Bill Summary – FastDemocracy

67th Legislature                                                                                                      HB 57.1
                                                     HOUSE BILL NO. 57
                                                  INTRODUCED BY D. LENZ
                    BY REQUEST OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES
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   A BILL FOR AN ACT ENTITLED: “AN ACT REQUIRING A REVIEW HEARING WITHIN 60 DAYS TO
   DETERMINE THE NECESSITY OF THERAPEUTIC PLACEMENTS IN CHILD ABUSE AND NEGLECT
   PROCEEDINGS; PROVIDING DEFINITIONS; AMENDING SECTION 41-3-102, MCA; AND PROVIDING AN
   EFFECTIVE DATE.”
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   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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              NEW SECTION. Section 1. Review of necessity of nonyouth foster home placement. (1) Within
   60 days of placement of a child in a therapeutic group home, the court shall:
              (a)    conduct a hearing to:
              (i) review the therapeutic needs assessment of the child;
              (ii) consider whether the needs of the child can be met through placement in a youth foster home;
              (iii) consider whether placement of the child in a therapeutic group home provides the most effective
   and appropriate level of care for the child in the least restrictive environment; and
              (iv) consider whether placement of the child in a therapeutic group home is consistent with the short-
   term and long-term goals for the child as specified in the child's permanency plan; and
              (b)    issue a written order stating the reasons for the court's decision to approve or disapprove the
   continued placement of the child in a therapeutic group home. The order must be included in and made part of
   the child's case plan.
              (2)    If the child remains placed in a therapeutic group home, the following evidence must be submitted
   at each status review or permanency hearing held concerning the child:
              (a)    the ongoing assessment of the strengths and needs of the child that continues to support the
   determination that the needs of the child cannot be met through placement in a youth foster home;
              (b)    that the child's placement in a therapeutic group home provides the most effective and appropriate
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   level of care for the child in the least restrictive environment;
              (c)   that the placement is consistent with the short-term and long-term goals for the child as specified
   in the child's permanency plan;
              (d)   documentation of the specific treatment or service needs that will be met for the child in the
   placement and the length of time the child is expected to need the treatment or services; and
              (e)   documentation of the efforts made by the department to prepare the child to return home, to be
   placed with a fit and willing relative, legal guardian, or adoptive parent, or to be placed in a youth foster home.
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              Section 2. 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.
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67th Legislature                                                                                                      HB 57.1
              (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
   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
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67th Legislature                                                                                                       HB 57.1
   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)   "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.
              (9)   "Department" means the department of public health and human services provided for in 2-15-
   2201.
              (10) "Family group decisionmaking meeting" means a meeting that involves family members in either
   developing treatment plans or making placement decisions, or both.
              (11) "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.
              (12) "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.
              (13) "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.
              (14) "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.
              (15) "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.
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67th Legislature                                                                                                         HB 57.1
              (16) "Parent" means a biological or adoptive parent or stepparent.
              (17) "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.
              (18) "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.
              (19) "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.
              (20) "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.
              (21) (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
   abuse or neglect;
              (ii) commits or allows sexual abuse or exploitation of the child;
              (iii) induces or attempts to induce a child to give untrue testimony that the child or another child was
   abused or neglected by a parent or other person responsible for the child's welfare;
              (iv) causes malnutrition or a failure to thrive or otherwise fails to supply the child with adequate food or
   fails to supply clothing, shelter, education, or adequate health care, though financially able to do so or offered
   financial or other reasonable means to do so;
              (v)   exposes or allows the child to be exposed to an unreasonable risk to the child's health or welfare
   by failing to intervene or eliminate the risk; or
              (vi) abandons the child.
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              (b)   The term does not include a youth not receiving supervision solely because of parental inability to
   control the youth's behavior.
              (22) (a) "Protective services" means services provided by the department:
              (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, voluntary
   protective services provided pursuant to 41-3-302, and court-ordered protective services provided pursuant to
   parts 4 and 6 of this chapter.
              (23) (a) "Psychological abuse or neglect" means severe maltreatment through acts or omissions that
   are injurious to the child's emotional, intellectual, or psychological capacity to function, including the
   commission of acts of violence against another person residing in the child's home.
              (b)   The term may not be construed to hold a victim responsible for failing to prevent the crime against
   the victim.
              (24) "Qualified expert witness" as used in cases involving an Indian child in proceedings subject to the
   federal Indian Child Welfare Act 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 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.
              (25) "Qualified individual" means a trained professional or licensed clinician who is not an employee of
   the department and who is not connected to or affiliated with any placement setting in which children are
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   placed.
              (25)(26) "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.
              (26)(27) "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.
              (27)(28) "Safety and risk assessment" means an evaluation by a social worker 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.
              (28)(29) (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.
              (29)(30) "Sexual exploitation" means:
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