Senate Bill No. 283
Introduced By burnett, grinde, estrada, baer, keating, aklestad, hargrove, mahlum
A Bill for an Act entitled: "An Act requiring a social worker in child abuse and neglect cases to interview
AVAILABLE THE parents before requesting temporary investigative authority; requiring that a petition for temporary
investigative authority and protective services in child abuse and neglect cases must be accompanied INCLUDE
STATEMENTS MADE, IF ANY, BE ACCOMPANIED by the parents' PARENTS PARENTS' STATEMENTS statement
of the facts of the case or an appearance by the parents at the hearing on the petition OR AN APPEARANCE BY THE
PARENTS AT THE HEARING ON THE PETITION; amending sections 41-3-101, 41-3-402, and 41-3-403, MCA; and
providing an immediate effective date."
Be it enacted by the Legislature of the State of Montana:
Section 1. Section 41-3-101, MCA, is amended to read:
"41-3-101. Declaration of policy. (1) It is the policy of the state of Montana to:
(a) ensure that all youth are afforded an adequate physical and emotional environment to promote normal development;
(b) compel in proper cases the parent or guardian of a youth to perform the moral and legal duty owed to the youth;
(c) achieve these purposes in a family environment whenever possible;
(d) preserve the unity and welfare of the family whenever possible; and
(e) ensure that there is no forced removal of a child from the family based solely on an unsubstantiated allegation of abuse or neglect.
(2) It is the policy of this state to:
(a) protect, whenever possible, family unity;
(b) provide for the protection of children whose health and welfare are or may be adversely affected and further threatened
by the conduct of those responsible for their care and protection;
(c) require a department social worker to interview the parents of a child to which a petition pertains
, IF THEY ARE
REASONABLY AVAILABLE, before the state may file a petition for temporary investigative authority and protective
services and to require that a judge may not issue an order granting the petition until the parents are given the opportunity
to appear before the judge or have their written statements presented to the judge for consideration before an order is
granted AND TO REQUIRE THAT A JUDGE MAY NOT ISSUE AN ORDER GRANTING THE PETITION UNTIL
THE PARENTS, IF THEY ARE REASONABLY AVAILABLE, ARE GIVEN THE OPPORTUNITY TO APPEAR
BEFORE THE JUDGE OR HAVE THEIR WRITTEN STATEMENTS PRESENTED TO THE JUDGE FOR
CONSIDERATION BEFORE AN ORDER IS GRANTED; and (c)(d) ensure that whenever removal of a child from the home is necessary, the child is entitled to maintain ethnic, cultural,
and religious heritage whenever appropriate.
(3) It is intended that the mandatory reporting of abuse or endangerment cases by professional people and other community members to the appropriate authority will cause the protective services of the state to seek to prevent further abuses, protect and enhance the welfare of these children, and preserve family life whenever appropriate.
(4) In implementing the policy of this section, whenever it is necessary to remove a child from the child's home, the department shall, when it is in the best interests of the child and when the home is approved by the department, place the child with the child's extended family, including adult siblings, grandparents, great-grandparents, aunts, and uncles, prior to placing the child in an alternative protective or residential facility. Prior to approving a home, the department shall investigate whether anyone living in the home has been convicted of a crime involving serious harm to children."
Section 2. Section 41-3-402, MCA, is amended to read:
"41-3-402. Petition for temporary investigative authority and protective services. (1) In a case in which it appears that a youth is abused or neglected or is in danger of being abused or neglected, the county attorney, the attorney general, or an attorney hired by the county may file a petition for temporary investigative authority and protective services.
(2) A petition for temporary investigative authority and protective services must state the specific authority requested and the facts establishing probable cause that a youth is abused or neglected or is in danger of being abused or neglected.
(3) The petition for temporary investigative authority and protective services must be supported by an affidavit signed by
the county attorney, the attorney general, or an attorney hired by the county or must be supported by a department
health and human services report stating in detail the facts upon which the request is based. The petition must also contain
written statements prepared, AFFIDAVIT, OR REPORT OF THE DEPARTMENT MUST CONTAIN INFORMATION
REGARDING STATEMENTS, IF ANY, MADE MUST ALSO CONTAIN WRITTEN STATEMENTS PREPARED by
the parents detailing the parents' statement of the facts of the case or must be presented to the court in the presence of the
parents who must be given an opportunity to address the court before the court rules on the petition OR MUST BE
PRESENTED TO THE COURT IN THE PRESENCE OF THE PARENTS, WHO MUST BE GIVEN AN
OPPORTUNITY TO ADDRESS THE COURT BEFORE THE COURT RULES ON THE PETITION."
Section 3. Section 41-3-403, MCA, is amended to read:
"41-3-403. Order for immediate protection of youth. (1) (a) Upon the filing of a petition for temporary investigative
authority and protective services, the court, after consideration of
the parents' statements included with THE PARENTS'
STATEMENTS INCLUDED WITH the petition or of the parents' remarks in court in relation to the petition AND ANY
ACCOMPANYING AFFIDAVIT OR REPORT TO THE COURT OR OF THE PARENTS' REMARKS IN COURT IN
RELATION TO THE PETITION, may issue an order granting relief that may be required for the immediate protection of
(b) The order, along with the petition and supporting documents, must be served by a peace officer or a representative of the department on the person or persons named in the order. When the youth is placed in a medical facility or protective facility, the department shall notify the parents or parent, guardian, or other person having legal custody of the youth, at the time the placement is made or as soon after placement as possible.
(c) The order must require the person served to comply immediately with the terms of the order or to appear before the court issuing the order on the date specified and show cause why the person has not complied with the order. The show cause hearing must be conducted within 20 days of the issuance of the order by the judge or a master appointed by the judge. The person filing the petition has the burden of presenting evidence establishing probable cause for the issuance of the order. Except as otherwise provided in this part, the rules of civil procedure apply. Hearsay evidence of statements made by the affected youth is admissible at the hearing or at a contested case proceeding held pursuant to Title 2, chapter 4, part 6, that results from adverse licensing action taken by the department.
(d) Upon a failure to comply or show cause, the court may hold the person in contempt or place temporary legal custody of the youth with the department until further order.
(2) The court may grant the following kinds of relief:
(a) right of entry by a peace officer or department worker;
(b) medical and psychological evaluation of the youth or parents, guardians, or person having legal custody;
(c) requirement that the youth, parents, guardians, or person having legal custody receive counseling services;
(d) placement of the youth in a temporary medical facility or a facility for protection of the youth;
(e) requirement that the parents, guardian, or other person having custody furnish services that the court may designate;
(f) inquiry into the financial ability of the parents, guardian, or other person having custody of the youth to contribute to the costs for the care, custody, and treatment of the youth and requirement of a contribution for those costs pursuant to the requirements of 41-3-406(3) through (6);
(g) other temporary disposition that may be required in the best interest of the youth that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined."
NEW SECTION. Section 4. Effective date. [This act] is effective on passage and approval.