HOUSE BILL NO. 180
INTRODUCED BY L. SOFT, B. EGGERS
BY REQUEST OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES
AN ACT ALLOWING THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OR A GUARDIAN AD LITEM TO PETITION FOR APPOINTMENT OF A GUARDIAN FOR A CHILD FOUND TO BE A YOUTH IN NEED OF CARE EITHER AS PART OR NOT AS PART OF A TERMINATION OF PARENTAL RIGHTS; PROVIDING FOR REVOCATION OF GUARDIANSHIPS; CLARIFYING THE AUTHORITY OF THE DEPARTMENT TO PROVIDE FINANCIAL SUBSIDIES FOR GUARDIANSHIPS MEETING DEPARTMENT CRITERIA; AND AMENDING SECTIONS 41-3-401, 41-3-406, 41-3-412, 41-3-607, AND 41-3-1103, MCA.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 41-3-401, MCA, is amended to read:
"41-3-401. Abuse and neglect petitions. (1) The county attorney, attorney general, or an attorney hired by the county is responsible for filing all petitions alleging abuse or neglect. The county attorney, the attorney general, or an attorney hired by the department with the written consent of the county attorney or the attorney general may require all state, county, and municipal agencies, including law enforcement agencies, to conduct the investigations and furnish reports that may be necessary.
(2) Upon receipt of a petition, except a petition for temporary investigative authority, the court shall set a date for an adjudicatory hearing on the petition. The petitions must be given preference by the court in setting hearing dates.
(3) A petition alleging abuse or neglect is a civil action brought in the name of the state of Montana. The Montana Rules of Civil Procedure apply except as modified in this part. Proceedings under a petition are not a bar to criminal prosecution.
(4) The parents or parent, guardian, or other person or agency having legal custody of the youth named in the petition, if residing in the state, must be served personally with a copy of the petition and summons at least 5 working days before the date set for hearing. If the person or agency cannot be served personally, the person or agency may be served by publication in the manner provided by the Montana Rules of Civil Procedure for other types of proceedings.
(5) If personal service cannot be made upon the parents or parent, guardian, or other person or agency having legal custody, the court shall appoint an attorney to represent the unavailable party when in the opinion of the court the interests of justice require.
(6) If a parent of the child is a minor, notice must be given to the minor parent's parents or guardian, and if there is no guardian the court shall appoint one.
(7) Any person interested in any cause under this chapter has the right to appear.
(8) Except when the proceeding is instituted or commenced at the request of the department of public health and human services, a citation must be issued and served upon a representative of the department before the court hearing.
(9) The petition must:
(a) state the nature of the alleged abuse or neglect;
(b) state the full name, age, and address of the youth and the name and address of the youth's parents or guardian or person having legal custody of the youth;
(c) state the names, addresses, and relationship to the youth of all persons who are necessary parties to the action.
(10) The petition may ask for the following relief:
(a) temporary investigative authority and protective services, as provided in 41-3-402;
(b) temporary legal custody, as provided in 41-3-406;
(c) appointment of a guardian pursuant to [section 4];
(d) termination of the parent-child legal relationship and either:
(i) permanent legal custody with the right to consent to adoption, as provided in 41-3-607; or
(ii) appointment of a guardian; or
(d)(e) any combination of the provisions of subsections (10)(a) through (10)(c) (10)(d) or any other relief that may be
required for the best interests of the child.
(11) The petition may be modified for different relief at any time within the discretion of the court.
(12) The court may at any time on its own motion or the motion of any party appoint counsel for any indigent party."
