ACKNOWLEDGMENTS Through a grant from the U.S. Department of Health and Human Services, Administration for Children and Families, the Montana Supreme Court Office of the Court Administrator was given the opportunity to evaluate how Montana's legal system is handling child abuse and neglect proceedings. The Court Assessment Program represents the first major survey of how Montana's court process impacts children who have been abused or neglected. The results of the assessment were dependent upon the cooperation of all of the major players in child abuse and neglect proceedings including: district court judges, county attorneys, the Department of Public Health and Human Services Child and Family Services Division, clerks of court, attorneys who represent children and parents, and CASA, Foster Care Review Committee, and Citizen Review Board volunteers. We would like to thank all of the individuals who filled out very lengthy questionnaires and those who willingly gave up their time to answer numerous questions regarding their role in the court process. We would also like to thank the judges and clerks of court in the first, eighth, twelfth, thirteenth, and nineteenth judicial districts, and all of the other individuals who participated in the site evaluations. Through your participation we gained invaluable knowledge about the court process. Finally we would like to thank the Court Assessment Program's advisory committee who helped develop the program and keep it on track. Without your dedication, encouragement, and thoughtful insight, this project would not have been possible. TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . .1 A. Montana and its Courts. . . . . . . . . . . . . .1 B. Federal Legislation . . . . . . . . . . . . . . .2 C. Program Participants. . . . . . . . . . . . . . .3 D. Methodology . . . . . . . . . . . . . . . . . . .4 II. CASEFLOW MANAGEMENT . . . . . . . . . . . . . . . . .6 A. Individual Calendering. . . . . . . . . . . . . .6 B. Continuances. . . . . . . . . . . . . . . . . . .7 C. Information Management. . . . . . . . . . . . . .9 III. REPRESENTATION . . . . . . . . . . . . . . . . . . . 10 A. Representation of Children. . . . . . . . . . . 10 B. Representation of Indigent Parents. . . . . . . 14 C. Representation of the State . . . . . . . . . . 16 D. Training for Future Lawyers . . . . . . . . . . 19 IV. CONSISTENCY IN THE COURT SYSTEM. . . . . . . . . . . 20 A. Statutory Changes . . . . . . . . . . . . . . . 20 B. Addressing the Needs of Judicial Districts. . . 24 V. REASONABLE EFFORTS . . . . . . . . . . . . . . . . . 26 VI. JUDICIAL OVERSIGHT . . . . . . . . . . . . . . . . . 30 VII. REVIEW HEARINGS. . . . . . . . . . . . . . . . . . . 34 A. Six-Month Review Hearings . . . . . . . . . . . 34 B. Review Hearings After Termination . . . . . . . 37 VIII. INDIAN CHILD WELFARE ACT. . . . . . . . . . . . 38 A. Background. . . . . . . . . . . . . . . . . . . 38 B. Notice Requirement. . . . . . . . . . . . . . . 40 C. Jurisdiction. . . . . . . . . . . . . . . . . . 41 D. Placement of Indian Children. . . . . . . . . . 42 E. Legislative Changes . . . . . . . . . . . . . . 43 IX. MONTANA ADOPTION LAWS . . . . . . . . . . . . . . . 44 A. Background. . . . . . . . . . . . . . . . . . . 44 B. Putative Father Registry. . . . . . . . . . . . 45 C. Voluntary Termination of Parental Rights. . . . 46 D. Involuntary Terminations. . . . . . . . . . . . 47 E. Expediency. . . . . . . . . . . . . . . . . . . 48 F. Records . . . . . . . . . . . . . . . . . . . . 48 G. Brokering/Advertising . . . . . . . . . . . . . 48 X. RECOMMENDATIONS/IMPLEMENTATION PLAN. . . . . . . . . 49 A. Case Management . . . . . . . . . . . . . . . . 49 B. Representation. . . . . . . . . . . . . . . . . 49 C. Consistency in the Courts' Handling of Child Abuse and Neglect Cases51 D. Reasonable Efforts. . . . . . . . . . . . . . 51 E. Judicial Oversight. . . . . . . . . . . . . . 52 F. Review Hearings . . . . . . . . . . . . . . . 52 G. Indian Child Welfare Act. . . . . . . . . . . . 53 H. Proposed Adoption Legislation . . . . . . . . . 53 XI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . 55 APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . 56 I. INTRODUCTION A. Montana and its Courts Montana is a state of considerable diversity of geography, population, and child welfare resources. Montana covers a large land mass of 147,046 square miles -- 30% of which is federally owned. Montana has a population density of 5.49 persons per square mile. It has a metropolitan area population of 24.2% of the general population. The eastern part of the state has a very low population density and limited child welfare resources in contrast to that of the western part of the state. Montana's geographic distances create access problems to the court. In addition, many regions lack human services professionals (e.g. psychologists and mental health counselors) to assist the court in foster care and adoption cases. The judicial power of the state is vested in a three-tiered structure of appellate, general, and limited jurisdiction courts. These are represented respectively