Bill Summary – FastDemocracy

67th Legislature                                                                                                  SB 331.1
                                                  SENATE BILL NO. 331
                                             INTRODUCED BY T. MANZELLA
  3
   A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS REGARDING THE PARENTAL
   CARE, CUSTODY, AND CONTROL OF CHILDREN; REQUIRING GOVERNMENT EMPLOYEES TO NOTIFY
   PARENTS WHEN A CRIME HAS BEEN COMMITTED AGAINST THEIR CHILD; PROVIDING THAT
   GOVERNMENT EMPLOYEES MAY NOT ENCOURAGE OR COERCE CHILDREN TO WITHHOLD
   INFORMATION FROM THEIR PARENTS OR TAKE OTHER ACTIONS IN BAD FAITH; REVISING CHILD
   ABUSE NEGLECT LAWS REGARDING INFORMATION CONTAINED IN AFFIDAVITS SUBMITTED BY THE
   DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES; REVISING CHILD ABUSE AND NEGLECT
   LAWS TO PROVIDE THAT PARENTS MAY HAVE SUPPORT PERSONS PRESENT AT HEARINGS;
   REVISING CHILD ABUSE AND NEGLECT LAWS TO REQUIRE THE CONSIDERATION OF FAMILY
   VALUES WHEN PLACING A CHILD; AMENDING SECTIONS 41-3-202, 41-3-422, 41-3-427, AND 41-3-440,
   MCA; AND PROVIDING AN APPLICABILITY DATE.”
 15
   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
 17
              NEW SECTION. Section 1.        Right to be notified of crime committed against child. (1) Except as
   provided in subsection (2), an employee, as defined in 2-9-101, shall promptly notify a minor's parent, guardian,
   or custodian if the employee suspects that a criminal offense has been committed against the minor, unless the
   incident has first been reported to law enforcement or the department of public health and human services and
   notification of the parent, guardian, or custodian would impede an investigation by law enforcement or by child
   protective services.
              (2)   An employee of a school district is not required to report manageable conflicts between students
   at school, such as fighting or aggressive play, that are routinely addressed as student disciplinary matters by
   the school district.
 27
              NEW SECTION. Section 2.        Withholding information from parents prohibited. An employee, as
                                                                 -1-                     Authorized Print Version – SB 331
67th Legislature                                                                                                         SB 331.1
   defined in 2-9-101, other than a law enforcement officer, may not encourage or coerce a minor:
              (1)   to withhold information from the minor's parent, guardian, or custodian; or
              (2)   to act in bad faith or with a malicious purpose.
  4
              Section 3. Section 41-3-202, MCA, is amended to read:
              "41-3-202.    Action on reporting. (1) (a) Upon receipt of a report that a child is or has been abused or
   neglected, the department shall promptly assess the information contained in the report and make a
   determination regarding the level of response required and the timeframe within which action must be initiated.
              (b)   (i) Except as provided in subsection (1)(b)(ii), upon receipt of a report that includes an allegation
   of sexual abuse or sexual exploitation or if the department determines during any investigation that the
   circumstances surrounding an allegation of child abuse or neglect include an allegation of sexual abuse or
   sexual exploitation, the department shall immediately report the allegation to the county attorney of the county
   in which the acts that are the subject of the report occurred.
              (ii) If a victim of sexual abuse or sexual exploitation has attained the age of 14 and has sought services
   from a contractor as described in 41-3-201(2)(j) that provides confidential services to victims of sexual assault,
   conditioned upon an understanding that the criminal conduct will not be reported by the department to the
   county attorney in the jurisdiction in which the alleged crime occurred, the department may not report pursuant
   to 41-3-205(5)(d) and subsection (1)(b)(i) of this section.
              (c)   If the department determines that an investigation and a safety and risk assessment are required,
   a social worker shall promptly conduct a thorough investigation into the circumstances surrounding the
   allegations of abuse or neglect of the child and perform a safety and risk assessment to determine whether the
   living arrangement presents an unsafe environment for the child. The safety and risk assessment may include
   an investigation at the home of the child involved, the child's school or day-care facility, or any other place
   where the child is present and into all other nonfinancial matters that in the discretion of the investigator are
   relevant to the safety and risk assessment. In conducting a safety and risk assessment under this section, a
   social worker may not:
              (i) inquire into the financial status of the child's family or of any other person responsible for the child's
   care, except as necessary to ascertain eligibility for state or federal assistance programs or to comply with the
                                                                    -2-                       Authorized Print Version – SB 331
67th Legislature                                                                                                     SB 331.1
   provisions of 41-3-446; or
              (ii) interview the child about the child's home environment unless there is reasonable cause to suspect
   that the child is abused or neglected.