Section 2. Section 41-3-406, MCA, is amended to read:
"41-3-406. Dispositional hearing -- temporary legal custody. (1) If a youth is found to be a youth in need of care under 41-3-404, the court may enter its judgment, making any of the following dispositions to protect the welfare of the youth:
(a) permit the youth to remain with the youth's parent or guardian, subject to those conditions and limitations the court may prescribe;
(b) grant an order of limited emancipation to a youth who is 16 years of age or older as provided in 41-3-408;
(c) transfer temporary legal custody to any of the following:
(i) the department;
(ii) a licensed child-placing agency that is willing and able to assume responsibility for the education, care, and maintenance of the youth and that is licensed or otherwise authorized by law to receive and provide care of the youth; or
(iii) a relative or other individual who is recommended by the department or a licensed child-placing agency designated by the court, and is found by the court to be qualified to receive and care for the youth;
(d) order any a party to the action to do what is necessary to give effect to the final disposition, including undertaking
medical and psychological evaluations, treatment, and counseling 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.
(e) order further care and treatment as the court considers in the best interests of the child 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 pursuant to 41-3-411.
(2) To grant temporary legal custody, the court shall make a finding that:
(a) returning the child to the child's parent or guardian would create a substantial risk of harm to the child or detriment to the child's physical or emotional well-being; and
(b) reasonable services have been provided to the parent or guardian to prevent the removal of the child from the home.
(3) In making a finding regarding the risk of harm to the child or regarding detriment to the child, failure of the child's parent or guardian to participate in, to comply with, in whole or in part, or to meet the goals of a court-ordered treatment plan constitutes prima facie evidence that return of the child to the parent or guardian would be detrimental to the child's physical or emotional well-being.
(4) An order for temporary legal custody may be in effect for no longer than 6 months. Before the expiration of the order for temporary legal custody the county attorney, the attorney general, or an attorney hired by the county shall petition for one of the following:
(a) an extension of temporary legal custody upon a showing that additional time is necessary for the parent or guardian to successfully complete a treatment plan;
(b) termination of the parent-child legal relationship and either:
(i) permanent legal custody with the right of adoption; or
(ii) appointment of a guardian pursuant to 41-3-607; or
(c) appointment of a guardian pursuant to [section 4]; or
(c)(d) dismissal.
(5) The court may continue an order for temporary legal custody pending a hearing on a petition provided for in subsection (4).
(6) If an extension of temporary legal custody is granted to the department, the court shall state the reasons why the child was not returned home and the conditions upon which the child may be returned home.
(7) If the time limitations of this section are not met, the court shall review the reasons for the failure and order an appropriate remedy that considers the best interests of the child."
Section 3. Section 41-3-412, MCA, is amended to read:
"41-3-412. Permanency plan hearing. (1) A permanency plan hearing must be held by the court no later than 12 months after the initial order is issued unless the proceeding has been dismissed, the child was not removed from the home, or the child has been returned to the child's parent or guardian. The permanency plan hearing may be combined with a hearing that is required in other sections of this part if held within the time limits of that section. If a permanency plan hearing is combined with another hearing, the requirements of the court related to the disposition of the other hearing must be met in addition to the requirements of this section.
(2) At least 3 days prior to the permanency plan hearing, the department and the guardian ad litem shall each submit a report regarding the child to the court for review. The report must contain the:
(a) efforts and progress demonstrated by the child's parent or guardian to complete a treatment plan;
(b) extent to which the parent or guardian cooperated and used the services provided;
(c) status of the child, including the child's mental, physical, and emotional health; and
(d) plan for permanency for the child.
(3) At least 3 days prior to the permanency plan hearing, an attorney or advocate for a parent or guardian may submit an informational report to the court for review.
(4) If the court finds that the permanency plan is in the best interests of the child, the court shall::
(a)(a) order the department to take whatever steps are necessary to effectuate the terms of the plan and shall order the
county attorney, the attorney general, or an attorney hired by the county to file any necessary petition with the court within
30 days after the present hearing for one of the following:
(i) termination of parental rights;
(ii) temporary legal custody, not to exceed 6 months; or
(iii) dismissal; and
(b) in its discretion, enter any other order that it determines to be in the best interests of the child 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; and
(b) in its discretion, enter any other order that it determines to be in the best interests of the child 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.
