HOUSE BILL NO. 366
INTRODUCED BY B. KASTEN, M. HALLIGAN, C. AHNER, B. BARNHART, M. GUGGENHEIM, R. JOHNSON, L. SOFT, M. WATERMAN
AN ACT REVISING THE LAWS GOVERNING CHILD PROTECTIVE SERVICES; IMPLEMENTING THE FEDERAL ADOPTION AND SAFE FAMILIES ACT; CLARIFYING WHEN EFFORTS MUST BE MADE TO REUNIFY CHILDREN WITH ABUSIVE PARENTS; CLARIFYING WHEN PARENTAL RIGHTS MAY BE JUDICIALLY TERMINATED; AND AMENDING SECTIONS 41-3-101, 41-3-102, 41-3-108, 41-3-202, 41-3-203, 41-3-205, 41-3-303, 41-3-401, 41-3-403, 41-3-404, 41-3-406, 41-3-412, 41-3-607, 41-3-609, 41-3-1103, AND 42-2-608, MCA.
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; and
(f) recognize that a child is entitled to assert the child's constitutional rights.
(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, 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 statements, if any, presented to the judge for consideration before an order is granted; and
(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 41-3-102, MCA, is amended to read:
"41-3-102. Definitions. As used in this chapter, the following definitions apply:
(1) "Abandon", "abandoned", and "abandonment" mean:
(a) leaving a child under circumstances that make reasonable the belief that the parent does not intend to resume care of the child in the future;
(b) willfully surrendering physical custody for a period of 6 months and during that period not manifesting to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child; or
(c) that the parent is unknown and has been unknown for a period of 90 days and that reasonable efforts to identify and locate the parent have failed.
(1)(2) "A person responsible for a child's welfare" means:
(a) the child's parent, guardian, foster parent or an adult who resides in the same home in which the child resides;
(b) a person providing care in a day-care facility;
(c) an employee of a public or private residential institution, facility, home, or agency; or
(d) any other person responsible for the child's welfare in a residential setting.
(2)(3) "Abused or neglected" means the state or condition of a child who has suffered child abuse or neglect.
(3)(4) (a) "Adequate health care" means any medical care or nonmedical remedial health care recognized by an insurer
licensed to provide disability insurance under Title 33, including the prevention of the withholding of medically indicated
treatment or medically indicated psychological care permitted or authorized under state law.
(b) This chapter may not be construed to require or justify a finding of child abuse or neglect for the sole reason that a parent or legal guardian, due to religious beliefs, does not provide adequate health care for a child. However, this chapter may not be construed to limit the administrative or judicial authority of the state to ensure that medical care is provided to the child when there is imminent substantial risk of serious harm to the child.
(4)(5) "Best interests of the child" means the physical, mental, and emotional psychological conditions and needs of the
child and any other factor considered by the court to be relevant to the child.
(5)(6) "Child" or "youth" means any person under 18 years of age.
(6)(7) (a) "Child abuse or neglect" means:
(i) actual harm to a child's health or welfare; or
(ii) threatened substantial risk of harm to a child's health or welfare.
(b) The term includes harm or threatened harm to a child's health or welfare actual harm or substantial risk of harm by
the acts or omissions of a person responsible for the child's welfare.
(c) The term does not include self-defense, defense of others, or action taken to prevent the child from self-harm that does not constitute harm to a child's health or welfare.
(7)(8) "Department" means the department of public health and human services provided for in 2-15-2201.
(8) "Emotional abuse" means injury to the emotional well-being or intellectual or psychological capacity of a child, as
evidenced by an identifiable and substantial impairment of a child's physical, mental, or emotional ability to function.
(9) "Harm to a child's health or welfare" means the harm that occurs whenever the parent or other person responsible for the child's welfare:
(a) inflicts or allows to be inflicted upon the child physical or emotional abuse psychological abuse or neglect;
(b) commits or allows to be committed sexual abuse or exploitation of the child;
(c) induces or attempts to induce a child into giving untrue testimony that the child or another child was abused or neglected by a parent or person responsible for the child's welfare;
(d) causes malnutrition or failure to thrive or otherwise fails to supply the child with adequate food or fails to supply clothing, shelter, education, or adequate health care, though financially able to do so or offered financial or other reasonable means to do so;
(e) exposes or allows the child to be exposed to an unreasonable risk to the child's health or welfare by failing to intervene or eliminate the risk; or
(f) abandons the child by leaving the child under circumstances that make reasonable the belief that the parent or other
person does not intend to resume care of the child in the future or willfully surrenders physical custody for a period of 6
months and during that period does not manifest to the child and the person having physical custody of the child a firm
intention to resume physical custody or to make permanent legal arrangements for the care of the child; or
(g) is unknown and has been unknown for a period of 90 days and reasonable efforts to identify and locate the parent or
other person have failed.
