_____________ bill NO. _____________

INTRODUCED BY _________________________________________________

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING LAWS RELATED TO COUNSEL FOR CHILDREN IN ABUSE AND NEGLECT CASES; PROVIDING QUALIFICATIONS and practice standards FOR COUNSEL REPRESENTING CHILDREN IN ABUSE AND NEGLECT CASES; REQUIRING THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES TO LEVERAGE AND MAXIMIZE FEDERAL RESOURCES TO SUPPORT THE PROVISION OF LEGAL REPRESENTATION TO CHILDREN; providing rulemaking authority; AND AMENDING SECTIONS 47-1-105 AND 47-1-121, MCA."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 47-1-105, MCA, is amended to read:

"47-1-105. Director -- duties -- report -- rules. (1) The director shall supervise and direct the system. In addition to other duties assigned pursuant to this chapter, the director shall:

(a) establish the qualifications, duties, and compensation of the public defender division administrator provided for in 47-1-201, hire the public defender division administrator after considering qualified applicants, and regularly evaluate the performance of the public defender division administrator;

(b) establish the qualifications, duties, and compensation of the appellate defender division administrator provided for in 47-1-301, hire the appellate defender division administrator after considering qualified applicants, and regularly evaluate the performance of the appellate defender division administrator;

(c) establish the qualifications, duties, and compensation of the conflict defender division administrator provided for in 47-1-401, hire the conflict defender division administrator after considering qualified applicants, and regularly evaluate the performance of the conflict defender division administrator; and

(d) establish the qualifications, duties, and compensation of the central services division administrator provided for in 47-1-119, hire the central services division administrator after considering qualified applicants, and regularly evaluate the performance of the central services division administrator.

(2) The director shall establish statewide standards for the qualification and training of attorneys providing public defender services to ensure that services are provided by competent counsel and in a manner that is fair and consistent throughout the state. The standards must take into consideration:

(a) the level of education and experience that is necessary to competently handle certain cases and case types, such as criminal, juvenile, abuse and neglect, civil commitment, capital, and other case types, including cases on appeal, in order to provide effective assistance of counsel;

(b) acceptable caseloads and workload monitoring protocols to ensure that public defender workloads are manageable;

(c) access to and use of necessary professional services, such as paralegal, investigator, and other services that may be required to support a public defender in a case;

(d) continuing education requirements for public defenders and support staff;

(e) practice standards;

(f) performance criteria; and

(g) performance evaluation protocols.

(3) In addition to the director's duties to establish statewide standards under subsection (2), the director shall establish specific standards for the qualification and training of attorneys providing public defender services to a child in an abuse and neglect case. The standards must take into consideration:

(a) additional training required to competently represent a child, which may include:

(i) methods for communicating with a child in a developmentally appropriate manner;

(ii) methods for presenting child testimony and alternatives to direct testimony;

(iii) early childhood, child, and adolescent development;

(iv) the dynamics of abuse and neglect, child sexual abuse, trauma, grief, and attachment;

(v) mental health issues, substance abuse issues, and the impact of domestic violence; and

(vi) available services and community resources for families;

(b) continuing education requirements specific to representing a child; and

(i) ensuring the child understands the role of counsel in the proceedings, including counsel's duty to maintain confidentiality, provide loyal and independent legal representation, and to advocate for the child's position;

(ii) taking all steps reasonably necessary to represent the child in the proceedings, including but not limited to interviewing the child, advising the child of the child's rights, educating the child about the legal process, informing the child of the child's options, counseling the child's decisionmaking, preparing a case theory and strategy, preparing for and participating in negotiations and hearings, and drafting and submitting motions, memoranda, and orders;

(iii) reviewing and accepting or declining, after appropriate consultation with the child, any proposed stipulation for an order affecting the child and explaining to the court the basis for any opposition to the proposed stipulation;

(iv) taking action counsel considers appropriate to expedite the proceedings and the resolution of contested issues;

(v) maintaining frequent and intentional contact with the child, at a minimum, prior to and after each court hearing, after every placement change, and no less than one in-person meeting every 3 months;

(vi) as directed by the child, consulting with the child's court-appointed special advocate or guardian ad litem;

(vii) investigating and taking necessary legal action regarding the child's medical, mental health, social, and educational needs and overall well-being;

(viii) visiting the home, residence, or any prospective residence of the child, including each time the placement is changed;

(ix) seeking court orders or taking any other necessary steps in accordance with the child's direction to ensure that the child's health, mental health, educational, developmental, cultural, and placement needs are met; and

(x) ensuring opportunities for the meaningful participation of the child in court hearings and other case events, including advising the child of the right to participate in the proceedings. If the child does not want to participate or wishes to waive the right to attend after being informed of the right and the nature of the proceedings, counsel for the child shall inform the court of the child's decision not to attend.