by the Supreme Court, District Courts, and Courts of Limited Jurisdiction. All judges in Montana are elected in nonpartisan elections. There are seven Supreme Court Justices who are elected for eight-year terms. Thirty-seven District Court Judges serving twenty-one judicial districts are elected for six-year terms. All other judges serve four-year terms. There is no uniform court system or family court system in Montana. Montana's District Courts are courts of general jurisdiction which results in heavy workloads, and most judges do not receive specialized training in child abuse and neglect issues. Furthermore, many of the individuals involved in child abuse and neglect litigation are incognizant of the court's influence on permanence for children. B. Federal Legislation The Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, was designed to assure that maltreated children are provided a stable, permanent, and safe home. The Act reflects the value Congress places upon meticulous and impartial decision-making procedures and Congress's assumption that the court process is central and essential to efforts of social workers and service providers. The Act calls upon courts to perform specific steps in child abuse and neglect litigation. The steps are as follows:  Courts shall explicitly determine whether the child welfare agency has made "reasonable efforts" to prevent placement of each foster child and to return the child home;  Courts shall approve any voluntary, nonjudicial foster placements within 180 days after the original placement;  Courts, agencies, or citizen review boards shall review the case of each child in foster care at least once every six months;  Courts or "administrative bod[ies] appointed or approved by the court[s]" shall hold a hearing no later than 18 months after the placement and periodically thereafter to determine the permanent placement arrangement for the child; and  Procedural safeguards shall be provided for parents when children are removed from the home or are moved into different foster homes. Recognizing the impact of P.L. 96-272, Congress in 1993 offered funds to States to assess and make changes in the delivery of child welfare services through a court improvement program. The court improvement program was intended to help state courts perform their role in the continuum of care provided for families and children at risk. The program provided state courts with the opportunity to collaborate with the other organizations and individuals responsible for promoting and protecting the well-being of children and families to review laws and procedures designed to provide rights and protection to parents, children and families as a whole. In 1994, the Montana Supreme Court Administrator's office applied for and was granted federal funding to administer a court improvement program in its state. The program began June of 1995 and has thereafter been referred to as the Court Assessment Program. The first two years of the program focused on gathering data and setting forth issues upon which recommendations were made. The final two years of the program will be centered on implementation of the recommendations as provided in this report. C. Program Participants The Court Assessment Program's staff consist of a Court Assessment Program Coordinator, Legal Analyst, and a part-time administrative assistant. Both the Program Coordinator and Legal Analyst are attorneys and former law clerks for the Montana Supreme Court. The Program Coordinator assembled a diverse group to advise the staff members on methodology, analysis, and recommendations. The Advisory Committee will continue their participation in the program through the implementation phase. The Advisory Committee is made up of the following:  four members of the state legislature (two from the House of Representatives and two from the Senate)  four acting District Court Judges and one retired District Court Judge  a Supreme Court Justice  a Tribal Court Judge  an attorney for the Indian Law Resource Center who was the former State Indian Child Welfare Act Specialist  a county attorney  an attorney guardian ad litem  a juvenile probation officer  a program officer for the Department of Public Health & Human Services, Child and Family Services Division  a Permanency Planning Specialist and a Regional Administrator for the Department of Public Health and Human Services, Child and Family Services Division  the director of the Citizens Review Board  the project director of the Montana State Families for Kids Initiative  the president of the Montana State Foster and Adoptive Parent Association. D. Methodology The Court Assessment Program collected data statewide. Detailed questionnaires were sent to 274 individuals who are directly involved with child abuse and neglect cases in Montana. The individuals included 33 district court judges, 58 county attorneys, 30 Department of Public Health and Human Services (DPHHS) social work supervisors, 44 parents' attorneys, 15 CASA volunteers, 33 court administration personnel, 6 members of the Citizens Review Board, and 34 members of the Foster