Bill Summary – FastDemocracy

68th Legislature                                                                                                 HB 16.1
                                                 HOUSE BILL NO. 16
                                           INTRODUCED BY J. CARLSON
    BY REQUEST OF THE CHILDREN, FAMILIES, HEALTH, AND HUMAN SERVICES INTERIM COMMITTEE
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  A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING PROCEDURES RELATED TO CHILD
  ABUSE AND NEGLECT PROCEEDINGS; PROVIDING FOR SHARING OF INFORMATION WITH THE
  OFFICE OF STATE PUBLIC DEFENDER; PROVIDING FOR PREHEARING CONFERENCES BEFORE
  EMERGENCY PROTECTIVE SERVICES HEARINGS; REMOVING THE EXCEPTION FOR USE OF
  PREHEARING CONFERENCES AND EMERGENCY PROTECTIVE SERVICES HEARINGS IN CASES
  SUBJECT TO THE INDIAN CHILD WELFARE ACT; CLARIFYING THAT A SUPPORT PERSON MAY BE
  PRESENT DURING AN EMERGENCY PROTECTIVE SERVICES HEARING; PROVIDING
  APPROPRIATIONS; AMENDING SECTIONS 41-3-301, 41-3-306, AND 41-3-307, MCA; REPEALING
  SECTION 8, CHAPTER 529, LAWS OF 2021; AND PROVIDING EFFECTIVE DATES.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          Section 1. Section 41-3-301, MCA, is amended to read:
          "41-3-301. (Temporary) Emergency protective service. (1) (a) Any child protection specialist of the
  department, a peace officer, or the county attorney who has reason to believe any child is in immediate or
  apparent danger of harm may immediately remove the child and place the child in a protective facility. After
  ensuring that the child is safe, the department may make a request for further assistance from the law
  enf orcement agency or take appropriate legal action.
          (b)       The person or agency placing the child shall notify the parents, parent, guardian, or other
  person having physical or legal custody of the child of the placement at the time the placement is made or as
  soon after placement as possible. Notification under this subsection (1)(b) must:
          (a)(i)    include the reason for removal;
          (b)(ii)           include information regarding the option for an emergency protective services hearing
  within 5 days under 41-3-306, the required show cause hearing within 20 days, and the purpose of the
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68th Legislature                                                                                                       HB 16.1
  hearings;
          (c)(iii)           provide contact information for the child protection specialist, the child protection
  specialist's supervisor, and the office of state public defender; and
          (d)(iv)            advise the parents, parent, guardian, or other person having physical or legal custody
  of the child that the parents, parent, guardian, or other person:
          (i)(A)     has the right to receive a copy of the affidavit as provided in subsection (6);
          (ii)(B)    has the right to attend and participate in an emergency protective services hearing, if one is
  requested, and the show cause hearing, including providing statements to the judge;
          (iii)(C) may have a support person present during any in-person meeting with the child protection
  specialist concerning emergency protective services, including the emergency protective services hearing
  provided for in 41-3-306; and
          (iv)(D)            may request that the child be placed in a kinship foster home as defined in 52-2-602.
          (c)        A copy of the notification required under subsection (1)(b) must be provided within 24 hours to
  the of fice of state public defender.
          (2)        If a child protection specialist, a peace officer, or the county attorney determines in an
  investigation of abuse or neglect of a child that the child is in danger because of the occurrence of partner or
  f amily member assault, as provided for in 45-5-206, or strangulation of a partner or family member, as provided
  f or in 45-5-215, against an adult member of the household or that the child needs protection as a result of the
  occurrence of partner or family member assault or strangulation of a partner or family member against an adult
  member of the household, the department shall take appropriate steps for the protection of the child, which may
  include:
          (a)        making reasonable efforts to protect the child and prevent the removal of the child from the
  parent or guardian who is a victim of alleged partner or family member assault or strangulation of a partner or
  f amily member;
          (b)        making reasonable efforts to remove the person who allegedly committed the partner or family
  member assault or strangulation of a partner or family member from the child's residence if it is determined that
  the child or another family or household member is in danger of partner or family member assault or
  strangulation of a partner or f amily member; and
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           (c)     providing services to help protect the child from being placed with or having unsupervised
  visitation with the person alleged to have committed partner or family member assault or strangulation of a
  partner or f amily member until the department determines that the alleged offender has met conditions
  considered necessary to protect the safety of the child.
