Bill Summary – FastDemocracy

68th Legislature                                                                                                     HB 37.1
                                                   HOUSE BILL NO. 37
                                             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 CHILD ABUSE AND NEGLECT LAWS;
   REQUIRING A WARRANT TO REMOVE A CHILD FROM THE CHILD'S HOME EXCEPT IN EXIGENT
   CIRCUMSTANCES; REQUIRING THAT A PEACE OFFICER BE PRESENT WHENEVER A CHILD IS
   REMOVED FROM THE HOME; REVISING THE DEFINITIONS OF "CHILD ABUSE OR NEGLECT" AND
   "REASONABLE EFFORTS"; REVISING THE REQUIREMENTS FOR DISCLOSURE OF CHILD ABUSE AND
   NEGLECT RECORDS; REVISING THE TIMEFRAME IN WHICH AN ABUSE AND NEGLECT PETITION
   MUST BE FILED WHEN A CHILD IS REMOVED; REVISING THE TIMEFRAME IN WHICH AN EMERGENCY
   PROTECTIVE SERVICES HEARING MUST BE HELD; REVISING THE REQUIREMENTS FOR DISMISSING
   AN ABUSE AND NEGLECT PETITION; AMENDING SECTIONS 41-3-101, 41-3-102, 41-3-205, 41-3-301, 41-
   3-306, 41-3-423, 41-3-424, 41-3-425, AND 41-3-427, MCA; AND PROVIDING AN EFFECTIVE DATE.”
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              WHEREAS, Montana's child abuse and neglect statutes (Title 41, chapter 3, MCA) provide the
   framework for state interference with the parent-child relationship; and
              WHEREAS, the Legislature intends to amend the provisions of Title 41, chapter 3, MCA, to ensure
   compliance with constitutional requirements.
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              NEW SECTION. Section 1.       Warrant to remove child. (1) A child protection specialist of the
   department, a peace officer, or a county attorney may apply, in writing, by telephone, or electronically, on oath
   or affirmation, to a court identified in subsection (2) for the issuance of a warrant to remove a child and place
   the child in a protective facility if necessary to prevent the child from being abused or neglected.
              (2)    A warrant may be issued in writing, by telephone, or electronically by:
              (a)    a city or municipal court judge or justice of the peace within the judge's geographic jurisdiction;
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   or
              (b)    a district court judge within the state.
              (3)    If the court finds from the application that there is probable cause that removal is necessary to
   prevent the child from being abused or neglected, the court shall issue a warrant to remove the child. The
   warrant must:
              (a)    identify the child to be removed and the person responsible for removing the child;
              (b)    recite the facts on which the conclusion that the child is abused or neglected or is in danger of
   being abused or neglected is based; and
              (c)    provide for the placement of the child, pending an emergency protective services hearing.
              (4)    The provisions of 46-5-222 apply when an application for a warrant is made telephonically or
   electronically or when a warrant is issued telephonically or electronically.
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              NEW SECTION. Section 2.        Procedures for executing warrant to remove child. (1) A warrant
   issued pursuant to [section 1] may be served at any time of the day or night. The warrant must be served within
   10 days from the time of issuance. A warrant not served within 10 days is void and must be returned to the
   issuing court and identified as not served.
              (2)    A warrant issued pursuant to [section 1] must be served by the person specifically named in the
   warrant and by no other person unless the other person is acting in aid of and in the presence of the specifically
   named person.
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              Section 3. 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)    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 the children's care and protection;
              (b)    achieve these purposes in a family environment and preserve the unity and welfare of the
   family whenever possible;
              (c)    ensure that there is no forced removal of a child from the family based solely on an allegation
   of abuse or neglect unless the department has reasonable cause to suspect that the child is at imminent risk of
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   harm without first obtaining a warrant from a court unless the child is likely to experience sexual abuse or
   serious bodily injury in the time that would be required to obtain a warrant;
              (d)   recognize that a child is entitled to assert the child's constitutional rights;
              (e)   ensure that all children have a right to a healthy and safe childhood in a permanent placement;
   and
              (f)   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.
              (2)   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.
              (3)   In implementing this chapter, 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, place the child with the child's noncustodial
   birth parent or with the child's extended family, including adult siblings, grandparents, great-grandparents,
   aunts, and uncles, when placement with the extended family is approved by the department, prior to placing the
   child in an alternative protective or residential facility. Prior to approving a placement, the department shall
   investigate whether anyone living in the home has been convicted of a crime involving serious harm to children.
              (4)   (a) The department shall create a registry for voluntary registration by close relatives of a child
   for purposes of notifying those relatives when a child that is related has been removed from the child's home
   pursuant to this chapter.
              (b)   The registry must contain the names of the child and the child's parents and may contain the
   names of the child's grandparents, aunts, uncles, adult brothers, and adult sisters and must contain the contact
   information for the child and parents and any of the relatives whose names appear in the registry.
              (5)   The department shall consult the registry and notify the relatives on the registry on the first
   working day after placing the child in accordance with 41-3-301.
              (6)   The department may charge a fee commensurate with the cost of operating the registry. The
   fee may be charged only to those persons whose names are voluntarily entered in the registry.
              (7)   The department shall ensure that department training and policies comply with constitutional
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   requirements.
