Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                                 SB 328.1
                                                    SENATE BILL NO. 328
                                                 INTRODUCED BY D. LENZ
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  A BILL FOR AN ACT ENTITLED: “AN ACT REVISING CHILD ABUSE AND NEGLECT LAWS; REVISING THE
  DEFINITION OF "REASONABLE EFFORTS"; DEFINING "FICTIVE KIN"; ESTABLISHING PLACEMENT
  PREFERENCES; AMENDING SECTIONS 41-3-101, 41-3-423, 41-3-438, 41-3-440, 41-3-444, AND 41-3-445,
  MCA; AND REPEALING SECTION 41-3-439, MCA.”
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           WHEREAS, the federal Indian Child Welfare Act requires active efforts that are affirmative, active, and
  thorough and timely efforts that are tailored, in a manner consistent with prevailing social and cultural
  conditions, to each case to maintain or reunite an Indian child with the child's family; and
           WHEREAS, the federal Indian Child Welfare Act outlines placement preferences for foster care,
  preadoptive, or adoptive placements of Indian children, prioritizing placement with members of a child's
  extended family; and
           WHEREAS, the Legislature desires to incorporate the federal Indian Child Welfare Act's requirements
  regarding active efforts and placement preferences into Montana's existing child abuse and neglect laws.
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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           NEW SECTION. Section 1.           Placement preferences. (1) The placement preferences described in
  this section apply in any foster care, preadoptive, or adoptive placement of a child unless there is a
  determination under [section 2] that good cause exists to not follow the placement preferences or unless the
  placement is governed by the federal Indian Child Welfare Act.
           (2)         (a) In any adoptive placement of a child, preference must be given in descending order to
  placement of the child with:
           (i)         a member of the child's extended family, including fictive kin;
           (ii)        a member of the child's community with ethnic, cultural, and religious heritage similar to the
  child's family; or
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68th Legislature 2023                                                                                              SB 328.1
          (iii)    a family with ethnic, cultural, and religious heritage similar to the child's family.
          (b)      When appropriate, the placement preference of the child or the child's parent or legal guardian
  must be considered.
          (3)      Except as provided in 41-3-301(1), in any foster care or preadoptive placement of a child:
          (a)      the child must be placed in the least restrictive setting that:
          (i)      most approximates a family, taking into consideration sibling attachment;
          (ii)     allows the child's special needs, if any, to be met; and
          (iii)    is in reasonable proximity to the child's home, extended family, or siblings;
          (b)      preference must be given in descending order to placement of the child with:
          (i)      a member of the child's extended family, including fictive kin;
          (ii)     a licensed foster home located in the child's community with ethnic, cultural, and religious
  heritage similar to the child's family;
          (iii)    a licensed foster home with ethnic, cultural, and religious heritage similar to the child's family;
  or
          (iv)     an institution for children approved by the department that has a program suitable to meet the
  child's needs; and
          (c)      the preference of the child or the child's parent or legal guardian must be considered.
          (4)      For the purposes of this section, "fictive kin" means a person to whom the child and the child's
  parent and family ascribe a family relationship and with whom the child has had a significant emotional tie that
  existed prior to the department's involvement with the child and the child's family.
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          NEW SECTION. Section 2.           Exemption from placement preferences. (1) Good cause exists to not
  follow the placement preferences described in [section 1] if one or more of the following circumstances is
  present:
          (a)      a child's parent or legal guardian attests that the parent or legal guardian has reviewed the
  placement preferences and requests a placement that does not follow the order of preference;
          (b)      a child who is of sufficient age and capacity to understand the decision requests a placement
  that does not follow the order of preference;
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68th Legislature 2023                                                                                              SB 328.1
          (c)      a sibling attachment exists that may be maintained only through a particular placement;
          (d)      the extraordinary physical, mental, or emotional needs of the child, such as specialized
  treatment services that may be unavailable in the community where families who meet the placement
  preferences live, require a particular placement; or
          (e)      a suitable placement meeting the placement preferences is not available after a diligent search
  was conducted. The determination that a suitable placement is not available must conform to the prevailing
  social and cultural standards of the community in which the child's parent or legal guardian or extended family
  resides or to which the child's parent or legal guardian or extended family members maintain social and cultural
  ties.
