Definitions.

The definition of child abuse and neglect is contained in 41-3-102,

(7) (a) (b) and (c).

(7) (a). “Child abuse or neglect” means: (i) actual harm to the child’s health or welfare; or (ii) substantial risk of harm to the child’s health or welfare.

(7) (b). The term includes actual harm or substantial risk of harm by the acts or omissions of a person responsible for the child’s welfare.

(7) (c). The term does not include self-defense, defense of others, or action taken to prevent the child from self-harm that does not constitute harm to a child’s health or welfare.

(7)(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 45-9-102. (Effective Oct. 1, 2003)

(15) “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.

(16) “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.”

(17) (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.
     (b) The term does not include a youth not receiving supervision solely because of parental inability to control the youth's behavior.
    

Reporting.

• Reporting requirements are found in 41-3-201 which says: When the professionals and officials listed in subsection (2) know or have reasonable cause to suspect, as a result of information they receive in their professional or official capacity, that a child is abused or neglected, they shall report the matter promptly to the Department of Public Health and Human Services or its local affiliate.

• Subsection (2) lists those professionals and officials required to report, including guardians ad litem. The statute further directs that any other person may make a report if the person knows or has reasonable cause to suspect that a child is abused or neglected. Subsection (5) outlines the content to be included in the report. Any person, official or institution required to report known or suspected child abuse or neglect who fails to do so or prevents another person from reasonably doing so is civilly liable for he damages proximately caused by such failure or prevention and is guilty of a misdemeanor.
• 41-3-207 states that there is a penalty for failing to report.

Protective service responsibility.

• The Department of Public Health and Human Services (DPHHS) is charged with the responsibility to protect children whose health and welfare are or may be adversely affected and further threatened by the conduct of those responsible for their care and protection. The Department is further directed to protect, whenever possible, family unity. (41-3-101 and 41-3-302).

Guardian ad litem.

• The role of the guardian ad litem is provided in 41-3-112. The guardian ad litem is charged with the representation of the child’s best interest and shall perform the following general duties:
  • a. to conduct investigations to ascertain the facts constituting the alleged abuse or neglect;
  • b. to interview or observe the child who is the subject of the proceeding;
  • c. to have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child’s siblings and parents or custodians:
  • d. to make written reports to the court concerning the child’s welfare;
  • e. 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 welfare;
  • f. to perform other duties as directed by the court; and
  • g. if an attorney, to file motions, including but not limited to filing to expedite proceedings or otherwise assert the child’s rights

• The court may, upon the petition of the department or guardian ad litem, enter an order appointing a guardian for a child who has been placed in temporary or permanent custody of the department. (41-3-444).

5. Confidentiality.

• The confidentiality of records pertaining to child abuse or neglect is addressed in 41-3-205. It indicates that the case records of the department (DPHHS) and its local affiliate, the county welfare department, 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 in this section. The statute goes on to identify to whom records may be disclosed and to what degree and under what circumstances. The child’s guardian ad litem is one of those parties who may receive confidential information. The statute also directs that any person who permits or encourages the unauthorized dissemination of the contents of case records is guilty of a misdemeanor. Note: Federal law prohibits information being disseminated in cases of Drug abuse treatment services. A release must be obtained in this case.
• In general the volunteer should keep all records and information confidential. In the cases of requests for information from interested parties, all such inquiries should be re-directed to the program manager or director.

6. Court jurisdiction.

• DPHHS must invoke court jurisdiction when a youth is found to be in immediate danger of harm and is removed from caretaker and placed in a protective facility if the period of placement exceeds 48 hours. (41-3-301 &41-3-427)

7. Child removal.

• A child may be removed only if there is a finding that the child’s health or welfare as defined in 41-3-102 section (11) is adversely affected or threatened by acts or omissions of their parent or other person responsible for their care.

8. Court hearings.

• Following the removal of a child a petition for temporary investigative authority (TIA) must be filed within 2 working days excluding weekends. (41-3-301) Frequently temporary legal custody, emergency protective services, and adjudication of the youth as a youth in need of care, is simultaneously requested in the petition. The petition is presented to the district judge for an order for the immediate protection of the youth. This occurs in an ex parte proceeding and the judge’s decision is based upon the information contained in the petition, the parent’s statement and the social worker’s affidavit. If granted this order will direct the person(s) to be served (usually the parents) to comply immediately with the terms of the order and also set a time for a show cause hearing. The show cause hearing must occur within 20 working days of the issuance of the initial order. (41-3-427 & 432) (2003 Legislature changed from 10 working days.)

