Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                            SB 368.1
                                                SENATE BILL NO. 368
                                            INTRODUCED BY J. TREBAS
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  A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO MINORS;
  REQUIRING INTERVIEWS OF A CHILD IN PARENTING PLAN PROCEEDINGS; PROVIDING ADDITIONAL
  RIGHTS FOR CHILDREN IN PARENTING PLAN PROCEEDINGS AND CHILD ABUSE AND NEGLECT
  PROCEEDINGS; REVISING THE DEFINITION OF "BEST INTERESTS OF THE CHILD" IN CHILD ABUSE
  AND NEGLECT PROCEEDINGS; PROVIDING AN EXCEPTION AND ADDITIONAL PENALTIES IN
  PARENTING INTERFERENCE CASES; AND AMENDING SECTIONS 40-4-205, 40-4-212, 40-4-214, 40-4-
  227, 41-3-102, 41-3-437, 41-3-440, AND 45-5-634, MCA.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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             Section 1. Section 40-4-205, MCA, is amended to read:
             "40-4-205.   Guardian ad litem or legal representative. (1) The court may appoint a guardian ad
  litem or legal representative to represent the best interests of a minor dependent child with respect to the child's
  support, parenting, and parental contact under the standards provided in 40-4-212. The guardian ad litem may
  be an attorney. The county attorney, a deputy county attorney, if any, or the department of public health and
  human services or any of its staff may not be appointed for this purpose. The guardian ad litem cannot serve as
  the child's attorney on the same case.
             (2)    The guardian ad litem or legal representative has the following general duties:
             (a)    to conduct investigations that the guardian ad litem or legal representative considers necessary
  to ascertain the facts related to the child's support, parenting, and parental contact;
             (b)    to interview or observe the child who is the subject of the proceeding;
             (c)    to make written reports to the court concerning the child's support, parenting, and parental
  contact;
             (d)    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 support, parenting, and parental
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68th Legislature 2023                                                                                               SB 368.1
  contact; and
           (e)      to perform other duties as directed by the court.
           (3)      The guardian ad litem or legal representative has access to court, medical, psychological, law
  enforcement, social services, and school records pertaining to the child and the child's siblings and parents or
  caretakers.
           (4)      The court shall enter an order for costs and fees in favor of the child's guardian ad litem or legal
  representative. The order must be made against either or both parents, except that if the responsible party is
  indigent, the costs must be waived.
           (5)      The guardian ad litem or legal representative shall mail the report to counsel and to any party
  not represented by counsel at least 10 days prior to the hearing."
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           Section 2. Section 40-4-212, MCA, is amended to read:
           "40-4-212.    Best interest of child. (1) The court shall determine the parenting plan in accordance with
  the best interest of the child. The court shall consider all relevant parenting factors, which may include but are
  not limited to:
           (a)      the wishes of the child's parent or parents the wishes of the child;
           (b)      the wishes of the child the wishes of the child's parent or parents;
           (c)      the interaction and interrelationship of the child with the child's parent or parents and siblings
  and with any other person who significantly affects the child's best interest;
           (d)      the child's adjustment to home, school, and community;
           (e)      the mental and physical health of all individuals involved;
           (f)      physical abuse or threat of physical abuse by one parent against the other parent or the child;
           (g)      chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent;
           (h)      continuity and stability of care;
           (i)      developmental needs of the child;
           (j)      whether a parent has knowingly failed to pay birth-related costs that the parent is able to pay,
  which is considered to be not in the child's best interests;
           (k)      whether a parent has knowingly failed to financially support a child that the parent is able to
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68th Legislature 2023                                                                                              SB 368.1
  support, which is considered to be not in the child's best interests;
           (l)     whether the child has frequent and continuing contact with both parents, which is considered to
  be in the child's best interests unless the court determines, after a hearing at which evidence is presented and
  considered, that contact with a parent would be detrimental to the child's best interests. In making that
  determination, the court shall consider evidence of physical abuse or threat of physical abuse by one parent
  against the other parent or the child, including but not limited to whether a parent or other person residing in
  that parent's household has been convicted of any of the crimes enumerated in 40-4-219(8)(b).
