Bill Summary – FastDemocracy

Unofficial Draft Copy
****                                               As of: 10/14/2024, 09:03:48
69th Legislature 2025                              Drafter: Alexis Sandru, ****                                     LC 0052
                                                    **** BILL NO. ****
                                                 INTRODUCED BY ****
  3
  A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING CHILD ABUSE AND NEGLECT LAWS;
  REVISING DEFINITIONS OF "ABANDON", "ADEQUATE HEALTH CARE", "BEST INTERESTS OF THE
  CHILD", "CHILD ABUSE OR NEGLECT", "PHYSICAL ABUSE", "PHYSICAL NEGLECT", "PSYCHOLOGICAL
  ABUSE OR NEGLECT", AND "WITHHOLDING OF MEDICALLY INDICATED TREATMENT"; RESTRICTING
  CONCURRENT PLANNING; PROVIDING FOR TREATMENT PLAN NULLIFICATION; AND AMENDING
  SECTIONS 41-3-102, 41-3-423, 41-3-434, AND 41-3-443, MCA.”
 10
  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
 12
          Section 1. Section 41-3-102, MCA, is amended to read:
          "41-3-102.    (Temporary) 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;. For the purposes of this subsection (1)(a)(i), the belief that the
  parent does not intend to resume care of the child in the future is not reasonable until all attempts to contact the
  parent have been made.
          (ii)     willfully surrendering physical custody for a period of 6 8 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 90 180 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.
                                                                -1-                                                    LC 52
                                                         Unofficial Draft Copy
****                                                     As of: 10/14/2024, 09:03:48
69th Legislature 2025                                    Drafter: Alexis Sandru, ****                                     LC 0052
             (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
  necessary for the survival of a child recognized by an insurer licensed to provide disability insurance under Title
  33 a licensed health care provider who has seen the child, including the prevention of the withholding of
  medically indicated treatment or medically indicated psychological care permitted or authorized under state law.
  A parent or legal guardian may obtain a second opinion.
             (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; or
             (ii)        substantial risk of physical or psychological harm to a child; or
             (iii)(ii)   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 by a person responsible for the child's welfare;
                                                                     -2-                                                    LC 52
                                                   Unofficial Draft Copy
****                                               As of: 10/14/2024, 09:03:48
69th Legislature 2025                              Drafter: Alexis Sandru, ****                                   LC 0052
          (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 or the Montana
  Indian Child Welfare Act provided for in Title 41, chapter 3, part 13, are 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:
          (i)      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; or
          (ii)     a youth not receiving supervision solely because of parental inability to control the youth's
  behavior.
          (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)     "Decline to prosecute" means a decision not to file criminal charges based on the matter
  reported by the department or investigation by law enforcement for any reason, including but not limited to
  insufficient evidence.
          (11)     "Department" means the department of public health and human services provided for in 2-15-
  2201.
          (12)     "Family engagement meeting" means a meeting that involves family members in either
  developing treatment plans or making placement decisions, or both.
          (13)     "Indian child" has the meaning provided in 41-3-1303.
          (14)     "Indian child's tribe" has the meaning provided in 41-3-1303.
          (15)     "Indian custodian" has the meaning provided in 41-3-1303.
                                                               -3-                                                  LC 52
                                                    Unofficial Draft Copy
****                                               As of: 10/14/2024, 09:03:48
69th Legislature 2025                              Drafter: Alexis Sandru, ****                                     LC 0052
          (16)     "Indian tribe" has the meaning provided in 41-3-1303.
          (17)     "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
  who is 18 years of age or older.
          (18)     "Parent" means a biological or adoptive parent or stepparent.
          (19)     "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.
          (20)     "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.
          (21)     "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.
          (22)     "Physical neglect" means:
          (a)      failure to provide basic necessities, including but not limited to appropriate and adequate
  nutrition, protective shelter from the elements, and appropriate adequate clothing related to weather conditions;
          (b)      failure to provide cleanliness basic hygiene and general supervision as provided by law, or
  both;
          (c)      exposing or allowing the child to be exposed to an unreasonable physical or psychological risk
  to the child actual physical or psychological harm;
          (d)      allowing sexual abuse or exploitation of the child; or
          (e)      causing malnutrition or a failure to thrive.
          (23)     "Physical or psychological harm to a child" means the harm that occurs whenever the parent or
  other person responsible for the child's welfare inflicts or allows to be inflicted on the child physical abuse,
  physical neglect, or psychological abuse or neglect.