Care Review Boards. The overall response rate was 75%. In addition, site visits were conducted in five counties within five judicial districts. Three of Montana's relative urban areas and two more rural areas were chosen for site visits. The site visits consisted of 30 interviews, 400 file reviews, and 10 court observations. The Court Assessment Program interviewed judges, county attorneys, social work supervisors, attorney guardians ad litem, and parents' counsel in each county. The sites are identified as follows: Yellowstone County The 13th Judicial District serves Yellowstone, Stillwater, Carbon, and Bighorn counties for a total population of 150,994 within 11,525 square miles. There are five District Court Judges serving in the 13th Judicial District; three of the five judges hear child abuse/neglect cases in Yellowstone County. In 1996, there were 5,689 new filings and reopenings in Yellowstone County; 171 were child abuse/neglect petitions. Lewis and Clark County The 1st Judicial District serves Broadwater County and Lewis and Clark County for a total population of 56,670 within 4,669 square miles. Three judges serve the 1st Judicial District and all three hear child abuse/neglect cases. In 1996 there were 3,519 new filings and reopenings in Lewis and Clark County; 48 were child abuse/neglect petitions. Cascade County The 8th Judicial District serves Cascade County which has a population of 81,167 within 2,661 square miles. Three District Court Judges serve the 8th Judicial District, and one judge hears all child abuse/neglect cases. The judges rotate the child abuse/neglect assignment every three years. In 1996 there were 3,383 new filings and reopenings in Cascade County; 63 were child abuse/neglect petitions. Hill County The 12th Judicial District serves Hill, Liberty and Chouteau counties for a total combined population of 25,169 within 8,293 square miles. One District Court Judge serves in the 12th Judicial District. In 1996 there were 558 new filings and reopenings in Hill County; 12 were child abuse/neglect petitions. Lincoln County The 19th Judicial District serves Lincoln County which has a population of 18,409 within 3,714 square miles. One District Court Judge serves in the 19th Judicial District In 1996 there were 791 new filings and reopenings in Lincoln County; 22 were child abuse/neglect petitions. II. CASEFLOW MANAGEMENT A. Individual Calendering There are two methods of assigning cases to judges, individual and master calendaring. In the individual calendaring method, one judge is assigned to a case at the time the first petition is filed with the court, and this judge remains with the case through all subsequent proceedings. Courts that employ the master calendar method reassign a case to different judges at different stages of the case. National guidelines provide that individual calendaring is the preferred method of case assignment as it allows for a judge to become familiar with the families' and children's circumstances. This knowledge allows the judge to make better informed decisions regarding the child's case. The assessment data indicates that Montana courts typically employ the individual calendering method for child abuse and neglect cases. It appears, therefore, that judicial rotation on individual child abuse and neglect cases is not a significant problem in Montana. HOW OFTEN DOES THE SAME JUDGE CONSISTENTLY HEAR THE DIFFERENT STAGES OF THE SAME CA/N CASE? RARELY/ OCCASIONALLY OFTEN/ USUALLY ALWAYS % OF COUNTY ATTORNEYS 4.8 23.8 69.0 % OF PARENTS' COUNSEL 3.4 31.0 65.0 % OF SOCIAL WORKER SUPERVISORS 5.6 33.3 61.1 % OF COURT ADMIN. PERSONNEL 8.0 24.0 64.0 The categories for the individual respondents do not always total 100% because some of the respondents did not answer the question. The table does not report the missing responses. B. Continuances National guidelines report that last minute continuances are a problem because they are an ineffective expenditure of government resources. A waste of time and money occurs when the court grants a party's request for a continuance on the day of a scheduled hearing when the judge, attorneys, and social worker are present at the courthouse and waiting for the hearing to take place. The assessment examined whether requests for last minute continuances is routine practice in Montana courts. The results demonstrate that last minute requests for continuances are not routinely requested in child abuse and neglect cases. Estimate how often on the scheduled day of a contested child abuse and neglect hearing it is necessary to reschedule the hearing for any reason to begin another day. Estimate how often on the scheduled day of a uncontested child abuse and neglect hearing it is necessary to reschedule the hearing for any reason to begin another day. Rarely/ Occasionally Often/Usually Rarely/ Occasionally Often/Usually % Judges 89.7 10.3 % of Judges 100.0 % of County Attorneys 88.1 7.1 % of County Attorneys 92.9 2.4 % of Parents' Counsel 65.5 34.5 % of Parents' Counsel 89.7 10.3 % of Social Worker Supers. 55.6 38.9 % of Social Worker Supers. 