           (m)     adverse effects on the child resulting from continuous and vexatious parenting plan
  amendment actions.
           (2)     When determining the best interest of the child of a parent in military service, the court shall
  consider all relevant parenting factors provided in subsection (1) and may not determine the best interest of the
  child based only upon the parent's military service.
           (3)     A de facto parenting arrangement, in the absence of a prior parenting decree, does not require
  the child's parent or parents to prove the factors set forth in 40-4-219.
           (4)     The following are rebuttable presumptions and apply unless contrary to the best interest of the
  child:
           (a)     A parenting plan action brought by a parent within 6 months after a child support action against
  that parent is vexatious.
           (b)     A Absent verifiable child abuse arising following issuance of the final parenting plan, a motion
  to amend a final parenting plan pursuant to 40-4-219 is vexatious if a parent seeks to amend a final parenting
  plan without making a good faith effort to comply with the provisions of the parenting plan or with dispute
  resolution provisions of the final parenting plan."
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           Section 3. Section 40-4-214, MCA, is amended to read:
           "40-4-214.   Interviews. (1) The court may shall make every effort to interview the each child in
  chambers to ascertain the child's wishes as to residence and parental contact. The court may shall permit
  counsel for the child, if any, to be present at the interview. The court shall cause a an audio or video record of
  the interview to be made and to be part of the record in the case and to be made available to counsel.
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68th Legislature 2023                                                                                                SB 368.1
          (2)      The court may seek the advice of professional personnel, whether or not employed by the court
  on a regular basis. The advice given must be in writing and made available by the court to counsel upon
  request. Counsel may examine as a witness any professional personnel consulted by the court."
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          Section 4. Section 40-4-227, MCA, is amended to read:
          "40-4-227.    Rights of parents and children -- policy -- findings. (1) It is the policy of the state of
  Montana:
          (a)      to recognize the constitutionally protected rights of parents and the integrity of the family unit;
          (b)      to recognize a child's constitutionally protected rights, including all fundamental rights unless
  those rights are specifically precluded by laws that enhance their protection; and. The state recognizes a child's
  constitutionally protected right to be heard and the right to legal representation, which includes the legal
  obligation to represent the child's wishes if the child is able to express the child's wishes, specifically to
  enhance the protection of children.
          (c)      to allow a child to state the child's opinion as to whom the child feels safe with and wants to
  spend time with in custody matters and proceedings under Title 41, chapter 3;
          (d)      to recognize that a child has a right to refuse a relationship with an unsafe parent;
          (c)(e)   to ensure that the wishes of the child and the best interests of the child as described in 40-4-
  212 are met represented in parenting proceedings and in proceedings under Title 41, chapter 3;
          (f)      to recognize that a child has a right to refuse a relationship with an unsafe sibling or extended
  family member;
          (g)      to recognize that a child has a right to be protected from unsafe foster parents and unsafe
  institutional settings in which they have been placed by the state.
          (2)      The legislature finds:
          (a)      that while it is in the best interests of a child to maintain a relationship with a natural parent, a
  natural parent's inchoate interest in the child requires constitutional protection only when the parent has
  demonstrated a timely commitment to the responsibilities of parenthood; and
          (b)      that a parent's constitutionally protected interest in the parental control of a child should yield to
  the best interests of the child when the parent's conduct is contrary to the child-parent relationship."
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68th Legislature 2023                                                                                                 SB 368.1
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             Section 5. 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
  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
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68th Legislature 2023                                                                                              SB 368.1
  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, including the factors
  listed in 40-4-212, as applicable.
             (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.
             (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.
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68th Legislature 2023                                                                                             SB 368.1
           (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-
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