(10) "Limited emancipation" means a status conferred on a youth by a court after a dispositional hearing in accordance
with 41-3-406 under which the youth is entitled to exercise some but not all of the rights and responsibilities of a person
who is 18 years of age or older.
(11) "Parent" means a biological or adoptive parent or stepparent.
(12) "Parent-child legal relationship" means the legal relationship that exists between a child and the child's birth or adoptive parents, as provided in Title 40, chapter 6, part 2, unless the relationship has been terminated by competent judicial decree as provided in 40-6-234, Title 42, or part 6 of this chapter.
(13) "Physical abuse" means an intentional act, an intentional omission, or gross negligence resulting in substantial skin
bruising, internal bleeding, substantial injury to skin, subdural hematoma, intentional burns, bone fractures, extreme pain,
permanent or temporary disfigurement, impairment of any bodily organ or function, or death if the injury or death is not
accidental.
(14) "Psychological abuse or neglect" means severe maltreatment through acts or omissions that are injurious to the child's emotional, intellectual, or psychological capacity to function, including acts of violence against another person residing in the child's home.
(14)(15) "Reasonable cause to suspect" means cause that would lead a reasonable person to believe that child abuse or
neglect may have occurred or is occurring, based on all the facts and circumstances known to the person.
(15)(16) "Residential setting" means an out-of-home placement where the child typically resides for longer than 30 days
for the purpose of receiving food, shelter, security, guidance, and, if necessary, treatment.
(16)(17) (a) "Sexual abuse" means the commission of sexual assault, sexual intercourse without consent, indecent
exposure, deviate sexual conduct, sexual abuse, ritual abuse, or incest, as described in Title 45, chapter 5, part 5.
(b) Sexual abuse does not include any necessary touching of an infant's or toddler's genital area while attending to the sanitary or health care needs of that infant or toddler by a parent or other person responsible for the child's welfare.
(17)(18) "Sexual exploitation" means allowing, permitting, or encouraging a child to engage in a prostitution offense, as
described in 45-5-601 through 45-5-603, or allowing, permitting, or encouraging sexual abuse of children as described in
45-5-625.
(18)(19) "Social worker" means an employee of the department who, before the employee's field assignment, has been
educated or trained or is receiving education or training in a program of social work or a related field that includes cognitive
and family systems treatment or who has equivalent verified experience or verified training in the investigation of child
abuse, neglect, and endangerment. This definition does not apply to any provision of this code that is not in this chapter.
(19) "Threatened harm to a child's health or welfare" means substantial risk of harm to the child's health or welfare.
(20) "Treatment plan" means a written agreement between the department and the parent or guardian or a court order that includes action that must be taken to resolve the condition or conduct of the parent or guardian that resulted in the need for protective services for the child. The treatment plan may involve court services, the department, and other parties, if necessary, for protective services.
(21) "Unfounded" means that after an investigation, the investigating person has determined that the reported abuse, neglect, or exploitation has not occurred.
(21)(22) (a) "Withholding of medically indicated treatment" means the failure to respond to an infant's life-threatening
conditions by providing treatment, including appropriate nutrition, hydration, and medication, that, in the treating
physician's or physicians' reasonable medical judgment, will be most likely to be effective in ameliorating or correcting the
conditions.
(b) The term does not include the failure to provide treatment, other than appropriate nutrition, hydration, or medication, to an infant when, in the treating physician's or physicians' reasonable medical judgment:
(i) the infant is chronically and irreversibly comatose;
(ii) the provision of treatment would:
(A) merely prolong dying;
(B) not be effective in ameliorating or correcting all of the infant's life-threatening conditions; or
(C) otherwise be futile in terms of the survival of the infant; or
(iii) the provision of treatment would be virtually futile in terms of the survival of the infant and the treatment itself
under the circumstances would be inhumane. For purposes of this subsection (21) (22), "infant" means an infant less than 1
year of age or an infant 1 year of age or older who has been continuously hospitalized since birth, who was born extremely
prematurely, or who has a long-term disability. The reference to less than 1 year of age may not be construed to imply that
treatment should be changed or discontinued when an infant reaches 1 year of age or to affect or limit any existing
protections available under state laws regarding medical neglect of children 1 year of age or older.