94.4 5.6 % of Ct. Admin. Personnel 88.0 12.0 % of Ct. Admin. Personnel 100.0 The categories for the individual respondents do not always total 100% because some of the respondents did not answer the question. The table does not report the missing responses. While last minute continuances do not appear to be a significant problem, continuances in general are routinely requested and granted in child abuse and neglect cases. Placing limits on these requests will help to move these cases through the court process more quickly. To safeguard against parties' requesting continuances as a matter of course and to ensure that judges do not routinely grant requests for continuances, the advisory committee recommended that all participants in the court system be educated regarding the need to limit continuances to those instances when it is absolutely necessary. The assessment also evaluated who most frequently makes requests for continuances. The data suggests that parents are responsible for the largest percentage of these requests. Interviewees reported that this is often due to the parents' failure to appear at court hearings. It is hoped that by educating judges of the importance of instructing parents early on in the process of the potential for terminating of their parental rights, parents will feel more compelled to attend all hearings. C. Information Management At the present time information regarding tracking and maintenance of court dates, notification, and other legal issues surrounding child abuse and neglect cases is not available through an automated data management system. However, the Office of the Court Administrator is currently installing the Montana Judicial Case Management System into various judicial districts across the state and DPHHS Child and Family Services Division has installed an automated case management system into every field office. With the full implementation of both systems, both the court and DPHHS should be able to readily track and manage case deadlines. Because the two case management systems do not have access to one another the advisory committee recommended further study of this issue to determine the feasibility of access between the two systems, and to what extent information should be shared. III. REPRESENTATION A. Representation of Children Pursuant to the Child Abuse Prevention and Treatment Act of 1974, states who receive federal funds for the prevention of child abuse and neglect are required to provide guardians ad litem (GALs) for every child involved in child abuse and neglect proceedings. The Act, however, did not define the role or responsibilities of GALs. As a result, jurisdictions throughout the country have appointed attorneys and/or lay advocates, and even no advocate when funding is prohibitive. Under Montana's statutes, any child who is alleged to be abused or neglected is entitled to a guardian ad litem in every judicial proceeding. The GAL is charged with representing the child's interests. These duties include appearing and participating in any proceedings to adequately represent the child. Montana law does not require that the GAL be an attorney, and legal representation for children varies between the judicial districts with some districts relying primarily on attorney GALs, some districts relying on non-attorney lay advocates, and some districts utilizing both. REPRESENTATION OF CHILDREN IN CA/N CASES % OF CHILDREN REPRESENTED BY ATTORNEYS % OF CHILDREN REPRESENTED BY NON-ATTORNEY LAY ADVOCATES JUDGES 83.75 37.38 COUNTY ATTORNEYS 82.30 16.22 PARENTS' COUNSEL 86.59 28.88 SOCIAL WORKER SUPERVISORS 79.94 21.88 In addition, some of the busier districts contract or employ only one attorney for GAL services, the result being that the attorney has an overwhelming caseload. In the interviews of both attorney GALs and county/deputy county attorneys, large caseloads contributed significantly to the GAL's lack of independent knowledge about the child. The Resource Guidelines provide that counsel for the parties must thoroughly investigate the case in order to prepare a list of issues and questions in advance of court hearings to ensure that the judge has complete and accurate information. The advisory committee recognized that the counties have limited funds to employ additional GAL services. Investigative services, however, could be provided through volunteer lay advocates. Several counties within the State of Montana have lay advocate programs to assist the attorney guardians ad litem or to act as the sole representative for the children. The lay advocate programs are associated with the National Court Appointed Special Advocate (CASA) Association. Under the CASA program, volunteers go through an evaluation and training process before they can become CASAs. They receive an average of 28 hours of training in the dynamics of child abuse and neglect, the roles and responsibilities of a lay advocate, child development, Montana child abuse and neglect law, communication, information gathering and confidentiality, and how to write a court summary and testify. After appointment, CASA volunteers interview case workers, meet parents of