              (2)   An initial investigation of alleged abuse or neglect may be conducted when an anonymous report
   is received. However, if the initial investigation does not within 48 hours result in the development of
   independent, corroborative, and attributable information indicating that there exists a current risk of physical or
   psychological harm to the child, a child may not be removed from the living arrangement. If independent,
   corroborative, and attributable information indicating an ongoing risk results from the initial investigation, the
   department shall then conduct a safety and risk assessment.
              (3)   The social worker is responsible for conducting the safety and risk assessment. If the child is
   treated at a medical facility, If warranted, the social worker, county attorney, or peace officer, consistent with
   reasonable medical practice, has the right of access to the child for interviews, photographs, and securing
   physical evidence obtained by a medical facility and has the right of access to relevant hospital and medical
   records pertaining to the child. If an interview of the child is considered necessary, the social worker, county
   attorney, or peace officer may conduct an interview of the child. The interview may must be conducted in the
   presence of the parent or guardian or an employee of the school or day-care facility attended by the child and
   must be audiotaped or videotaped.
              (4)   Subject to 41-3-205(3), if the child's interview is audiotaped or videotaped, an unedited audiotape
   or videotape with audio track of the child's interview must be made available, upon request, for unencumbered
   review by no later than 24 hours prior to any hearing conducted under this chapter to the following:
              (a)   the family parent, guardian, or custodian of the child and the parent's, guardian's, or custodian's
   attorney;
              (b)   the child's guardian ad litem and attorney; and
              (c)   the court.
              (5)   (a) If from the safety and risk assessment the department has reasonable cause to suspect that
   the child is suffering abuse or neglect, the department may provide emergency protective services to the child,
   pursuant to 41-3-301, or voluntary protective services pursuant to 41-3-302, and may provide protective
   services to any other child under the same care. The department shall:
                                                                   -3-                     Authorized Print Version – SB 331
67th Legislature                                                                                                        SB 331.1
              (i)   after interviewing the parent or guardian, if reasonably available, document the determinations of
   the safety and risk assessment; and
              (ii) notify the child's family of the determinations of the safety and risk assessment, unless the
   notification can reasonably be expected to result in harm to the child or other person.
              (b)   Except as provided in subsection (5)(c), the department shall destroy all safety and risk
   assessment determinations and associated records, except for medical records, within 30 days after the end of
   the 3-year period starting from the date of completion of the safety and risk assessment.
              (c)   Safety and risk assessment determinations and associated records may be maintained for a
   reasonable time as defined by department rule under the following circumstances:
              (i)   the safety and risk assessment determines that abuse or neglect occurred;
              (ii) there had been a previous or there is a subsequent report and investigation resulting in a safety
   and risk assessment concerning the same person; or
              (iii) an order has been issued by a court of competent jurisdiction adjudicating the child as a youth in
   need of care based on the circumstances surrounding the initial allegations.
              (6)   The investigating social worker, within 60 days of commencing an investigation, shall also furnish
   a written safety and risk assessment to the department and, upon request, to the family. Subject to time periods
   set forth in subsections (5)(b) and (5)(c), the department shall maintain a record system documenting
   investigations and safety and risk assessment determinations. Unless records are required to be destroyed
   under subsections (5)(b) and (5)(c), the department shall retain records relating to the safety and risk
   assessment, including case notes, correspondence, evaluations, videotapes, and interviews, for 25 years.
              (7)   Any person reporting abuse or neglect that involves acts or omissions on the part of a public or
   private residential institution, home, facility, or agency is responsible for ensuring that the report is made to the
   department.
              (8)   The department shall, upon request from any reporter of alleged child abuse or neglect, verify
   whether the report has been received, describe the level of response and timeframe for action that the
   department has assigned to the report, and confirm that it is being acted upon."
 27
              Section 4. Section 41-3-422, MCA, is amended to read:
                                                                   -4-                     Authorized Print Version – SB 331
67th Legislature                                                                                                          SB 331.1
              "41-3-422.    Abuse and neglect petitions -- burden of proof. (1) (a) Proceedings under this chapter
   must be initiated by the filing of a petition. A petition may request the following relief:
              (i)   immediate protection and emergency protective services, as provided in 41-3-427;
              (ii) temporary investigative authority, as provided in 41-3-433;
              (iii) temporary legal custody, as provided in 41-3-442;
              (iv) long-term custody, as provided in 41-3-445;
              (v)   termination of the parent-child legal relationship, as provided in 41-3-607;
              (vi) appointment of a guardian pursuant to 41-3-444;
              (vii) a determination that preservation or reunification services need not be provided; or
              (viii) any combination of the provisions of subsections (1)(a)(i) through (1)(a)(vii) or any other relief that
   may be required for the best interests of the child.
