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, IF AVAILABLE, 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 INCLUDE STATEMENTS, IF ANY, MADE by the
parents' PARENTS PARENTS' STATEMENTS statement of PARENTS REGARDING the facts of the case or an
appearance by the parents at the hearing on the petition OR MUST ALLOW AN APPEARANCE BY THE PARENTS AT
THE HEARING ON THE PETITION, EXCEPT IN EMERGENCY CASES; 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,, IF THEY ARE REASONABLY AVAILABLE, before the state may file a petition for
temporary investigative authority and protective services and to require that a judge may not issue an order granting the
petition, except an order for immediate protection of the youth, until the parents 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, EXCEPT AN ORDER FOR
IMMEDIATE PROTECTION OF THE YOUTH, UNTIL THE PARENTS, IF THEY ARE REASONABLY
AVAILABLE, ARE GIVEN THE OPPORTUNITY TO APPEAR BEFORE THE JUDGE OR HAVE THEIR WRITTEN
STATEMENTS, IF ANY, 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,
AFFIDAVIT, OR REPORT OF THE DEPARTMENT MUST CONTAIN INFORMATION REGARDING
STATEMENTS, IF ANY, MADE by the parents detailing the parents' statement of the facts of the case 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. EXCEPT AS PROVIDED
IN 41-3-403, 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, IF ANY, 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 AND ANY ACCOMPANYING AFFIDAVIT OR REPORT TO THE
COURT, may issue an order granting relief that may be required for the immediate protection of the youth.
(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.