(22)(23) "Youth in need of care" means a youth who is has been adjudicated or determined, after a hearing, to be or to
have been abused or neglected."
Section 3. Section 41-3-108, MCA, is amended to read:
"41-3-108. Child protective teams. The county attorney, county commissioners, guardian ad litem, or the department
of public health and human services may convene one or more temporary or permanent interdisciplinary child protective
teams. These teams may assist in assessing the needs of, formulating and monitoring a treatment plan for, and coordinating
services to the child and the child's family. The supervisor of child protective services in a local service area or the
supervisor's designee shall serve as the team's coordinator. Members shall must include:
(1) a social worker;
(2) a member of a local law enforcement agency;
(3) a representative of the medical profession;
(4) a representative of a public school system;
(4)(5) a county attorney; and
(5)(6) if an Indian child or children are involved, someone, preferably an Indian person, knowledgeable about Indian
culture and family matters."
Section 4. Section 41-3-202, MCA, is amended to read:
"41-3-202. Action on reporting. (1) Upon receipt of a report, as required by 41-3-201, that a child is or has been
abused or neglected, a social worker, the county attorney, or a peace officer shall promptly conduct a thorough investigation
into the circumstances surrounding the allegations of abuse or neglect of the child, which. The investigation may include an
investigation at the home of the child involved, the child's school or day-care facility, or any other place where the child is
present and into all other nonfinancial matters that in the discretion of the investigator are relevant to the investigation. In
conducting an investigation under this section, a social worker may not inquire into the financial status of the child's family
or of any other person responsible for the child's care, except as necessary to ascertain eligibility for state or federal
assistance programs or to comply with the provisions of 41-3-411.
(2) An initial investigation of alleged abuse or neglect may be conducted when an anonymous report is received. However, the investigation must within 48 hours develop independent, corroborative, and attributable information in order for the investigation to continue. Without the development of independent, corroborative, and attributable information, a child may not be removed from the home.
(3) The social worker is responsible for assessing the family and planning for the child. If the child is treated at a
medical facility, the social worker, county attorney, or peace officer, consistent with reasonable medical practice, has the
right of access to the child for interviews, photographs, and securing physical evidence and has the right of access to
relevant hospital and medical records pertaining to the child. If a child interview is considered appropriate by necessary, the
social worker, county attorney, or peace officer conducting an interview of the child, an employee of the school attended by
the child involved may participate in any may conduct an interview of the child. The interview may be conducted in the
presence of the parent or guardian or an employee of the school or day-care facility attended by the child.
(4) If Subject to 41-3-205(3), if the child's interview is audiotaped or videotaped, an unedited audiotape or videotape
with audio track must be made available, upon request, for unencumbered review by the family.
(5) (a) If from the investigation the department has reasonable cause to suspect that the child suffered abuse or neglect, the department may provide protective services to the child pursuant to 41-3-301 and may provide protective services to any other child under the same care. The department shall:
(i) after interviewing the parent or guardian, if reasonably available, document its determination regarding abuse or neglect of a child; and
(ii) notify the child's family of its investigation and determination, unless the notification can reasonably be expected to result in harm to the child or other person.
(b) If from the investigation it is determined that the child has not suffered abuse or neglect and the initial report is determined to be unfounded, the department and the social worker, county attorney, or peace officer who conducted the investigation into the circumstances surrounding the allegations of abuse or neglect shall destroy all of their records concerning the report and the investigation. The destruction must be completed within 30 days of the determination that the child has not suffered abuse or neglect.
(6) The investigating social worker, within 60 days of commencing an investigation, shall also furnish a written report to the department and, upon request, to the family. Subject to subsection (5)(b), the department shall maintain a record system documenting investigations and determinations of child abuse and neglect cases.
(7) Any person reporting abuse or neglect that involves acts or omissions on the part of a public or private residential institution, home, facility, or agency is responsible for ensuring that the report is made to the department through its local office."
