in the general fund for district court operations. The remaining portion of the fees must be remitted to the state to be deposited as provided in 19-5-404.

(3)  In the case of a fee collected for issuing a marriage license or filing a declaration of marriage without solemnization, $14 must be deposited in and credited to the state general fund, $6.40 must be deposited in and credited to the county general fund, and $9.60 must be remitted to the state to be deposited as provided in 19-5-404.

(4)  Of the fee for filing a petition for dissolution of marriage or legal separation, $40 must be deposited in the state general fund, $35 must be remitted to the state to be deposited as provided in 19-5-404, $5 must be deposited in the children's trust fund account established by 41-3-702, and $20 must be deposited in and credited to the district court fund. If no district court fund exists, the $20 must be deposited in the general fund for district court operations.

(5)  (a) Before the percentages contained in subsection (2) are applied and the fees deposited in the district court fund or the county general fund or remitted to the state, the clerk of the district court shall deduct from the following fees the amounts indicated:

(i)  at the commencement of each action or proceeding and for filing a complaint in intervention as provided in subsection (1)(a), $35;

(ii) from each defendant or respondent, on appearance, as provided in subsection (1)(b), $25;

(iii) on the entry of judgment as provided in subsection (1)(c), $15; and

(iv) from the applicant or petitioner, on the filing of an application for probate or for the appointment of a personal representative or on the filing of a petition for appointment of a guardian or conservator, as provided in subsection (1)(m), $15.

(b)  The clerk of the district court shall deposit the money deducted in subsection (5)(a) in the county general fund for district court operations unless the county has a district court fund. If the county has a district court fund, the money must be deposited in that fund.

(6)  The fee for filing a motion for substitution of a judge as provided in subsection (1)(p) must be remitted to the state to be deposited as provided in 19-5-404.

(7)  Fees collected under subsections (1)(d) through (1)(i) must be deposited in the district court fund. If no district court fund exists, fees must be deposited in the general fund for district court operations.

(8)  The clerk of the district court shall remit to the credit of the state general fund $20 of each fee collected under the provisions of subsections (1)(a) through (1)(c), (1)(m), and (1)(n) to fund a portion of judicial salaries.

(9) The clerk of district court shall remit to the credit of the special revenue account established in [section 16] $70 of the filing fee required in subsection (1)(q), and $5 of the filing fee must be deposited in the district court fund. If no district court fund exists, fees must be deposited in the general fund for district court operations."



Section 161.  Section 33-22-130, MCA, is amended to read:

"33-22-130.  Coverage for adopted children from time of placement -- preexisting conditions. (1) Each group and individual disability policy, certificate of insurance, or membership contract that is delivered, issued for delivery, renewed, extended, or modified in this state must provide coverage for an adopted child of the insured or subscriber to the same extent as for natural children of the insured or subscriber.

(2)  The coverage required by this section must be effective from the date of placement for the purpose of adoption and must continue unless the placement is disrupted prior to legal adoption and the child is removed from placement. Coverage at the time of placement must include the necessary care and treatment of medical conditions existing prior to the date of placement.

(3)  As used in this section, "placement" means placement for adoption as defined in 40-8-103 the transfer of physical custody of a child who is legally free for adoption to a person who intends to adopt the child."



Section 162.  Section 33-30-1016, MCA, is amended to read:

"33-30-1016.  Coverage for adopted children from time of placement -- preexisting conditions. (1) Each individual or group membership contract issued or amended by a health service corporation in this state that provides coverage of dependent children of a member must provide coverage for an adopted child of the member to the same extent as for natural children of the member.

(2)  The coverage required by this section must be effective from the date of placement for the purpose of adoption and must continue unless the placement is disrupted prior to legal adoption and the child is removed from placement. Coverage at the time of placement must include the necessary care and treatment of medical conditions existing prior to the date of placement.

(3)  As used in this section, "placement" means placement for adoption has the meaning as defined in 40-8-103 33-22-130."