the child, speak to foster parents, medical professionals, and any other person involved with the child, and then report to the court on their findings. Lay advocates are the child's sole representative in two counties. Some members of the advisory committee believed that a child should have legal representation and the lay advocate should assist the attorney GAL. Again, recognizing the counties lack of funding, the advisory committee concluded that the district courts should have the flexibility to appoint a lay advocate, or an attorney GAL, or both as may be necessary. However, the committee recommended that CASA programs be developed in areas where the attorney GAL has a large caseload and insufficient time to investigate what is in the best interest of the child. To implement this recommendation, the Court Assessment Program proposes to assist the public defender in the county in which the Court Assessment Program is located in developing a CASA program. Such assistance would be subject to the public defender's needs and desires and may include soliciting and interviewing CASA candidates, training those who are chosen and organizing a process by which the public defender may operate the program with minimal resources of both time and money. The Court Assessment Program proposes to work with the Citizen Review Board in combined training efforts. In developing a CASA program in this county, the Court Assessment Program will collaborate with the National CASA Association to compile a resource book for other counties within the State of Montana to use in starting their own programs. The Court Assessment Program intends to focus additional assistance to areas with large caseloads and insufficient representation. In addition, the advisory committee noted that Montana's guardian ad litem statute provides that the GAL shall represent the child's interest. Recognizing that the child's interest is not always in the best interest of the child, the advisory committee recommended that the word "best" be inserted into the statute. Accordingly, the Court Assessment Program has proposed legislation to amend that section and to add a new section which defines "best interest of the child" as it pertains to the child abuse and neglect statutes. B. Representation of Indigent Parents National guidelines suggest that all parties have competent and diligent representation at every critical stage of the proceedings. Although courts in Montana have the authority to appoint counsel to indigent parents at any stage, indigent parents do not have a right to counsel until the termination stage of child abuse and neglect cases. % OF CUSTODIAL PARENTS REPRESENTED BY ATTORNEYS IN CA/N CASES TIA ADJUDICATION TERMINATION JUDGES 22.98 52.8 96.79 COUNTY ATTORNEYS 39.63 50.96 97.58 PARENTS' COUNSEL 33.48 46.31 93.04 SOCIAL WORKER SUPERVISORS 29.94 41.36 98.88 CT. ADMIN PERSONNEL 35.39 56.48 80.43 cont'd % OF NON-CUSTODIAL PARENTS REPRESENTED BY ATTORNEYS IN CA/N CASES TIA ADJUDICATION TERMINATION JUDGES 6.76 23.13 81.15 COUNTY ATTORNEYS 18.22 25.32 74.69 PARENTS' COUNSEL 15.71 23.91 61.25 SOCIAL WORKER SUPERVISORS 13.38 19.57 79.97 CT ADMIN PERSONNEL 13.21 23.75 57.25 Interviewees had mixed responses as to whether indigent parents should be appointed counsel earlier. In one judge's opinion, "parents' counsel are too obligated to follow the wishes of the parent even though those wishes may not be in the child's best interest. Lawyers don't help to facilitate an easy solution. They tend to get in the way more than help the process. The adversarial system is not well suited to deal with matters of family." While other interviewees agreed that appointment of parents' counsel tends to make the system more adversarial, the majority of social workers, guardians ad litem, parents' counsel, and county attorneys found, that in their experience, earlier representation of parents resulted in faster resolution of the case. Counsel helps parents to understand the significance of the situation and their responsibility in completing the treatment plan. Furthermore, when the parents' rights are protected through representation, the county attorney and the judge would no longer find it necessary to prolong the process in order to protect those rights. The advisory committee concluded that counties did not have the resources to fund the appointment of counsel to all indigent parents in all circumstances, and that the appointment of parents' counsel prior to termination should remain in the court's discretion. The committee therefore recommended that district court judges be encouraged to appoint parents' counsel earlier where the respondent does not respond affirmatively to the state's intervention. Implementation of this recommendation will include judicial education in addition to research to determine nationally how the appointment of parents' counsel at an earlier stage affects the length and total cost of the individual case. If further research and discussion with the advisory committee indicates that earlier appointment of parents' counsel is cost and time effective, the Court Assessment Program