(3)(4) The director shall also:

(a) review and approve the strategic plan and budget based on proposals submitted by the public defender division administrator, the central services division administrator, the appellate defender division administrator, and the conflict defender division administrator;

(b) review and approve any proposal to create permanent staff positions;

(d) establish policies and procedures to ensure that detailed expenditure and caseload data is collected, recorded, and reported to support strategic planning efforts for the system; and

(e) examine workloads and workload standards for all levels within the office of state public defender and include its findings in the biennial report provided for in 47-1-125.

(4)(5) The office of state public defender shall adopt administrative rules pursuant to the Montana Administrative Procedure Act to implement the provisions of this chapter."

Section 2. Section 47-1-121, MCA, is amended to read:

"47-1-121. Contracted services. (1) The director shall establish standards for a statewide contracted services program to be managed by the central services division provided for in 47-1-119. The director shall ensure that contracting for public defender services is done fairly and consistently statewide and within each public defender region.

(2) There is a contract manager position in the central services division hired by the central services division administrator. The contract manager is responsible for the administrative oversight of contracting for attorney and nonattorney support for units of the office of state public defender.

(3) All contracting pursuant to this section is exempt from the Montana Procurement Act as provided in 18-4-132.

(4) Contracts may not be awarded based solely on the lowest bid or provide compensation to contractors based solely on a fixed fee paid irrespective of the number of cases assigned.

(5) Contracting for attorney services must be done through a competitive process that must, at a minimum, involve the following considerations:

(a) attorney qualifications necessary to provide effective assistance of counsel;

(b) attorney qualifications necessary to provide effective assistance of counsel that meets the standards issued by the Montana supreme court for counsel for indigent persons in capital cases;

(c) attorney qualifications necessary to provide effective assistance of counsel that meets the standards under 47-1-105(3) for counsel for a child in an abuse and neglect case;

(c)(d) attorney access to support services, such as paralegal and investigator services;

(d)(e) attorney caseload, including the amount of private practice engaged in outside the contract;

(e)(f) reporting protocols and caseload monitoring processes;

(f)(g) a process for the supervision and evaluation of performance;

(g)(h) a process for conflict resolution;

(h)(i) continuing education requirements; and

(i)(j) cost of the services.

(6) The public defender division administrator, deputy public defenders, appellate defender division administrator, and conflict defender division administrator shall supervise the personnel contracted for their respective offices and ensure compliance with the standards established in the contract.

(7) The director shall establish reasonable compensation for attorneys contracted to provide public defender and appellate defender services and for others contracted to provide nonattorney services.

(8) Contract attorneys may not take any money or benefit from an appointed client or from anyone for the benefit of the appointed client.

(9) The director shall limit the number of contract attorneys so that all contracted attorneys may be meaningfully evaluated.

(10) The director shall ensure that there are procedures for conducting an evaluation of every contract attorney on a biennial basis by the contract manager based on written evaluation criteria."

NEW SECTION. Section 3. Department to oversee federal funds supporting legal services for children. (1) The department shall leverage and maximize federal resources under Title IV-E of the Social Security Act to support the provision of quality legal representation to children in proceedings under Title 41, chapter 3.

(2) The department shall enter into an agreement with the office of state public defender to obtain federal reimbursement funds under Title IV-E of the Social Security Act for the provision of legal counsel to children in proceedings under Title 41, chapter 3.

NEW SECTION. Section 4. Codification instruction. [Section 3] is intended to be codified as an integral part of Title 52, chapter 2, part 1, and the provisions of Title 52, chapter 2, part 1, apply to [section 3].