          (2)      Good cause does not exist to depart from the preferences described in [section 1] based on the
  socioeconomic status of any placement relative to another placement.
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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
  harm;
          (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
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68th Legislature 2023                                                                                              SB 328.1
  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 in accordance with [sections 1 and 2]. 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)      In implementing the policy of this section, the child's health and safety are of paramount
  concern."
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          Section 4. Section 41-3-423, MCA, is amended to read:
          "41-3-423.    Reasonable efforts required to prevent removal of child or to return -- exemption --
  findings -- permanency plan. (1) (a) The department shall make reasonable efforts to prevent the necessity of
  removal of a child from the child's home and to reunify families that have been separated by the state.
          (b)      (i) For the purposes of this subsection (1), the term "reasonable efforts" means the department
  shall in good faith develop and implement voluntary services agreements and treatment plans that are designed
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68th Legislature 2023                                                                                               SB 328.1
  to preserve the parent-child relationship and the family unit and shall in good faith assist parents in completing
  voluntary services agreements and treatment plans:
          (i)        conduct a comprehensive assessment of the circumstances of the family, with a focus on safe
  reunification as the most desirable goal. The assessment must be provided to the parents and to counsel for
  the parents.
          (ii)       identify appropriate services and help the parents overcome barriers, including actively
  assisting the parents in obtaining appropriate services;
          (iii)      with parental consent, identify and invite the extended family to participate in providing support
  and services to the family and to participate in family team meetings, permanency planning, and resolution of
  placement issues;
          (iv)       conduct or cause to be conducted a diligent search for the child's extended family members
  and contact and consult with extended family members to provide family structure and support for the child and
  the parents;
          (v)        offer and employ all available and culturally appropriate family preservation strategies and
  facilitate the use of remedial and rehabilitative services;
          (vi)       take steps to keep siblings together whenever possible;
          (vii)      support regular visits with parents in the most natural setting possible, as well as trial home
  visits with the child during any period of removal, consistent with the need to ensure the health, safety, and
  welfare of the child;
          (viii)     identify community resources, including housing, financial, transportation, mental health,
  substance abuse, and peer support services, and actively assist the parents or, when appropriate, the child's
  family in utilizing and accessing the resources;
          (ix)       monitor progress and participation in services; and
          (x)        consider alternative ways to address the needs of the parents and, when appropriate, the
  family if the optimum services do not exist or are not available.
          (ii) The term includes but is not limited to:
          (A)      written prevention plans;
          (B)      development of individual written case plans specifying state efforts to preserve or reunify
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68th Legislature 2023                                                                                              SB 328.1
  families;
          (C)   placement in the least disruptive setting possible with priority given to family placement as
  provided in 41-3-439;
          (D)   provision of services pursuant to a case plan that is designed to address the parent's treatment
  and other needs precluding the parent from safely parenting, including but not limited to individual and family
  therapy, parent education, substance abuse treatment, and trauma-related services; and
          (E)   periodic review of each case to ensure timely progress toward reunification or permanent
  placement.
          (c)      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.
          (2)      Except in a proceeding subject to the federal Indian Child Welfare Act, the department may, at
  any time during an abuse and neglect proceeding, make a request for a determination that preservation or
  reunification services need not be provided. If an indigent parent is not already represented by counsel, the
  court shall immediately provide for the appointment or assignment of counsel to represent the indigent parent in
  accordance with the provisions of 41-3-425. A court may make a finding that the department need not make
  reasonable efforts to provide preservation or reunification services 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:
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68th Legislature 2023                                                                                              SB 328.1
          (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; or
          (ii)     recorded on the child's birth certificate as the child's father.
          (4)      A judicial finding that preservation or reunification services are not necessary under this section
  must be supported by clear and convincing evidence.
          (5)      If the court finds that preservation or reunification services are not necessary pursuant to
  subsection (2) or (3), a permanency hearing must be held within 30 days of that determination and reasonable
  efforts, including consideration of both in-state and out-of-state permanent placement options for the child, 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.
          (6)      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