Section 163.  Section 33-31-114, MCA, is amended to read:

"33-31-114.  Coverage for adopted children from time of placement -- preexisting conditions. (1) Each health maintenance contract regulated under this chapter must provide coverage for an adopted child of the enrollee to the same extent as for natural children of the enrollee.

(2)  The coverage required by this section must be effective from the date of placement for the purpose of adoption and must continue unless the placement is disrupted prior to legal adoption and the child is removed from placement. Coverage at the time of placement must include the necessary care and treatment of medical conditions existing prior to the date of placement.

(3)  As used in this section, "placement" means placement for adoption has the meaning as defined in 40-8-103 33-22-130."



Section 164.  Section 37-60-301, MCA, is amended to read:

"37-60-301.  License required. (1) Except as provided in 37-60-105, it is unlawful for any person to act as or perform the duties as defined in 37-60-101 of a contract security company or proprietary security organization, a private investigator, or a private security guard without having first obtained a license from the board. Those persons licensed on April 18, 1983, shall retain their current licensure status and shall renew their licenses on the renewal date as prescribed by the department.

(2)  It is unlawful for any unlicensed person to act as, pretend to be, or represent to the public that the person is licensed as a private investigator, a contract security company, a proprietary security organization, or a private security guard.

(3) A person appointed by the court as a confidential intermediary under [section 144] is not required to be licensed under this chapter. A person who is licensed under this chapter is not authorized to act as a confidential intermediary, as defined in [section 3], without meeting the requirements of [section 144].

(3)(4)  A person who knowingly engages an unlicensed private investigator, private security guard, or contract security company is guilty of a misdemeanor punishable under 37-60-411."



Section 165.  Section 40-6-108, MCA, is amended to read:

"40-6-108.  Statute of limitations. (1) An action may be commenced at any time for the purpose of declaring the existence or nonexistence of the father and child relationship presumed under subsection (a), (b), or (c) of 40-6-105(1)(a), (1)(b), or (1)(c).

(2)  After the presumption has been rebutted, paternity of the child by another man individual may be determined in the same action if the other man individual has been made a party.

(3)  An action to determine the existence or nonexistence of the father and child relationship as to a child who has no presumed father under 40-6-105:

(a)  may not be brought by the child later than 2 years after the child attains the age of majority;

(b)  may be brought by a state agency at any time after the first application is made under Title IV-D of the Social Security Act for services to the child and before the child attains the age of majority. This subsection is intended to apply retroactively, within the meaning of 1-2-109, to any child for whom a paternity action was barred or could have been barred by a shorter limitation period. However, in previously barred actions that are revived by this subsection, the father is not liable to the state agency for support of the child.

(4)  The father's liability for a statutory debt created by the payment of public assistance is limited to the amount of assistance paid during the 2-year period preceding commencement of the action. This subsection does not limit the subsequent accrual of a statutory debt.

(5)  Section 40-6-107 and this section do not extend the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates or to the determination of heirship or otherwise.

(6)  After the conclusion of an adoption proceeding under Title 40, chapter 8 [sections 1 through 156], a further action to declare the existence or nonexistence of the father and child relationship of the adopted child may not be commenced, except as provided in 40-8-112."



Section 166.  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 [sections 43 and 51];

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

(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 shall 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 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 due to proven parental abuse or neglect; and

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

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

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

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

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

(c)  the death of a sibling 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 167.  Section 41-5-603, MCA, is amended to read:

"41-5-603.  Youth court and department records. (1) Except as provided in subsection (2), all youth court records on file with the clerk of court, including reports of preliminary inquiries, petitions, motions, other filed pleadings, court findings, verdicts, orders, and decrees, are open to public inspection until the records are sealed under 41-5-604.