          (24)     (a) "Protective services" means services provided by the department:
                                                                -4-                                                       LC 52
                                                     Unofficial Draft Copy
****                                                As of: 10/14/2024, 09:03:48
69th Legislature 2025                               Drafter: Alexis Sandru, ****                                       LC 0052
           (i)      to enable a child alleged to have been abused or neglected to remain safely in the home;
           (ii)     to enable a child alleged to have been abused or neglected who has been removed from the
  home to safely return to the home; or
           (iii)    to achieve permanency for a child adjudicated as a youth in need of care when circumstances
  and the best interests of the child prevent reunification with parents or a return to the home.
           (b)      The term includes emergency protective services provided pursuant to 41-3-301, written
  prevention plans provided pursuant to 41-3-302, and court-ordered protective services provided pursuant to
  parts 4 and 6 of this chapter.
           (25)     (a) "Psychological abuse or neglect" means severe maltreatment, through acts or omissions,
  that is injurious to the child's intellectual or psychological capacity to function and that is identified as
  psychological abuse or neglect by a licensed psychologist, a licensed professional counselor, a licensed clinical
  social worker, a licensed psychiatrist, a licensed pediatrician, or a licensed advanced practice registered nurse
  with a focused practice in psychiatry.
           (b)      The term includes but is not limited to the commission of acts of violence against another
  person residing in the child's home.
           (c)      The term may not be construed to hold a victim responsible for failing to prevent the crime
  against the victim.
           (26)     "Qualified expert witness" as used in cases involving an Indian child in proceedings subject to
  the federal Indian Child Welfare Act or the Montana Indian Child Welfare Act provided for in Title 41, chapter 3,
  part 13, means:
           (a)      a member of the Indian child's tribe who is recognized by the tribal community as
  knowledgeable in tribal customs as they pertain to a family organization and child-rearing practices;
           (b)      a lay expert witness who has substantial experience in the delivery of child and family services
  to Indians and extensive knowledge of prevailing social and cultural standards and child-rearing practices within
  the Indian child's tribe; or
           (c)      a professional person who has substantial education and experience in providing services to
  children and families and who possesses significant knowledge of and experience with Indian culture, family
  structure, and child-rearing practices in general.
                                                                 -5-                                                     LC 52
                                                    Unofficial Draft Copy
****                                                As of: 10/14/2024, 09:03:48
69th Legislature 2025                               Drafter: Alexis Sandru, ****                                    LC 0052
          (27)     "Qualified individual" means a trained professional or licensed clinician who:
          (a)      has expertise in the therapeutic needs assessment used for placement of youth in a
  therapeutic group home;
          (b)      is not an employee of the department; and
          (c)      is not connected to or affiliated with any placement setting in which children are placed.
          (28)     "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.
          (29)     "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.
          (30)     "Safety and risk assessment" means an evaluation by a child protection specialist following an
  initial report of child abuse or neglect to assess the following:
          (a)      the existing threat or threats to the child's safety;
          (b)      the protective capabilities of the parent or guardian;
          (c)      any particular vulnerabilities of the child;
          (d)      any interventions required to protect the child; and
          (e)      the likelihood of future physical or psychological harm to the child.
          (31)     (a) "Sexual abuse" means the commission of sexual assault, sexual intercourse without
  consent, aggravated sexual intercourse without consent, indecent exposure, sexual abuse, ritual abuse of a
  minor, or incest, as described in Title 45, chapter 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.
          (32)     "Sexual exploitation" means:
          (a)      allowing, permitting, or encouraging a child to engage in a prostitution offense, as described in
  45-5-601;
          (b)      allowing, permitting, or encouraging sexual abuse of children as described in 45-5-625; or
          (c)      allowing, permitting, or encouraging sex trafficking as described in 45-5-702, 45-5-705, 45-5-
                                                                 -6-                                                  LC 52
                                                    Unofficial Draft Copy
****                                               As of: 10/14/2024, 09:03:48
69th Legislature 2025                              Drafter: Alexis Sandru, ****                                       LC 0052
  706, or 45-5-711.
          (33)     "Therapeutic needs assessment" means an assessment performed by a qualified individual
  within 30 days of placement of a child in a therapeutic group home that:
          (a)      assesses the strengths and needs of the child using an age-appropriate, evidence-based,
  validated, functional assessment tool;
          (b)      determines whether the needs of the child can be met with family members or through
  placement in a youth foster home or, if not, which appropriate setting would provide the most effective and
  appropriate level of care for the child in the least restrictive environment and be consistent with the short-term
  and long-term goals for the child as specified in the child's permanency plan; and
          (c)      develops a list of child-specific short-term and long-term mental and behavioral h