           (3)     If the department determines that an adult member of the household is the victim of partner or
  f amily member assault or strangulation of a partner or f amily member, the department shall provide the adult
  victim with a referral to a domestic violence program.
           (4)     A child who has been removed from the child's home or any other place for the child's
  protection or care may not be placed in a jail.
           (5)     The department may locate and contact extended family members upon placement of a child in
  out-of-home care. The department may share information with extended family members for placement and
  case planning purposes.
           (6)     If a child is removed from the child's home by the department, a child protection specialist shall
  submit an affidavit regarding the circumstances of the emergency removal to the county attorney and provide a
  copy of the affidavit to the office of state public defender and, if possible, the parents or guardian, if possible,
  within 2 working days of the emergency removal. An abuse and neglect petition must be filed within 5 working
  days, excluding weekends and holidays, of the emergency removal of a child unless arrangements acceptable
  to the agency for the care of the child have been made by the parents or a written prevention plan has been
  entered into pursuant to 41-3-302.
           (7)     Except as provided in the federal Indian Child Welfare Act, if applicable, a show cause hearing
  must be held within 20 days of the filing of the petition unless otherwise stipulated by the parties pursuant to 41-
  3-434.
           (8)     If the department determines that a petition for immediate protection and emergency protective
  services must be filed to protect the safety of the child, the child protection specialist shall interview the parents
  of the child to whom the petition pertains, if the parents are reasonably available, before the petition may be
  f iled. The district court may immediately issue an order for immediate protection of the child.
           (9)     The department shall make the necessary arrangements for the child's well-being as are
  required prior to the court hearing. (Terminates June 30, 2023--sec. 8, Ch. 529, L. 2021.)
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68th Legislature                                                                                                       HB 16.1
          41-3-301. (Effective July 1, 2023) Emergency protective service. (1) (a) Any child protection
  specialist of the department, a peace officer, or the county attorney who has reason to believe any c hild is in
  immediate or apparent danger of harm may immediately remove the child and place the child in a protective
  f acility. After ensuring that the child is safe, the department may make a request for further assistance from the
  law enf orcement agency or take appropriate legal action.
          (b)        The person or agency placing the child shall notify the parents, parent, guardian, or other
  person having physical or legal custody of the child of the placement at the time the placement is made or as
  soon after placement as possible. Notification under this subsection (1)(b) must:
          (a)(i)     include the reason for removal;
          (b)(ii)            include information regarding the emergency protective services and show cause
  hearings and the purpose of the hearings; and
          (c)(iii)           advise the parents, parent, guardian, or other person having physical or legal custody
  of the child that the parents, parent, guardian, or other person may have a support person present during any
  in-person meeting with the child protection specialist concerning emergency protective services, including the
  emergency protective services hearing provided for in 41-3-306.
          (c)        A copy of the notification required under subsection (1)(b) must be provided within 24 hours to
  the of fice of state public defender.
          (2)        If a child protection specialist, a peace officer, or the county attorney determines in an
  investigation of abuse or neglect of a child that the child is in danger because of the occurrence of partner or
  f amily member assault, as provided for in 45-5-206, or strangulation of a partner or family member, as provided
  f or in 45-5-215, against an adult member of the household or that the child needs protection as a result of the
  occurrence of partner or family member assault or strangulation of a p artner or family member against an adult
  member of the household, the department shall take appropriate steps for the protection of the child, which may
  include:
          (a)        making reasonable efforts to protect the child and prevent the removal of the child from t he
  parent or guardian who is a victim of alleged partner or family member assault or strangulation of a partner or
  f amily member;
          (b)        making reasonable efforts to remove the person who allegedly committed the partner or family
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68th Legislature                                                                                                     HB 16.1
  member assault or strangulation of a partner or family member from the child's residence if it is determined that
  the child or another family or household member is in danger of partner or family member assault or
  strangulation of a partner or f amily member; and
           (c)     providing services to help protect the child from being placed with or having unsupervised
  visitation with the person alleged to have committed partner or family member assault or strangulation of a
  partner or f amily member until the department determines that the alleged offender has met conditions
  considered necessary to protect the safety of the child.