• Show Cause Hearing. Must be held within 20 working days of the issuance of the initial order. This hearing provides the parents with the opportunity to offer evidence as to why the conditions of the existing order should be dismissed. The petitioner has the burden of establishing probable cause for the issuance of the order. The court must make a finding as to whether reasonable efforts were made to prevent the child’s removal from the home or to make it possible to safely return the child home. The statute also outlines conditions where reasonable efforts to provide reunification services are not required. (41-3-432).
• Adjudicatory hearing. Must be held within 90 days of the Show Cause Hearing. In this hearing the court determines whether the youth is a youth in need of care and ascertain, as far as possible, the cause. If the court finds the child is not an abused or neglected child the matter is dismissed. If the court adjudicates the child as a youth in need of care a date is set for the dispositional hearing within 20 days. A temporary dispositional order may be issued pending the dispositional hearing. (41-3-437).

• Dispositional hearing. Must be held within 20 days after an adjudicatory order has been entered. A Dispositional Hearing may follow an Adjudicatory Hearing in a bi-furcated manner. In the dispositional hearing the court may permit the child to remain with the child’s parent or guardian subject to conditions the court may prescribe; grant an order of limited emancipation if the youth is 16 years or older; or transfer legal custody to DPHHS, a licensed child placing agency, or a relative or individual recommended by DPHHS or a licensed child placing agency. Additionally the court may order a treatment plan to effect final disposition. (41-3-438).

• Permanency plan hearing. A permanency plan hearing must be held no later than 12 months after the initial court finding that the child has been subjected to abuse or neglect or 12 months after the child’s first 60 days removal from the home, which ever comes first, unless the proceeding has been dismissed, the child was not removed from the home, or the child has been returned to the child’s parent or guardian. At least 3 days prior to the permanency plan hearing, the department and the guardian ad litem shall each submit a report regarding the child to the court for review. The statute outlines the content of the report and it must include the plan for permanency, including specific times for achieving the plan. If the court finds the permanency plan in the best interests of the child it shall order the department to take whatever steps are necessary to effectuate the terms of the plan. If it is found reunification of the child with parent is not in the child’s best interests a subsequent petition must be filed to accomplish a termination of parental rights or long term custody without termination of parental rights. (41-3-445).

• Termination of Parental Rights hearing. (TPR) If the child has been in foster care under the custody of the state for 15 months of the most recent 22 months or if the court has found that reasonable efforts to preserve or reunify a child with the child’s parent or guardian are not required pursuant to 41-3-423, a petition to terminate parental rights and grant permanent legal custody with the right to place the child adoptively to the Department of Health and Human Services shall be filed. The statute then goes on to identify circumstances where filing a petition to terminate parental rights is contraindicated. (41-3-604)(2). At the time that a petition for termination of a parent-child relationship is filed, parents must be advised of the right to counsel, and counsel must be appointed for an indigent party. The statute also directs that a guardian ad litem must be appointed to represent the child’s best interests. (41-3-607) (3).

9. Guidelines for judges.

• The MCA provides judges with substantial guidance at each level of court proceedings. The essence of these guidelines is described above in the summary of the various types of court hearings.

10. Legal requirements of parents.

• When a parent is served with an order for immediate protection of their child they must immediately comply with the terms of the order and appear before the court issuing the order on the specified date for a show cause hearing. Upon failure to comply or show cause, the court may hold the parent in contempt or place temporary physical custody of the child with the department until further notice. The court may require a parent to grant right of entry by a peace officer or department worker; submit to a medical or psychological evaluation; receive counseling; furnish information that the court may designate; and provide information as to their financial ability to contribute to the costs of care, custody and treatment of the child. (41-3-427)(2).
• Upon the stipulation of the parent, or upon a judicial finding that a child is a youth in need of care, the court may order a treatment plan. The treatment plan may, in addition to the conditions above, require the parent to undergo a substance abuse evaluation; restrict the parent from associating with or contacting any individual who may be the subject of a department investigation; and furnish services that the court may designate. (41-3-443).

11. What judges must include in court orders.

• Immediate protection. When granting an order for the immediate protection of a youth the order must require the person served to comply with the terms of the order and to appear before the court on a specified date for a show cause hearing. (41-3-427).
  