(2)  Social, medical, and psychological records, predispositional studies, supervision records of probationers, and any report, charge, or allegation that is not adjudicated pursuant to this chapter are open only to the following:

(a)  the youth court and its professional staff;

(b)  representatives of any agency providing supervision and having legal custody of a youth;

(c)  any other person, by order of the court, having a legitimate interest in the case or in the work of the court;

(d)  any court and its probation and other professional staff or the attorney for a convicted party who had been a party to proceedings in the youth court when considering the sentence to be imposed upon the party;

(e)  the county attorney;

(f)  the youth who is the subject of the report or record, after emancipation or reaching the age of majority;

(g)  a member of a county interdisciplinary child information team formed under 52-2-211 who is not listed in this subsection (2);

(h)  members of a local interagency staffing group provided for in 52-2-203; and

(i)  persons allowed access to the records under 45-5-624(7); and

(j) persons allowed access under [section 85].

(3)  Any part of records information secured from records listed in subsection (2), when presented to and used by the court in a proceeding under this chapter, must also be made available to the counsel for the parties to the proceedings.

(4)  After youth court and department records, reports of preliminary inquiries, predispositional studies, and supervision records of probationers are sealed, they are not open to inspection except, upon order of the youth court, for good cause to:

(a)  those persons and agencies listed in subsection (2); and

(b)  adult probation professional staff preparing a presentence report on a youth who has reached the age of majority."



Section 168.  Section 41-5-604, MCA, is amended to read:

"41-5-604.  Disposition of records. (1) Except as provided in subsections (2) and (5), youth court records and law enforcement records pertaining to a youth covered by this chapter must be physically sealed 3 years after supervision for an offense ends. The records may be unsealed if a new offense is committed.

(2)  In those cases in which jurisdiction of the court or any agency is extended beyond the youth's 18th birthday, the records and files not exempt from sealing under subsection (5) must be physically sealed upon termination of the extended jurisdiction.

(3)  Upon the physical sealing of the records pertaining to a youth pursuant to this section, an agency or department that has in its possession copies of the sealed records shall also seal or destroy the copies of the records. Anyone violating the provisions of this subsection is subject to contempt of court.

(4)  This section does not prohibit the destruction of records with the consent of the youth court judge or county attorney after 10 years from the date of sealing.

(5)  The requirements for sealed records in this section do not apply to fingerprints, DNA records, photographs, youth traffic records, records in any case in which the youth did not fulfill all requirements of the court's judgment or disposition, or records referred to in 45-5-624(7) or [section 85]."



Section 169.  Section 50-15-223, MCA, is amended to read:

"50-15-223.  Certificates of birth following adoption, legitimation, or determination or acknowledgment of paternity. (1) The department shall establish a new certificate of birth for a person born in this state when the department receives the following:

(a)  a certificate of adoption, as provided in 50-15-311, a certificate of adoption prepared and filed in accordance with the laws of another state or foreign country, or a certified copy of the decree of adoption, together with the information necessary to identify the original certificate of birth and to establish a new certificate of birth; or

(b)  a request that a new certificate be established if the request shows that:

(i)  a district court has determined the paternity of the person; or

(ii) both parents have acknowledged the paternity of the person and request that the surname be changed from that shown on the original certificate.

(2)  The date of birth and the city and county of birth must be stated in the newly established certificate of birth. The department shall substitute the new certificate of birth for the original certificate of birth in the files. The original certificate of birth and the evidence of adoption, legitimation, court determination of paternity, or paternity acknowledgment may not be are only subject to inspection, except upon order of a district court, as provided by rule, as provided in [sections 141 through 146], or as otherwise provided by state law.

(3)  Upon receipt of a report of an amended decree of adoption, the department shall amend the certificate of birth as provided in rules adopted by the department.

(4)  Upon receipt of a report or decree of annulment of adoption, the department shall restore the original certificate of birth issued before the adoption to its place in the files and the certificate of birth issued upon adoption and evidence pertaining to the adoption proceeding may not be open to inspection, except upon order of a district court or as provided by rule adopted by the department.