Section 5. Section 41-3-203, MCA, is amended to read:
"41-3-203. Immunity from liability. (1) Anyone investigating or reporting any incident of child abuse or neglect under 41-3-201 or 41-3-202, participating in resulting judicial proceedings, or furnishing hospital or medical records as required by 41-3-202 is immune from any liability, civil or criminal, that might otherwise be incurred or imposed unless the person was grossly negligent or acted in bad faith or with malicious purpose or provided information knowing the information to be false.
(2) A person who provides information pursuant to 41-3-201 that is substantiated by the department or a person who uses information received pursuant to 41-3-205 that is substantiated by the department to refuse to hire or to discharge a prospective or current employee, volunteer, or other person who through employment or volunteer activities may have unsupervised contact with children is immune from civil liability unless the person acted in bad faith or with malicious purpose."
Section 6. 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, including case notes, correspondence, evaluations, videotapes, and interviews, unless otherwise protected
by this section or unless disclosure of the records is determined to be detrimental to the child or harmful to another person
who is a subject of information contained in the 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 or to a person authorized by the department to receive relevant information for the purpose of determining the best interests of a child with respect to an adoptive placement;
(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 may 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 or of a family group conference 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, persons with developmental disabilities, or older persons 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 41-5-121; or
(z) a principal of a school or other employee of the school district authorized by the trustees of the district to receive the information with respect to a student of the district who is a client of the department.
(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.
(7) Copies of records, evaluations, reports, or other evidence obtained or generated pursuant to this section that are provided to the parent, the guardian, or the parent or guardian's attorney must be provided without cost."
Section 7. Section 41-3-303, MCA, is amended to read:
"41-3-303. Guardian ad litem. (1) In every judicial proceeding, the court shall appoint for any child alleged to be abused or neglected a guardian ad litem. The department or any of its staff may not be appointed as the guardian ad litem in a judicial proceeding under this title. When necessary, the guardian ad litem may serve at public expense.
(2) The guardian ad litem is charged with the representation of the child's best interests. The guardian ad litem has and
shall perform the following general duties:
(a) to conduct investigations that the guardian ad litem considers necessary to ascertain the facts constituting the alleged
abuse or neglect;
(b) to interview or observe the child who is the subject of the proceeding;
(c) to have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child's siblings and parents or custodians;
(d) to make written reports to the court concerning the child's welfare;
(e) to appear and participate in all proceedings to the degree necessary to adequately represent the child and make
recommendations to the court concerning the child's welfare; and
(f) to perform other duties as directed by the court; and
(g) if an attorney, to file motions, including but not limited to filing to expedite proceedings or otherwise assert the child's rights.
(3) Information contained in a report filed by the guardian ad litem or testimony regarding a report filed by the guardian ad litem is not hearsay when it is used to form the basis of the guardian ad litem's opinion as to the best interests of the child.
(4) Any party may petition the court for the removal and replacement of the guardian ad litem if the guardian ad litem fails to perform the duties of the appointment."
Section 8. 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 under this chapter. 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. The petition must be accompanied by an affidavit by the department alleging that the child
appears to have been abused, neglected, or abandoned and stating the basis for the allegation.
(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. Any foster parent, preadoptive parent, or relative caring for the child must be given legal notice by the attorney filing the petition of all judicial hearings for the child and must be given an opportunity to be heard. The right to appear or to be heard does not make that person a party to the action. Any foster parent, preadoptive parent, or relative caring for the child must be given notice of all reviews by the reviewing body.
(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) termination of the parent-child legal relationship and permanent legal custody with the right to consent to adoption, as provided in 41-3-607; or
(d) any combination of the provisions of subsections (10)(a) through (10)(c) or any other relief that may be required for the best interests of the child.
(11) A request for a determination that reunification services need not be provided pursuant to 41-3-403 may be made in conjunction with the filing of a petition requesting relief, as provided for in subsection (10) of this section.
(11)(12) The petition may be modified for different relief at any time within the discretion of the court.
(12)(13) The court may at any time on its own motion or the motion of any party appoint counsel for any indigent party."
Section 9. 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, if any, included with 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 pursuant to the Montana Rules of Civil Procedure 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 and to appear before the court issuing the order on the date specified for a show cause hearing. 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. At the show cause hearing, the court shall provide an opportunity for a parent or guardian, if present, and any other person having relevant knowledge to provide relevant testimony. The court may consider all relevant evidence in accordance with the rules of civil procedure as modified by this part, but may in its discretion limit testimony and evidence to only that which is relevant to the issues of removal from the home and the child's need for continued protection. The court may amend 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) If the child is not returned home after the show cause hearing, the person served may request that a local citizen review board, if available pursuant to part 10, review the case within 30 days of the show cause hearing and make a recommendation to the district court, as provided in 41-3-1010.