(5) If the permanency plan hearing results in an order for a 6-month extension of temporary legal custody, upon the
expiration of the temporary legal custody order and the filing of a petition by the department and if the court finds a finding
that reunification of the child with the child's parent or guardian is not in the best interests of the child, the court shall order
a subsequent petition may only be for:
(a) termination of parental rights if the applicable requirements to terminate parental rights have been met; or
(b) appointment of a guardian pursuant to [section 4]; or
(b)(c) long-term custody of a child if the evidence demonstrates by a preponderance of the evidence that:
(i) the child has been adjudicated a youth in need of care;
(ii) the department has made reasonable efforts to reunite the parent and child, further efforts by the department would likely be unproductive, and reunification of the child with the parent or guardian would be contrary to the best interests of the child;
(iii) the child has reached 12 years of age;
(iv) termination of parental rights to the child is not in the child's best interests; and
(v) the child has been in a placement in which the foster parent has committed to the long-term care and to a relationship with the child and it is in the best interests of the child to remain in that placement.
(6) The court may terminate long-term custody upon petition of the birth parents, those to whom legal custody has been transferred, or the department if the court finds that the circumstances of the child or family have substantially changed and the best interests of the child are no longer being served."
Section 4. Abuse and neglect proceedings -- appointment of guardian -- financial subsidies. (1) The court may, upon the petition of the department or guardian ad litem, enter an order appointing a guardian for a child who has been placed in the temporary or permanent custody of the department pursuant to 41-3-406, 41-3-412, or 41-3-607. The guardianship may be subsidized by the department under subsection (8) if the guardianship meets the department's criteria, or the guardianship may be nonsubsidized.
(2) The court may appoint a guardian for a child pursuant to this section if the following facts are found by the court:
(a) the department has given its written consent to the appointment of the guardian, whether the guardianship is to be subsidized or not;
(b) if the guardianship is to be subsidized, the department has given its written consent after the department has considered initiating or continuing financial subsidies pursuant to subsection (8);
(c) the child has been adjudicated a youth in need of care;
(d) the department has made reasonable efforts to reunite the parent and child, further efforts to reunite the parent and child by the department would likely be unproductive, and reunification of the parent and child would be contrary to the best interests of the child;
(e) the child is at least 12 years old or the child is in a group of siblings, at least one of whom is at least 12 years old, and the guardianship is in the best interests of the siblings;
(f) the child has lived with the potential guardian in a family setting and the potential guardian is committed to providing a long-term relationship with the child;
(g) it is in the best interests of the child to remain or be placed with the potential guardian;
(h) either termination of parental rights to the child is not in the child's best interests or parental rights to the child have been terminated, but adoption is not in the child's best interests; and
(i) if the child concerning whom the petition for guardianship has been filed is an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., the child's tribe has received notification from the state of the initiation of the proceedings.
(3) The entry of a decree of guardianship pursuant to this section terminates the custody of the department and the involvement of the department with the child and the child's parents except a provision of a financial subsidy, if any, pursuant to subsection (8).
(4) A guardian appointed under this section may exercise the powers and has the duties provided in 72-5-231.
(5) The court may revoke a guardianship ordered pursuant to this section if the court finds, after hearing on a petition for removal of the child's guardian, that continuation of the guardianship is not in the best interests of the child. Notice of hearing on the petition must be provided by the moving party to the child's lawful guardian, the department, any court appointed guardian ad litem, the child's parent if the rights of the parent have not been terminated, and other persons directly interested in the welfare of the child.
(6) A guardian may petition the court for permission to resign the guardianship. A petition may include a request for appointment of a successor guardian.
(7) After notice and hearing on a petition for removal or permission to resign, the court may appoint a successor guardian or may terminate the guardianship and restore temporary legal custody to the department pursuant to 41-3-406.