           (3)     If the department determines that an adult member of the household is the victim of partner or
  f amily member assault or strangulation of a partner or f amily member, the department shall provide the adult
  victim with a referral to a domestic violence program.
           (4)     A child who has been removed from the child's home or any other place for the child's
  protection or care may not be placed in a jail.
           (5)     The department may locate and contact extended family members upon placement of a child in
  out-of-home care. The department may share information with extended family members for placement and
  case planning purposes.
           (6)     If a child is removed from the child's home by the department, a child protection specialist shall
  submit an affidavit regarding the circumstances of the emergency removal to the county attorney and provide a
  copy of the affidavit to the office of state public defender and, if possible, the parents or guardian, if possible,
  within 2 working days of the emergency removal. An abuse and neglect petition must be filed in accordance
  with 41-3-422 within 5 working days, excluding weekends and holidays, of the emergency removal of a child
  unless arrangements acceptable to the agency for the care of the child have been made by the parents or a
  written prevention plan has been entered into pursuant to 41-3-302.
           (7)     Except as provided in the federal Indian Child Welfare Act, if applicable, a show cause hearing
  must be held within 20 days of the filing of the petition unless otherwise stipulated by the parties pursuant to 41-
  3-434.
           (8)     If the department determines that a petition for immediate protection and emergency protective
  services must be filed to protect the safety of the child, the child protection specialist shall interview the parents
  of the child to whom the petition pertains, if the parents are reasonably available, before the petition may be
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  f iled. The district court may immediately issue an order for immediate protection of the child.
          (9)     The department shall make the necessary arrangements for the child's well-being as are
  required prior to the court hearing."
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          Section 2. Section 41-3-306, MCA, is amended to read:
          "41-3-306. (Temporary) Emergency protective services hearing on request -- exceptions
  exception. (1) (a) If requested by the parents, parent, guardian, or other person having physical or legal
  custody of a child removed from the home pursuant to 41-3-301, a district court shall hold an emergency
  protective services hearing within 5 business days of the child's removal to determine whether to continue the
  removal beyond 5 business days.
          (b)     The department shall provide notification of the option for the hearing as required under 41-3-
  301.
          (c)     A hearing is not required if the child is released prior to the time of the requested hearing.
          (2)     The hearing may be held in person, by videoconference, or, if no other means are available, by
  telephone.
          (3)     The child and the child's parents, parent, guardian, or other person having physical or legal
  custody of the child must be represented by counsel at the hearing.
          (4)     If the court determines that continued out-of-home placement is needed, the court shall:
          (a)     establish guidelines for visitation by the parents, parent, guardian, or other person having
  physical or legal custody of the child pending the show cause hearing; and
          (b)     review the availability of options for a kinship placement and make recommendations if
  appropriate.
          (5)     The court may direct the department to develop and implement a treatment plan before the
  show cause hearing if the parents, parent, guardian, or other person having physical or legal custody of the
  child stipulates to a condition subject to a treatment plan and agrees to immediately comply with the treatment
  plan if a plan is developed.
          (6)     If the court determines continued removal is not appropriate, the child must be immediately
  returned to the parents, parent, guardian, or other person having physical or legal custody of the child.
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          (7)      This section does not apply:
          (a)    in judicial districts that are holding voluntary prehearing conferences pursuant to 41-3-307; or
          (b) to cases involving an Indian child who is subject to the Indian Child Welfare Act .
          (8)      The emergency protective services hearing is an emergency proceeding for the purposes of
  the Indian Child Welfare Act and is not subject to the notice requirements of that act. (Terminates June 30,
  2023--sec. 8, Ch. 529, L. 2021.)
          41-3-306. (Effective July 1, 2023) Emergency protective services hearing -- exception. (1) (a) A
  district court shall hold a hearing within 5 business days 72 hours of a child's removal from the home pursuant
  to 41-3-301 to determine whether there is probable cause to continue the removal beyond 5 business days.
          (b)      The department shall provide notification of the hearing as required under 41-3-301.
          (c)      A hearing is not required if the child is released prior to the time of the required hearing.
          (2)      The hearing may be held in person, by videoconference, or, if no other means are available, by
  telephone.
          (3)      The child and the child's parents, parent, guardian, or other person having physical or legal
  custody of the child must be represented by counsel at the hearing.