(e) Upon a failure to comply or show cause, the court may hold the person in contempt or place temporary physical custody of the youth with the department until further order.
(2) In At the conclusion of a show cause hearing, in an order granting or denying relief, the court shall make a finding
regarding the reasonableness of agency efforts to rehabilitate the family to prevent the child's removal from the home or to
make it possible to safely return the child to the child's home. In determining preservation or reunification services to be
provided and in making reasonable efforts at providing preservation or reunification services, the child's health and safety
are of paramount concern. Reasonable efforts to provide preservation or reunification services are not required if the court
finds that the parent has:
(a) subjected a child to aggravated circumstances, including but not limited to abandonment, torture, chronic abuse, or sexual abuse or chronic, severe neglect of a child;
(b) committed, aided, abetted, attempted, conspired, or solicited deliberate or mitigated deliberate homicide of a child;
(c) committed aggravated assault against a child;
(d) committed neglect of a child that resulted in serious bodily injury or death; or
(e) had parental rights to the child's sibling or other child of the parent involuntarily terminated, and the circumstances related to the termination of parental rights are relevant to the parent's ability to adequately care for the child at issue.
(3) Preservation or reunification services are not required for a putative father, as defined in 42-2-201, if the court makes a finding that the putative father has failed to do any of the following:
(a) contribute to the support of the child for an aggregate period of 1 year, although able to do so;
(b) establish a substantial relationship with the child. A substantial relationship is demonstrated by:
(i) visiting the child at least monthly when physically and financially able to do so; or
(ii) having regular contact with the child or with the person or agency having the care and custody of the child when physically and financially able to do so; and
(iii) manifesting an ability and willingness to assume legal and physical custody of the child if the child was not in the physical custody of the other parent.
(c) register with the putative father registry pursuant to Title 42, chapter 2, part 2, and the person has not been:
(i) adjudicated in Montana to be the father of the child for the purposes of child support; and
(ii) recorded on the child's birth certificate as the child's father.
(4) If the court finds that preservation or reunification services are not necessary pursuant to subsection (2), a permanency hearing must be held within 30 days of that determination and reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.
(5) If reasonable efforts have been made to prevent removal of a child from the home or to return a child to the child's home but continuation of the efforts is determined by the court to be inconsistent with the permanency plan for the child, the department shall make reasonable efforts to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child. Reasonable efforts to place a child permanently for adoption or to make an alternative out-of-home permanent placement may be made concurrently with reasonable efforts to return a child to the child's home.
(3)(6) 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 physical or legal custody;
(c) requirement that the youth, parents, guardians, or person having physical or 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 physical or legal custody furnish services information
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 41-3-411; or
(g) other temporary disposition that may be required in the best interests 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.
(4)(7) An order for temporary investigative authority and protective services may not be issued for a period longer than
90 days following the show cause hearing and must be limited to one extension of 90 days. Before the expiration of the
time provided for in an order for temporary investigative authority and protective services, the county attorney, the attorney
general, or an attorney hired by the county shall file a petition for one of the following:
(a) limited emancipation;
(b) temporary legal custody;
(c) termination of the parent-child legal relationship and permanent legal custody with the right to consent to adoption; or
(d) dismissal.
(5)(8) Notwithstanding the above time limits, the court may continue an order for temporary investigative authority
pending a hearing on a petition provided for in subsection (4) (7).
(6)(9) 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 10. Section 41-3-404, MCA, is amended to read:
"41-3-404. Adjudicatory hearing -- temporary disposition. (1) In the adjudicatory hearing on a petition under 41-3-401, the court shall determine by a preponderance of the evidence whether the youth is a youth in need of care and ascertain, as far as possible, the cause.
(2) The court shall hear evidence regarding the residence of the youth, the whereabouts of the parents, guardian, or nearest adult relative, and any other matters the court considers relevant in determining the status of the youth.
(3) In all civil and criminal proceedings relating to abuse or neglect, none of the privileges related to the examination or treatment of the child and granted in Title 26, chapter 1, part 8, except the attorney-client privilege granted by 26-1-803 and the mediator privilege granted by 26-1-811, apply.
