Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                                LC 3339
                                      _____________ BILL NO. _____________
                   INTRODUCED BY _________________________________________________
                                           (Primary Sponsor)
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  A BILL FOR AN ACT ENTITLED: “AN ACT GENERALLY REVISING LAWS RELATED TO CHILD ABUSE AND
  NEGLECT INVESTIGATIONS; REQUIRING THE USE OF RECORDINGS FOR REMOVALS UNDER
  CERTAIN CIRCUMSTANCES; REQUIRING NOTIFICATION THAT ENTRY INTO A CHILD'S HOME IS NOT
  REQUIRED UNLESS ORDERED BY A COURT; PROVIDING AN APPROPRIATION; AMENDING SECTIONS
  41-3-202, 41-3-205, AND 41-3-424, MCA; AND PROVIDING EFFECTIVE DATES.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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            NEW SECTION. Section 1. Video recording of emergency removals -- retention and release of
  recording -- effect of failure to record. (1) The department shall provide each child protection specialist
  investigating a report of child abuse and neglect with a body camera. Except as provided in subsection (2), a
  child protection specialist shall use the body camera to record any emergency or court-ordered removal of a
  child from the custody of the child's parent, guardian, or other person having physical or legal custody.
            (2)    A child protection specialist is not required to record the removal of a child when a parent,
  guardian, or other person having physical or legal custody has voluntarily brought the child to an office of the
  department.
            (3)    (a) The video recording of a removal must be retained by the department for 2 years from the
  date the investigation into a report of child abuse or neglect is closed. The recording must be made available on
  request to a judge or to a party to an abuse and neglect proceeding conducted pursuant to Title 41, chapter 3,
  part 4.
            (b)    The video recording may be released to a person other than a party to the proceeding if the
  person has petitioned the court to view the recording and the judge determines release of the recording is
  warranted.
            (4)    If a child protection specialist fails to record a removal, the child must be returned to the child's
  parent, guardian, or other person having physical or legal custody.
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          Section 2. 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 when the alleged perpetrator of the sexual abuse or sexual
  exploitation was 12 years of age or older 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 when the alleged perpetrator of the sexual abuse or sexual exploitation was 12 years of age
  or older, 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 child protection specialist 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 child protection specialist may not 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 provisions of 41-3-446.
          (d)      A child protection specialist who does not have a warrant or a court order allowing entry into a
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68th Legislature 2023                                                                                                    LC 3339
  child's home shall notify the child's parent, guardian, or other person having physical or legal custody that the
  person does not have to allow the child protection specialist to enter the home.
          (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 child protection specialist is responsible for conducting the safety and risk assessment. If
  the child is treated at a medical facility, the child protection specialist, 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 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 child protection specialist, county attorney,
  or peace officer may conduct an interview of the child. The interview may be conducted in the presence of the
  parent or guardian or an employee of the school or day-care facility attended by the child.
          (4)      Subject to 41-3-205(3), if the child's interview is audiotaped or videotaped, an unedited
  audiotape or videotape with audio track must be made available, upon request, for unencumbered review by
  the family.
          (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 enter into a written prevention plan, pursuant to 41-3-302, and may provide protective
  services to any other child under the same care. The department shall:
          (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
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68th Legislature 2023                                                                                               LC 3339
  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 child protection specialist, 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."
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          Section 3. Section 41-3-205, MCA, is amended to read:
          "41-3-205. Confidentiality -- disclosure exceptions. (1) The case records of the department and its
  local affiliate, the local office of public assistance, the county attorney, and the court concerning actions taken
  under this chapter and all records concerning reports of child abuse and neglect must be kept confidential
  except as provided by this section. Except as provided in subsections (9) and (10), a person who purposely or
  knowingly permits or encourages the unauthorized dissemination of the contents of case records is guilty of a
  misdemeanor.
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           (2)     Records may be disclosed to a court for in camera inspection if relevant to an issue before it.
  The court may permit public disclosure if it finds disclosure to be necessary for the fair resolution of an issue
  before it.