              (b)   The petition may be modified for different relief at any time within the discretion of the court.
              (c)   A petition for temporary legal custody may be the initial petition filed in a case.
              (d)   A petition for the termination of the parent-child legal relationship may be the initial petition filed in
   a case if a request for a determination that preservation or reunification services need not be provided is made
   in the petition.
              (2)   The county attorney, attorney general, or an attorney hired by the county shall file all petitions
   under this chapter. A petition filed by the county attorney, attorney general, or an attorney hired by the county
   must be accompanied by the following:
              (a)   an affidavit by the department alleging that the child appears to have been abused or neglected
   and stating the basis for the petition. Allegations must be supported by competent, material, and relevant
   evidence. For the purposes of this subsection (2)(a), an uncorroborated confession made out of court is not
   sufficient evidence of abuse or neglect.; and
              (b)   a separate notice to the court stating any statutory time deadline for a hearing.
              (3)   Abuse and neglect petitions must be given highest preference by the court in setting hearing
   dates.
              (4)   An abuse and neglect petition is a civil action brought in the name of the state of Montana. The
   Montana Rules of Civil Procedure and the Montana Rules of Evidence apply except as modified in this chapter.
                                                                     -5-                       Authorized Print Version – SB 331
67th Legislature                                                                                                      SB 331.1
   Proceedings under a petition are not a bar to criminal prosecution.
              (5)   (a) Except as provided in subsection (5)(b), the person filing the abuse and neglect petition has
   the burden of presenting evidence required to justify the relief requested and establishing:
              (i)   probable cause for the issuance of an order for immediate protection and emergency protective
   services or an order for temporary investigative authority;
              (ii) a preponderance of the evidence for an order of adjudication or temporary legal custody;
              (iii) a preponderance of the evidence for an order of long-term custody; or
              (iv) clear and convincing evidence for an order terminating the parent-child legal relationship.
              (b)   If a proceeding under this chapter involves an Indian child, as defined in the federal Indian Child
   Welfare Act, 25 U.S.C. 1901, et seq., the standards of proof required for legal relief under the federal Indian
   Child Welfare Act apply.
              (6)   (a) Except as provided in the federal Indian Child Welfare Act, if applicable, the parents or parent,
   guardian, or other person or agency having legal custody of the child named in the petition, if residing in the
   state, must be served personally with a copy of the initial petition and a petition to terminate the parent-child
   legal relationship at least 5 days before the date set for hearing. If the person or agency cannot be served
   personally, the person or agency may be served by publication as provided in 41-3-428 and 41-3-429.
              (b)   Copies of all other petitions must be served upon the person or the person's attorney of record by
   certified mail, by personal service, or by publication as provided in 41-3-428 and 41-3-429. If service is by
   certified mail, the department must receive a return receipt signed by the person to whom the notice was mailed
   for the service to be effective. Service of the notice is considered to be effective if, in the absence of a return
   receipt, the person to whom the notice was mailed appears at the hearing.
              (7)   If personal service cannot be made upon the parents or parent, guardian, or other person or
   agency having legal custody, the court shall immediately provide for the appointment or assignment of an
   attorney as provided for in 41-3-425 to represent the unavailable party when, in the opinion of the court, the
   interests of justice require. If personal service cannot be made upon a putative father, the court may not provide
   for the appointment or assignment of counsel as provided for in 41-3-425 to represent the father unless, in the
   opinion of the court, the interests of justice require counsel to be appointed or assigned.
              (8)   If a parent of the child is a minor, notice must be given to the minor parent's parents or guardian,
                                                                   -6-                     Authorized Print Version – SB 331
67th Legislature                                                                                                        SB 331.1
   and if there is no guardian, the court shall appoint one.
              (9)   (a) Any person interested in any cause under this chapter has the right to appear. Any foster
   parent, preadoptive parent, or relative caring for the child must be given legal notice by the attorney filing the
   petition of all judicial hearings for the child and has the right to be heard. The right to appear or to be heard
   does not make that person a party to the action. Any foster parent, preadoptive parent, or relative caring for the
   child must be given notice of all reviews by the reviewing body.
              (b)   A foster parent, preadoptive parent, or relative of the child who is caring for or a relative of the
   child who has cared fo