(4) (a) If the court determines that the youth is not an abused or neglected child, the petition must be dismissed and any order made pursuant to 41-3-403 must be vacated.
(b) If the youth is adjudicated a youth in need of care, the court shall set a date for a dispositional hearing to be
conducted within 30 days and order any necessary or required investigations. The court may issue a temporary dispositional
order pending the dispositional hearing. The temporary dispositional order may provide for any of the forms of relief listed
in 41-3-403(3)(6)."
Section 11. 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 who is found by the court to be qualified to receive and care for the youth;
(d) order any 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 dismissing the petition would create a substantial risk of harm to
the child or detriment to the child's physical or emotional psychological well-being; and
(b) unless there is a finding that reasonable efforts are not required pursuant to 41-3-403, reasonable services have been provided to the parent or guardian to prevent the removal of the child from the home or to make it possible for the child to safely return 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. If reasonable efforts have been made to prevent removal of a child from the home or to
return a child to the child's home but continuation of the efforts is determined by the court to be inconsistent with
permanency for the child, the department shall make reasonable efforts to place the child in a timely manner in accordance
with a permanent plan and to complete whatever steps are necessary to finalize the permanent placement of the child.
(4) If the court finds that reasonable efforts are not necessary pursuant to subsection (2) or (3), a permanency hearing must be held within 30 days of that determination and reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.
(4)(5) 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, not to exceed a total of 6 months, 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 permanent legal custody with the right of adoption pursuant to
41-3-607; or
(c) long-term custody pursuant to 41-3-412; or
(d) dismissal.
(5)(6) The court may continue an order for temporary legal custody pending a hearing on a petition provided for in
subsection (4) (5).
(6)(7) 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)(8) 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 12. 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 court finding that the child has been subjected to abuse or neglect or 12 months after
the child's first 60 days of removal from the home, whichever comes first, 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 psychological health; and
(d) plan for permanency for the child, including specific times for achieving the plan.
(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) order the department to take whatever steps are necessary to effectuate the terms of the plan, including returning the
child safely to the child's home, and shall order the county attorney, the attorney general, or an attorney hired by the county
to file a petition to implement the plan with the court within 30 days after the present hearing unless a petition has already
been filed. 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(5) In its discretion, the court may enter any other order that it determines to be in the best interests of the child
that does not conflict with the provisions in subsection (6) and 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)(6) 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
any subsequent petition filed must be one of the following:
(a) termination of parental rights if the applicable requirements to terminate parental rights have been met; or
(b) long-term custody of a child if the evidence demonstrates by a preponderance of the evidence, which is reflected in specific findings by the court, that:
(i) the child has an emotional or mental handicap that is so severe that the child cannot function in a family setting and the best interests of the child are served by placement in a residential or group setting;
(ii) the child is at least 16 years of age and is participating in an independent living program and that termination of parental rights is not in the best interests of the child;
(iii) the child's parent is incarcerated and circumstances, including placement of the child and continued, frequent contact with the parent, indicate that it would not be in the best interests of the child to terminate parental rights of that parent;
(iv) the child is in a group of siblings, at least one of whom meets the requirements of subsections (6)(b)(v)(A) through (6)(b)(v)(D), and the best interests of the child will be met by continued placement in the sibling group in long-term foster care; or
(v) the child is at least 12 years of age and meets the following criteria:
(A) the child has been adjudicated a youth in need of care;
(ii)(B) 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)(C) termination of parental rights to the child is not in the child's best interests; and
(v)(D) 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)(7) 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 13. Review hearing. Within 12 months of a finding that reunification is not in the best interests of the child, the court shall make additional findings regarding the department's reasonable efforts to make and finalize a permanent placement for the child.
Section 14. When petition to terminate parental rights required. (1) If a child has been in foster care under the custody of the state for 15 months of the most recent 22 months, the best interests of the child must be presumed to be served by termination of parental rights. If a child has been in foster care for 15 months of the most recent 22 months or if the court has found that reasonable efforts to preserve or reunify a child with the child's parent or guardian are not required pursuant to 41-3-403, a petition to terminate parental rights must be filed unless:
(a) the child is being cared for by a relative;
(b) the department has not provided the services considered necessary for the safe return of the child to the child's home; or
(c) the department has documented a compelling reason, available for court review, for determining that filing a petition to terminate parental rights would not be in the best interests of the child.