              (7)(8)   In implementing the policy of this section, the child's health and safety are of paramount
   concern."
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              Section 4. Section 41-3-102, MCA, is amended to read:
              "41-3-102.   Definitions. As used in this chapter, the following definitions apply:
              (1)      (a) "Abandon", "abandoned", and "abandonment" mean:
              (i)      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;
              (ii)     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;
              (iii)    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; or
              (iv)     the voluntary surrender, as defined in 40-6-402, by a parent of a newborn who is no more than
   30 days old to an emergency services provider, as defined in 40-6-402.
              (b)      The terms do not include the voluntary surrender of a child to the department solely because of
   parental inability to access publicly funded services.
              (2)      "A person responsible for a child's welfare" means:
              (a)      the child's parent, guardian, or 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.
              (3)      "Abused or neglected" means the state or condition of a child who has suffered child abuse or
   neglect.
              (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
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   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, because of 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.
              (5)     "Best interests of the child" means the physical, mental, and psychological conditions and
   needs of the child and any other factor considered by the court to be relevant to the child.
              (6)     "Child" or "youth" means any person under 18 years of age.
              (7)     (a) "Child abuse or neglect" means:
              (i)     actual physical or psychological harm to a child;
              (ii)    substantial risk of physical or psychological harm to a child; or
              (iii)   abandonment.
              (b)     (i) The term includes:
              (A)     actual physical or psychological harm to a child or substantial risk of physical or psychological
   harm to a child by the acts or omissions of a person responsible for the child's welfare;
              (B)     exposing a child to the criminal distribution of dangerous drugs, as prohibited by 45-9-101, the
   criminal production or manufacture of dangerous drugs, as prohibited by 45-9-110, or the operation of an
   unlawful clandestine laboratory, as prohibited by 45-9-132; or
              (C)     any form of child sex trafficking or human trafficking.
              (ii)    For the purposes of this subsection (7), "dangerous drugs" means the compounds and
   substances described as dangerous drugs in Schedules I through IV in Title 50, chapter 32, part 2.
              (c)     In proceedings under this chapter in which the federal Indian Child Welfare Act is applicable,
   this term has the same meaning as "serious emotional or physical damage to the child" as used in 25 U.S.C.
   1912(f).
              (d)     The term does not include self-defense, defense of others, or action taken to prevent the child
   from self-harm that does not constitute physical or psychological harm to a child. Substance use by a parent or
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   guardian, disorderly living conditions, other factors closely related to economic status, or a child's obesity do not
   alone constitute physical or psychological harm to a child.
              (8)    "Child protection specialist" means an employee of the department who investigates allegations
   of child abuse, neglect, and endangerment and has been certified pursuant to 41-3-127.
              (9)    "Concurrent planning" means to work toward reunification of the child with the family while at
   the same time developing and implementing an alternative permanent plan.
              (10)   "Department" means the department of public health and human services provided for in 2-15-
   2201.
              (11)   "Family engagement meeting" means a meeting that involves family members in either
   developing treatment plans or making placement decisions, or both.
              (12)   "Indian child" means any unmarried person who is under 18 years of age and who is either:
              (a)    a member of an Indian tribe; or
              (b)    eligible for membership in an Indian tribe and is the biological child of a member of an Indian
   tribe.
              (13)   "Indian child's tribe" means:
              (a)    the Indian tribe in which an Indian child is a member or eligible for membership; or
              (b)    in the case of an Indian child who is a member of or eligible for membership in more than one
   Indian tribe, the Indian tribe with which the Indian child has the more significant contacts.
              (14)   "Indian custodian" means any Indian person who has legal custody of an Indian child under
   tribal law or custom or under state law or to whom temporary physical care, custody, and control have been
   transferred by the child's parent.
              (15)   "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of
   Indians recognized by:
              (a)    the state of Montana; or
              (b)    the United States secretary of the interior as being eligible for the services provided to Indians
   or because of the group's status as Indians, including any Alaskan native village as defined in federal law.
              (16)   "Limited emancipation" means a status conferred on a youth by a court in accordance with 41-
   1-503 under which the youth is entitled to exercise some but not all of the rights and responsibilities of a person
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   who is 18 years of age or older.
              (17)    "Parent" means a biological or adoptive parent or stepparent.
              (18)    "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.
              (19)    "Permanent placement" means reunification of the child with the child's parent, adoption,
   placement with a legal guardian, placement with a fit and willing relative, or placement in another planned
   permanent living arrangement until the child reaches 18 years of age.
              (20)    "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, burns,
   bone fractures, extreme pain, permanent or temporary disfigurement, impairment of any bodily organ or
   function, or death.
              (21)    "Physical neglect" means either failure to provide basic necessities, including but not limited to
   appropriate and adequate nutrition, protective shelter from the elements, and appropriate clothing related to
   weather conditions, or failure to provide cleanliness and general supervision, or both, or exposing or allowing
   the child to be exposed to an unreasonable physical or psychological risk to the child.
              (22)    (a) "Physical or psychological harm to a child" means the harm that occurs whenever the
   parent or other person responsible for the child's welfare:
              (i)     inflicts or allows to be inflicted upon the child physical abuse, physical neglect, or psychological
   abus