(5)  Upon written request of both parents and receipt of a sworn acknowledgment and other credible evidence of paternity signed by both parents of a child born outside of marriage, the department shall reflect the paternity on the child's certificate of birth if paternity is not already shown on the certificate of birth.

(6)  If a certificate of birth is not on file for the adopted child for whom a new certificate of birth is to be established under this section and the date and place of birth have not been determined in the adoption or paternity proceedings pertaining to the child, a delayed certificate of birth must be filed with the department, as provided in 50-15-204, before a new certificate of birth may be established. The new certificate of birth must be prepared on a form prescribed by the department.

(7)  When a new certificate of birth is established by the department, the department may direct that all copies of the original certificate of birth in the custody of any other custodian of vital records in this state either be sealed from inspection or be forwarded to the department for sealing from inspection.

(8)  (a) The department shall, upon request of the adopting parents, prepare and register a certificate of birth in this state for a person born in a foreign country who is not a citizen of the United States and who was adopted through a district court in this state.

(b)  The certificate of birth must be established by the department upon receipt of a certificate of adoption, conforming to the requirements of 50-15-311, from the court that reflects entry of an order of adoption, proof of the date and place of the child's birth, and a request for the establishment of a certificate of birth from the court, the adopting parents, or the adopted person, if the person is 18 years of age or older.

(c)  The certificate of birth must be labeled "Certificate of Foreign Birth" and must contain the actual country of birth. A statement must be included on the certificate indicating that it is not evidence of United States citizenship for the child for whom it is issued.

(d)  After registration of the certificate of birth in the new name of the adopted person, the department shall seal and file the certificate of adoption, which is not subject to inspection, except upon order of the district court, as provided by rule, or as otherwise provided by state law.

(9)  The department may promulgate rules necessary to implement this section."



Section 170.  Section 52-2-505, MCA, is amended to read:

"52-2-505.  Records to be confidential. All records regarding subsidized adoption are confidential and may be disclosed only in accordance with the provisions of 40-8-126 [section 141]."



Section 171.  Repealer. Sections 40-6-125, 40-6-126, 40-6-127, 40-6-128, 40-6-129, 40-6-130, 40-6-135, 40-8-101, 40-8-102, 40-8-103, 40-8-104, 40-8-105, 40-8-106, 40-8-107, 40-8-108, 40-8-109, 40-8-110, 40-8-111, 40-8-112, 40-8-113, 40-8-114, 40-8-115, 40-8-116, 40-8-117, 40-8-121, 40-8-122, 40-8-123, 40-8-124, 40-8-125, 40-8-126, 40-8-127, 40-8-128, 40-8-135, 40-8-136, 40-8-201, 40-8-202, 52-2-401, 52-2-402, 52-2-403, 52-2-404, 52-2-405, 52-2-406, and 52-2-407, MCA, are repealed.



Section 172.  Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.



Section 173.  Applicability. (1) [Sections 1 through 156] apply to proceedings commenced on or after October 1, 1997.

(2) A petition for adoption filed prior to October 1, 1997, is governed by the law in effect at the time the petition was filed.

(3) The putative father registry requirements apply to children born on or after October 1, 1997.



Section 174.  Code commissioner instructions. The code commissioner shall renumber Title 52, chapter 2, part 5, as an integral part of [sections 1 through 156] and make any changes necessary to reflect the renumbering. The entire body of material must be codified as Title 42.



Section 175.  Termination. [Sections 27, 59, 64, 66, 69, and 74] terminate October 1, 1998.



Section 176.  Notification to tribal governments. The secretary of state shall send a copy of [this act] to each tribal government located on the seven Montana reservations.



Section 177.  Effective dates. (1) Except as provided in subsection (2), [this act] is effective October 1, 1997.

(2) [Sections 19 through 26, 28 through 38, 60, 65, 67, 68, and 75] are effective October 1, 1998.

-END-