           (3)     Records, including case notes, correspondence, evaluations, videotapes other than a body
  camera recording made in accordance with [section 1], and interviews, unless otherwise protected by this
  section or unless disclosure of the records is determined to be detrimental to the child or harmful to another
  person who is a subject of information contained in the records, may be disclosed to the following persons or
  entities in this state and any other state or country:
           (a)     a department, agency, or organization, including a federal agency, military enclave, or Indian
  tribal organization, that is legally authorized to receive, inspect, or investigate reports of child abuse or neglect
  and that otherwise meets the disclosure criteria contained in this section;
           (b)     a licensed youth care facility or a licensed child-placing agency that is providing services to the
  family or child who is the subject of a report in the records or to a person authorized by the department to
  receive relevant information for the purpose of determining the best interests of a child with respect to an
  adoptive placement;
           (c)     a health or mental health professional who is treating the family or child who is the subject of a
  report in the records;
           (d)     a parent, grandparent, aunt, uncle, brother, sister, guardian, mandatory reporter provided for in
  41-3-201(2) and (5), or person designated by a parent or guardian of the child who is the subject of a report in
  the records or other person responsible for the child's welfare, without disclosure of the identity of any person
  who reported or provided information on the alleged child abuse or neglect incident contained in the records;
           (e)     a child named in the records who was allegedly abused or neglected or the child's legal
  guardian or legal representative, including the child's guardian ad litem or attorney or a special advocate
  appointed by the court to represent a child in a pending case;
           (f)     the state protection and advocacy program as authorized by 42 U.S.C. 15043(a)(2);
           (g)     approved foster and adoptive parents who are or may be providing care for a child;
           (h)     a person about whom a report has been made and that person's attorney, with respect to the
  relevant records pertaining to that person only and without disclosing the identity of the reporter or any other
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  person whose safety may be endangered;
          (i)      an agency, including a probation or parole agency, that is legally responsible for the
  supervision of an alleged perpetrator of child abuse or neglect;
          (j)      a person, agency, or organization that is engaged in a bona fide research or evaluation project
  and that is authorized by the department to conduct the research or evaluation;
          (k)      the members of an interdisciplinary child protective team authorized under 41-3-108 or of a
  family engagement meeting for the purposes of assessing the needs of the child and family, formulating a
  treatment plan, and monitoring the plan;
          (l)      the coroner or medical examiner when determining the cause of death of a child;
          (m)      a child fatality review team recognized by the department;
          (n)      a department or agency investigating an applicant for a license or registration that is required to
  operate a youth care facility, day-care facility, or child-placing agency;
          (o)      a person or entity who is carrying out background, employment-related, or volunteer-related
  screening of current or prospective employees or volunteers who have or may have unsupervised contact with
  children through employment or volunteer activities. A request for information under this subsection (3)(o) must
  be made in writing. Disclosure under this subsection (3)(o) is limited to information that indicates a risk to
  children posed by the person about whom the information is sought, as determined by the department.
          (p)      the news media, if disclosure is limited to confirmation of factual information regarding how the
  case was handled and if disclosure does not violate the privacy rights of the child or the child's parent or
  guardian, as determined by the department;
          (q)      an employee of the department or other state agency if disclosure of the records is necessary
  for administration of programs designed to benefit the child;
          (r)      an agency of an Indian tribe, a qualified expert witness, or the relatives of an Indian child if
  disclosure of the records is necessary to meet requirements of the federal Indian Child Welfare Act;
          (s)      a juvenile probation officer who is working in an official capacity with the child who is the
  subject of a report in the records;
          (t)      an attorney who is hired by or represents the department if disclosure is necessary for the
  investigation, defense, or prosecution of a case involving child abuse or neglect;
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          (u)      a foster care review committee established under 41-3-115 or, when applicable, a citizen
  review board established under Title 41, chapter 3, part 10;
          (v)      a school employee participating in an interview of a child by a child protection