House Bill No. 386
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act creating a family advocacy program to provide assistance to families that are involved in situations of state intervention in family affairs; setting out the duties and privileges of a family advocate, including immunity from liability; allowing a family advocate access to all relevant records; providing a system of registration of family advocates; and amending sections 41-3-205 and 41-5-603, MCA."
WHEREAS, because the state is considered to be a parent pursuant to the parens patriae doctrine, it is the duty of the state to protect children and the family by establishing a watchdog program of family advocacy that would not only guard and protect the vital interests of a child but also guard and protect the interests of the family as a whole by helping to prevent the development of erroneous case histories.
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Short title. [Sections 1 through 10] may be cited as the "Family Protection Act".
NEW SECTION. Section 2. Purpose. The purpose of [sections 1 through 10] is to provide for procedures, practices, and criteria by which an advocate for the rights and integrity of the family functions in times of intervention by the state following allegations of child abuse or neglect pursuant to Title 41, chapter 3, or allegations that a youth is in need of care or supervision pursuant to Title 41, chapter 5.
NEW SECTION. Section 3. Definitions. Unless the context requires otherwise, as used in [sections 1 through 10], the following definitions apply:
(1) "Department" means the department of public health and human services provided for in 2-15-2201.
(2) "Family advocate" means a person 18 years of age or older, chosen by a family, who is not an employee of the state and who, from the initial stages of an allegation of child abuse or neglect made pursuant to Title 41, chapter 3, or an allegation that a youth is in need of care or supervision made pursuant to Title 41, chapter 5, acts to guard and protect the rights and integrity of the child's family. The term includes a family advocacy group that is registered with the state as a nonprofit corporation.
NEW SECTION. Section 4. Immunity from liability. A family advocate is immune from liability, within the meaning of 41-3-203, for actions conducted by the family advocate that are authorized by [sections 1 through 10] while acting strictly within the scope of the duties set out in [sections 1 through 10].
NEW SECTION. Section 5. Confidentiality. (1) Except as provided in subsection (2), a family advocate shall maintain strict confidentiality regarding a family for whom advocacy is undertaken.
(2) A family advocate shall cooperate fully with any legal counsel representing a family without regard to confidentiality.
NEW SECTION. Section 6. Disclosure. The state, state agency personnel, a foster care review committee, any information source relative to the family, and any court shall, without regard to confidentiality and without requiring in camera inspection, disclose, upon request, all documentation, reports, and information regarding a family that is subject to an action brought pursuant to Title 41, chapter 3 or 5, to a family advocate serving that family.
NEW SECTION. Section 7. Duties of family advocate. Duties of a person acting on behalf of a family as a family advocate may include:
(1) rendering assistance and comfort to and acting as liaison for a family whose child is alleged to be abused, neglected, or in need of care or supervision from the initial stages of a case to its conclusion;
(2) attending court hearings regarding the allegations;
(3) acting as a friend of the court when appropriate, which may include the filing of briefs pursuant to Rule 24 of the Montana Rules of Appellate Procedure;
(4) notwithstanding the provisions of 41-3-1115(5), attending all meetings of a foster care review committee considering the case and providing information as required;
(5) acting as a liaison between the family and the court and between the family and the department;
(6) acting as a liaison between the parent and child;
(7) following the progress of an assigned case from its beginning until the child is either adopted or returned to the family;
(8) investigating delays in the progress of the case and acting as liaison with the family's attorney or department personnel, if necessary, to encourage the reduction of delays caused by problems of any kind;
(9) acting as personal representative of the family until the family obtains legal counsel;
(10) informing state authorities and the court of relatives, friends, neighbors, godparents, or members of a child's extended family who are willing to accept a child for temporary foster care and informing the family of any reason given by the department as to why a particular person is not acceptable to provide temporary foster care;
(11) if the court awards temporary care and custody of a child to a person referred to in subsection (10) while a case is pending, ensuring that foster care money is paid to that person in a timely manner; and
(12) if in the family advocate's opinion the case is not proceeding in a timely manner, acting as liaison or petitioner to the court to encourage timely resolution of the case, which may include seeking legal counsel from the public defender's office or a legal aid society.