(8) The department may provide a financial subsidy to a guardian appointed pursuant to this section if the guardianship meets the department's criteria and if the department determines that a subsidy is in the best interests of the child. The amount of the subsidy must be determined by the department.
(9) This section does not apply to guardians appointed pursuant to Title 72, chapter 5.
Section 5. Section 41-3-607, MCA, is amended to read:
"41-3-607. Petition for termination -- separate hearing -- right to counsel -- no no jury trial. (1) The termination of
a parent-child legal relationship may be considered only after the filing of a petition pursuant to 41-3-401 alleging the
factual grounds for termination pursuant to 41-3-609. If termination of a parent-child legal relationship is ordered, the court
may:
(a) transfer permanent legal custody of the child, with the right to consent to the child's adoption, to:
(a)(i) the department;
(b)(ii) a licensed child-placing agency; or
(c)(iii) another individual who has been approved by the department and has received consent for the transfer of custody
from the department or agency that has custody of the child; or
(b) transfer permanent legal custody of the child to the department with the right to petition for appointment of a guardian pursuant to [section 4].
(2) After a petition for termination of a parent-child relationship is filed, parents must be advised of the right to counsel, and counsel must be appointed in accordance with 41-3-401.
(3) A guardian ad litem must be appointed to represent the child's best interests in any hearing determining the involuntary termination of the parent-child legal relationship. The guardian ad litem shall continue to represent the child until the child is returned home or placed in an appropriate permanent placement. If a respondent parent is a minor, a guardian ad litem must be appointed to serve the minor parent in addition to any counsel requested by the parent.
(4) There is no right to a jury trial at proceedings held to consider the termination of a parent-child legal relationship."
Section 6. Section 41-3-1103, MCA, is amended to read:
"41-3-1103. Powers and duties of department. (1) The department shall:
(a) administer all state and federal funds allocated to the department for youth foster homes, youth group homes, child-care agencies, and youth assessment centers for youth in need of care, as defined in 41-3-102;
(b) exercise licensing authority over all youth foster homes, youth group homes, child-care agencies, and youth assessment centers;
(c) collect and disseminate information relating to youth in need of care;
(d) provide for training of program personnel delivering services;
(e) in cooperation with youth care facility providers, develop and implement standards for youth care facilities;
(f) maintain adequate data on placements it funds in order to keep the legislature properly informed of the following:
(i) the number of youth in need of care in out-of-home care facilities;
(ii) the cost per facility for services rendered;
(iii) the type and level of care of services provided by each facility;
(iv) a profile of out-of-home care placements by level of care; and
(v) a profile of public institutional placements; and
(g) administer all funds allocated to the department for residential alcohol and drug abuse treatment for indigent youths in need of care, indigent youths in need of intervention, and indigent delinquent youths who require treatment.
(2) The department may:
(a) enter into contracts with nonprofit corporations or associations or private organizations to provide substitute care for youth in need of care in youth care facilities;
(b) accept gifts, grants, and donations of money and property from public and private sources to initiate and maintain community-based services to youth;
(c) adopt rules to carry out the administration and purposes of this part.
(3) The department shall pay for room, board, clothing, personal needs, transportation, and treatment in youth foster care homes and youth group homes for youths committed to the department who need to be placed in the facilities. Payments for the clothing of a child placed in a youth foster home must be provided to the extent the child needs a basic wardrobe or has a special clothing need. Payments under this subsection may not exceed appropriations for the purposes of this subsection.
(4) The department may provide a subsidy for a guardianship of a child who is in the department's legal custody if the guardianship has been approved by the department pursuant to [section 4] and in accordance with eligibility criteria established by department rule."
Section 7. 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 and to the Little Shell band of Chippewa.
Section 8. Codification instruction. [Section 4] is intended to be codified as an integral part of Title 41, chapter 3, part 4, and the provisions of Title 41, chapter 3, part 4, apply to [section 4].
- END -
Latest Version of HB 180 (HB0180.ENR)
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