(2) Compelling reasons for not filing a petition to terminate parental rights include but are not limited to the following:
(a) There are insufficient grounds for filing a petition.
(b) There is adequate documentation that termination of parental rights is not the appropriate plan and not in the best interests of the child.
(3) If a child has been in foster care for 15 months of the most recent 22 months and a petition to terminate parental rights regarding that child has not been filed with the court, the department shall file a report to the court or review panel at least 3 days prior to the next hearing or review detailing the reasons that the petition was not filed.
(4) If a hearing results in a finding of abandonment or that the parent has subjected the child to any of the circumstances listed in 41-3-403(2)(a) through (2)(e) and that reasonable efforts to provide preservation or reunification are not necessary, unless there is an exception made pursuant to subsections (1)(a) through (1)(c) of this section, a petition to terminate parental rights must be filed within 60 days of the finding.
Section 15. Treatment plan -- contents -- changes. (1) Upon the stipulation of the parties or upon a judicial finding that a child is a youth in need of care, the court may order a treatment plan.
(2) Every treatment plan must contain the following information:
(a) the identification of the problems or conditions that resulted in the abuse or neglect of a child;
(b) the treatment goals and objectives for each condition or requirement established in the plan. If the child has been removed from the home, the treatment plan must include but is not limited to the conditions or requirements that must be established for the safe return of the child to the family.
(c) the projected time necessary to complete each of the treatment objectives;
(d) the specific treatment objectives that clearly identify the separate roles and responsibilities of all parties addressed in the treatment plan; and
(e) the signature of the parent or parents or guardian, unless the plan is ordered by the court.
(3) A treatment plan may include but is not limited to any of the following remedies, requirements, or conditions:
(a) the right of entry into the child's home for the purpose of assessing compliance with the terms and conditions of a treatment plan;
(b) the requirement of either the child or the child's parent or guardian to obtain medical or psychiatric diagnosis and treatment through a physician or psychiatrist licensed in the state of Montana;
(c) the requirement of either the child or the child's parent or guardian to obtain psychological treatment or counseling;
(d) the requirement of either the child or the child's parent or guardian to obtain and follow through with alcohol or substance abuse evaluation and counseling, if necessary;
(e) the requirement that either the child or the child's parent or guardian be restricted from associating with or contacting any individual who may be the subject of a department investigation;
(f) the requirement that the child be placed in a temporary medical facility or a facility for protection of the youth;
(g) the requirement that the parent, guardian, or other person having physical or legal custody furnish services that the court may designate.
(4) A treatment plan may not be altered, amended, continued, or terminated without the approval of the parent or parents or guardian pursuant to a stipulation and order or order of the court.
Section 16. Section 41-3-607, MCA, is amended to read:
"41-3-607. Petition for termination -- separate hearing -- right to counsel -- 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 transfer permanent legal custody of the child, with the right to consent to the child's adoption, to:
(a) the department;
(b) a licensed child-placing agency; or
(c) 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.
(2) After At the time that 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 for an indigent party.
(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 17. Section 41-3-609, MCA, is amended to read:
"41-3-609. Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(a) the parents have relinquished the child pursuant to 42-2-402 and 42-2-412;
(b) the child has been abandoned by the parents as set forth in 41-3-102;
(c) the identity of the parent is unknown and has been unknown for a period of 90 days and reasonable efforts to
identify and locate the parent have failed;
(d) the parent is convicted of a felony in which sexual intercourse occurred or is a minor adjudicated a delinquent youth
because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of
the sexual intercourse, the child is born;
(d) the parent has subjected the child to any of the circumstances listed in 41-3-403(2)(a) through (2)(e);
(e) the putative father meets any of the criteria listed in 41-3-403(3)(a) through (3)(c); or
(e)(f) the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or
(f) the parent has substantially failed to successfully complete or meet the goals of a treatment plan approved by the
court and the child has been in an out-of-home placement for a cumulative total period of 1 year or longer.
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(b) a history of violent behavior by the parent;
(c) a single incident of life-threatening or gravely disabling injury to or disfigurement of a child caused by the parent;
(d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent's ability to care and
provide for the child; and
(e)(d) present judicially ordered long-term confinement of the parent;
(f) the injury or death of a child because of proven abuse or neglect; and
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.
(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give
primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and,
if necessary, order an evaluation of the child's or the parent's physical, mental, and emotional conditions.