NEW SECTION. Section 8. Registration of family advocate. (1) Before an individual person may act as a family advocate, that person shall register with the department on a form provided by the department. The department shall provide documentation of the person's acceptance as a family advocate to the person seeking registration. The person shall provide copies of the department's acceptance documentation to the county public defender's office, the county attorney's office, and the county sheriff's office in the county where registration is sought.
(2) (a) Before a nonprofit corporation may act as a family advocate, the corporation shall register with the department on a form provided by the department and shall present to the department a copy of its articles of incorporation and bylaws, a list of its officers, and a list of its members who are certified by the corporation to act as family advocates.
(b) The department shall provide documentation of the corporation's acceptance as a family advocate to the corporation seeking registration. The corporation shall provide copies of the department's acceptance documentation and all accompanying documentation to the county public defender's office, the county attorney's office, and the county sheriff's office in the county where registration is sought.
NEW SECTION. Section 9. Family advocate -- practice and procedures. (1) Whenever a case is instituted pursuant to Title 41, chapter 3 or 5, the department shall provide a list of potential family advocates to the family and the family may choose an advocate.
(2) Immediately upon being contacted by a family that wishes to use the services of a particular family advocate, that family advocate shall inform the department of the choice. The department shall then brief the family advocate on the particulars of the case, including a copy of charges filed and other revelant documents, and provide an indication of whether additional charges are contemplated and what action the department contemplates will be taken. The family advocate may comment on the charges and actions and the department shall consider the family advocate's comments in formulating its actions.
(3) A family advocate shall submit to the family a document, to be signed by a family member, attesting to the fact that the advocate has been chosen by the family. The family advocate shall retain a copy of the document and give the original to a family member as part of the standard package required in subsection (4).
(4) A family advocate shall present to the family a standard package that contains, at a minimum:
(a) the original signed attestation that the family advocate has been chosen by the family, as provided in subsection (3);
(b) a copy of the statutes, rules, and policies under which the case is proceeding, including a plain language explanation of those statutes, rules, and policies;
(c) a copy of any formal charges or allegations filed in the case and a copy of any other documents filed by the state relating to the case;
(d) a list of parental and family rights, privileges, and duties and any pertinent general information regarding family law;
(e) a list of attorneys recognized by the state bar association as family law practitioners; and
(f) a document describing the family advocacy program, including duties of a family advocate and services available to the family through the family advocate.
(5) The department shall allow visits between the family advocate and the affected child. Following any visit, the family advocate shall meet with all concerned parties separately or collectively to assess the case. The family advocate shall act as liaison with the family to apprise the family of developments as the case proceeds.
(6) A family advocate shall maintain a journal record of all actions taken on the case. If the family advocate is removed from the case or no longer functions as a family advocate, the journal must be made available to any family advocate who acts as a replacement. The journal is considered privileged and is to be available for viewing only by immediate family members and their legal counsel.
(7) A family advocate must be informed of and is entitled to be present at any interview of the child by the court or the department.
NEW SECTION. Section 10. Compensation for family advocate services. A family advocate may accept compensation for services rendered in the form of unconditional grants from the public or private sector.
Section 11. Section 41-3-205, MCA, is amended to read:
"41-3-205. Confidentiality -- disclosure exceptions. (1) The case records of the department of public health and human services and its local affiliate, the county welfare department, the county attorney, and the court concerning actions taken under this chapter and all records concerning reports of child abuse and neglect must be kept confidential except as provided by this section. Except as provided in subsections (4) and (5), a person who permits or encourages the unauthorized dissemination of the contents of case records is guilty of a misdemeanor.
(2) Records may be disclosed to a court for in camera inspection if relevant to an issue before it. The court may permit public disclosure if it finds disclosure to be necessary for the fair resolution of an issue before it.