• Show cause. At the conclusion of a show cause hearing, in an order granting or denying relief, the court shall make a finding regarding the reasonableness of agency efforts to prevent the child’s removal from the home or to make it possible to safely return the child to the child’s home. If the court finds that preservation or reunification services are not necessary, a permanency plan hearing must be held within 30 days of that determination. (41-30-432).
  
• Adjudication. In the adjudicatory hearing the court shall determine by a preponderance of the evidence whether the youth is a youth in need of care and ascertain, as far as possible, the cause. If the youth is adjudicated a youth in need of care, the court shall set a date for a dispositional hearing to be conducted within 20 days. (41-3-437).

• Disposition. At the dispositional hearing the court may enter a judgment, making any of the following dispositions: a) permit the youth to remain with the youth’s parent or guardian; b) grant an order of limited emancipation to a youth sixteen years or older; c) transfer temporary legal custody to the department, a licensed child-placing agency, or to a relative or other individual approved by the department or a licensed child-placing agency. The court may also order a specified treatment plan to give effect to the final disposition. (41-3-443). Temporary legal custody is usually for six months, although the time may be extended by the court for a second six-month period.If the court orders the transfer of custody of a youth to the department, the court must examine the financial ability of the youth’s parents or guardian to pay a contribution covering all or part of the costs of care, custody and treatment. If the court determines that the youth’s parents or guardians are financially able to pay a contribution, the court shall order a payment based upon the uniform child support guidelines. (41-3-438)(3)(e) & (41-3-446).

• Emancipation. In an order granting limited emancipation for a youth 16 years or older, the rights and responsibilities that are being conferred upon the youth must be specifically set forth. These rights and responsibilities are delineated in the statute. The judge must included in the order for limited emancipation a provision requiring the youth to make periodic reports to the court upon the terms prescribed by the court. (41-1-501).
  
• Permanency Plan. At least 3 days prior to a permanency plan hearing the department and the guardian ad litem must submit a report which shall include a plan for permanency for the child. The will make a finding of to the permanency plan is in the best interests of the child and shall order the department to take whatever steps are necessary to effectuate the terms of the plan. The court will also order the county attorney, attorney general, or an attorney hired by the county to file a petition to implement the plan with the court within 30 days. (41-3-445).

• Termination. Termination of parental rights may occur if the child has been adjudicated a youth in need of care and both of the following exist: a) an appropriate treatment plan that has been approved by the court has not been complied with or has not been successful; and b) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. In determining whether the conduct or condition of the parent is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse and neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. (41-3-609).
  
• Review following termination. At the conclusion of a hearing in which the court orders termination of the parent-child legal relationship, the court shall order that a review hearing be held within 180 days. (41-3-610).

12. Appeals:

Appeals of court orders granting in child abuse and neglect proceedings shall be given precedence on the calendar of the Supreme Court over all other matters, unless otherwise provided by law. An appeal does not stay the order appealed from; however, the Supreme Court may order a stay upon application and hearing if suitable provision is made for the care and custody of the child. (41-3-113).

13. Open vs. closed hearings:

Although not specifically delineated in the Title 41, Chapter 3 of the MCA, child abuse and neglect proceedings are closed hearings. However, 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 must be given an opportunity to be heard. (41-3-422)(9)(a).

14. Confidentiality of juvenile records:

The case records of the department, the county welfare department, the county attorney, and the court concerning actions taken in child abuse or neglect matters are confidential. All records concerning reports of child abuse or neglect are likewise to be kept confidential. The statute provides that disclosure of confidential information may be made to certain parties including the guardian ad litem. Those authorized to receive confidential information are obligated to maintain the confidentiality of the records. (41-3-205).

15. Rights of foster parents:

Confidential information may be disclosed to approved (release must be obtained through DPHHS) foster parents who are providing care for a child. (41-3-205). Any foster parent providing care for a child who is the subject of a child abuse or neglect proceeding must receive notice of all judicial proceedings and be given the opportunity to be heard. (41-3-422)(9)(a). Foster parents are required to receive written notice and an opportunity to appear before the citizen review board to participate in case plan reviews for children in their care. (41-3-1010). Foster parents of a child whose case is under review by a foster care review committee are considered a member of that committee. However, the foster parent’s appointment is effective only for and during that review. (41-3-115