(4) A treatment plan is not required under this part upon a finding by the court following hearing if:
(a) the parent meets the criteria of subsections (1)(a) through (1)(e);
(a)(b) two medical doctors or clinical psychologists submit testimony that the parent cannot assume the role of parent;
(b)(c) the parent is or will be incarcerated for more than 1 year and a treatment plan is not practical considering the
incarceration reunification of the child with the parent is not in the best interests of the child because of the child's
circumstances, including placement options, age, and developmental, cognitive, and psychological needs; or
(c)(d) the death or serious bodily injury, as defined in 45-2-101(64), of a child caused by abuse or neglect by the parent
has occurred."
Section 18. 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 in accordance with eligibility criteria established by department rule."
Section 19. Section 42-2-608, MCA, is amended to read:
"42-2-608. Finding of unfitness. (1) The court may terminate parental rights for purposes of making a child available for adoption on the grounds of unfitness if:
(a) the court makes a determination that the parent has been judicially deprived of custody of the child on account of abuse or neglect toward the child;
(b) the parent has in the state of Montana or in any other jurisdiction of the United States willfully abandoned the child,
as defined in 41-3-102(7)(e), in Montana or in any other jurisdiction of the United States;
(c) it is proven, to the satisfaction of the court, that the parent, if able, has not contributed to the support of the child for an aggregate period of 1 year before the filing of a petition for adoption;
(d) it is proven, to the satisfaction of the court, that the parent is in violation of a court order to support either the child that is the subject of the adoption proceedings or other children with the same birth mother;
(e) the parent has been found guilty by a court of competent jurisdiction of:
(i) aggravated assault on the adoptee, as provided in 45-5-202;
(ii) sexual assault on a child, as provided in 45-5-502;
(iii) sexual intercourse without consent, as provided in 45-5-503, if the victim was a child;
(iv) incest, as provided in 45-5-507, if the victim was a child;
(v) homicide of a child, as provided in 45-5-102 or 45-5-103;
(vi) sexual abuse of a child, as provided in 45-5-625; or
(vii) ritual abuse of a minor, as provided in 45-5-627;
(f) the child has been maintained by a public or private children's institution, a charitable agency, a licensed child-placing agency, or the department for a period of 1 year without the parent contributing to the support of the child during that period, if able;
(g) a finding is made for a parent who is given proper notice of hearing:
(i) that the parent has been convicted of a crime of violence or of violating a restraining or protective order; and
(ii) the facts of the crime or violation and the parent's behavior indicate that the parent is unfit to maintain a relationship of parent and child with the child;
(h) a finding is made for a parent who is given proper notice of hearing and is a respondent to the petition to terminate parental rights and:
(i) by a preponderance of the evidence, it is found that termination is in the best interests of the child; and
(ii) upon clear and convincing evidence, it is found that one of the following grounds exists:
(A) if the child is not in the legal and physical custody of the other parent, that the respondent is not able or willing to promptly assume legal and physical custody of the child and to pay for the child's support in accordance with the respondent's financial means;
(B) if the child is in the legal and physical custody of the other parent and a stepparent who is the prospective adoptive parent, that the respondent is not able or willing to promptly establish and maintain contact with the child and to pay for the child's support in accordance with the respondent's financial means;
(C) placing the child in the respondent's legal and physical custody would pose a risk of substantial harm to the physical or psychological well-being of the child because the circumstances of the child's conception, the respondent's behavior during the mother's pregnancy or since the child's birth, or the respondent's behavior with respect to other children indicates that the respondent is unfit to maintain a relationship of parent and child with the child; or
(D) failure to terminate the relationship of parent and child would be detrimental to the child.
(2) In making a determination under subsection (1)(h)(ii)(D), the court shall consider any relevant factor, including the respondent's efforts to obtain or maintain legal and physical custody of the child, the role of other persons in thwarting the respondent's efforts to assert parental rights, the respondent's ability to care for the child, the age of the child, the quality of any previous relationship between the respondent and the child and between the respondent and any other children, the duration and suitability of the child's present custodial environment, and the effect of a change of physical custody on the child."
Section 20. 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 21. Codification instruction. (1) [Section 13] 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 13].
(2) [Section 14] is intended to be codified as an integral part of Title 41, chapter 3, part 6, and the provisions of Title 41, chapter 3, part 6, apply to [section 14].
(3) [Section 15] 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 15].
- END -
Latest Version of HB 366 (HB0366.ENR)
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