(3) Records may also be disclosed to the following persons or entities in this state and any other state or country:
(a) a department, agency, or organization, including a federal agency, military enclave, or Indian tribal organization, that is legally authorized to receive, inspect, or investigate reports of child abuse or neglect and that otherwise meets the disclosure criteria contained in this section;
(b) a licensed youth care facility or a licensed child-placing agency that is providing services to the family or child who is the subject of a report in the records;
(c) a health or mental health professional who is treating the family or child who is the subject of a report in the records;
(d) a parent, guardian, or person designated by a parent or guardian of the child who is the subject of a report in the records or other person responsible for the child's welfare, without disclosure of the identity of any person who reported or provided information on the alleged child abuse or neglect incident contained in the records;
(e) a child named in the records who was allegedly abused or neglected or the child's legal guardian or legal representative, including the child's guardian ad litem or attorney or a special advocate appointed by the court to represent a child in a pending case;
(f) the state protection and advocacy program as authorized by 42 U.S.C. 6042(a)(2)(B);
(g) approved foster and adoptive parents who are or will be providing care for a child;
(h) a person about whom a report has been made and that person's attorney, with respect to the relevant records pertaining to that person only and without disclosing the identity of the reporter or any other person whose safety may be endangered;
(i) an agency, including a probation or parole agency, that is legally responsible for the supervision of an alleged perpetrator of child abuse or neglect;
(j) a person, agency, or organization that is engaged in a bona fide research or evaluation project and that is authorized by the department to conduct the research or evaluation;
(k) the members of an interdisciplinary child protective team authorized under 41-3-108 for the purposes of assessing the needs of the child and family, formulating a treatment plan, and monitoring the plan;
(l) the coroner or medical examiner when determining the cause of death of a child;
(m) a child fatality review team recognized by the department;
(n) a department or agency investigating an applicant for a license or registration that is required to operate a youth care facility, day-care facility, or child-placing agency;
(o) a person or entity who is carrying out background, employment-related, or volunteer-related screening of current or prospective employees or volunteers who have or may have unsupervised contact with children through employment or volunteer activities. A request for information under this subsection (3)(o) must be made in writing. Disclosure under this subsection (3)(o) is limited to information that indicates a risk to children posed by the person about whom the information is sought, as determined by the department.
(p) the news media if disclosure is limited to confirmation of factual information regarding how the case was handled and if disclosure does not violate the privacy rights of the child or the child's parent or guardian as determined by the department;
(q) an employee of the department or other state agency if disclosure of the records is necessary for administration of programs designed to benefit the child;
(r) an agency of an Indian tribe or the relatives of an Indian child if disclosure of the records is necessary to meet requirements of the federal Indian Child Welfare Act;
(s) a youth probation officer who is working in an official capacity with the child who is the subject of a report in the records;
(t) a county attorney, peace officer, or attorney who is hired by or represents the department, if disclosure is necessary for the investigation, defense, or prosecution of a case involving child abuse or neglect;
(u) a foster care review committee established under 41-3-1115 or, when applicable, a local citizen review board established under Title 41, chapter 3, part 10;
(v) a school employee participating in an interview of a child by a social worker, county attorney, or peace officer as provided in 41-3-202;
(w) a member of a county interdisciplinary child information team formed under the provisions of 52-2-211;
(x) members of a local interagency staffing group provided for in 52-2-203;
(y) a member of a youth placement committee formed under the provisions of 41-5-525; or
(z) a family advocate acting pursuant to [sections 1 through 10].
(4) A person who is authorized to receive records under this section shall maintain the confidentiality of the records and may not disclose information in the records to anyone other than the persons described in subsection (3)(a). However, this subsection may not be construed to compel a family member to keep the proceedings confidential.
(5) A news organization or its employee, including a freelance writer or reporter, is not liable for reporting facts or statements made by an immediate family member under subsection (4) if the news organization, employee, writer, or reporter maintains the confidentiality of the child who is the subject of the proceeding.
(6) This section is not intended to affect the confidentiality of criminal court records or records of law enforcement agencies."
Section 12. 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;
(i) a family advocate acting pursuant to [sections 1 through 10]; and
(j) persons allowed access to the records under 45-5-624(7).
(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."
NEW SECTION. Section 13. Codification instruction. [Sections 1 through 10] are intended to be codified as an integral part of Title 41, and the provisions of Title 41 apply to [sections 1 through 10].
NEW SECTION. Section 14. 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.