proposes to submit this research, along with an analysis of the need for earlier appointments, to the 1999 state legislature to ask for additional funding to hire parents' counsel in child abuse and neglect cases. C. Representation of the State In Montana, the county attorney, attorney general, or an attorney hired by the county is responsible for filing all petitions alleging abuse or neglect. DPHHS's staff attorneys assist the county attorneys on appeals to the Montana Supreme Court regarding child abuse and neglect cases and advise the county attorneys concerning these cases at the district court level. While some of the social work supervisors and district court judges believe that counsel for the state should be independent of the department, questionnaire responses report that the quality of representation provided by the county attorneys' offices has been inconsistent. Although the counties are statutorily required to provide counsel to DPHHS, one county attorney refused to represent the department in all child abuse and neglect cases. Overburdening caseloads and lack of prioritizing child abuse and neglect cases were also sited by questionnaire respondents as reasons for the disparity of representation. Additionally, social work supervisors reported that while the county/deputy county attorneys are present at nearly all the hearings, 30% of the county/deputy county attorneys only rarely or occasionally monitor the case between hearings. The county/deputy county attorneys reported that lack of resources was the major impediment in adequate representation of DPHHS. In one of the counties where interviews took place, the deputy county attorney who represented DPHHS was also on a felony rotation. The time required to handle felony cases often conflicted with the prosecution of child abuse and neglect cases. As a result, the county attorney's office applied for and received a grant from the State Board of Crime Control to fund a full-time position to represent DPHHS in child abuse and neglect cases. The Court Assessment Program will review grant options in addition to funding sources pursuant to Title IV-E of the Social Security Act to help pay for attorneys' representing DPHHS in child abuse and neglect cases. The results of this review will be used to assist DPHHS and counties in developing additional resources for representation in child abuse and neglect cases. To address the inconsistency of DPHHS's representation, the Advisory Committee recommended that the statutes be amended to clarify the burden of proof requirements at each stage. Accordingly, the Court Assessment Program proposed legislation which requires that for adjudication, the state must prove by a preponderance of the evidence that a youth is a youth in need of care. The Advisory Committee also recommended to encourage DPHHS to provide ongoing training for judges and county attorneys at the state multi-disciplinary meeting; and for the Court Assessment Program to provide training to county attorneys regarding the changes in the child abuse and neglect statutes at the county attorneys conferences in order to establish standardized practices regarding when the county attorneys should proceed with a case. The Court Assessment Program also intends to discuss ongoing educational opportunities regarding representation of parties in child abuse and neglect litigation with the Montana Bar Association. D. Training for Future Lawyers Currently, the University of Montana School of Law does not regularly offer didactic or clinical training regarding child abuse and neglect issues. The advisory committee identified an effective means of training lawyers regarding this area of law to be the inclusion of a class or clinical program at the law school. The Court Assessment Program is currently collaborating with the law school to determine how the law school may offer an additional child advocacy class or clinical program. IV. CONSISTENCY IN THE COURT SYSTEM Consistency in the court system is the base by which we may establish a system in litigating child abuse and neglect issues that is fundamentally fair to Montana's families. In discussing the data collected by the Court Assessment Program, the Advisory Committee concluded that statutory changes were necessary to clarify the existing law and provide time lines for temporary orders. The Court Assessment Program has submitted these changes to the 1997 legislature and will consider potential methods to facilitate consistent application of the statutes if they are adopted. A. Statutory Changes Temporary orders, under Montana's Child Abuse and Neglect Act, include orders for emergency protective services, temporary investigative authority and protective services (TIA), and temporary legal custody (TLC). Emergency protective services provide for the immediate removal of the child from the home. TIAs are issued after a showing of facts establishing probable cause that the child is or is in danger of being abused or neglected and further investigation is required prior to adjudicating the youth a youth in need of care. TLC is ordered at the time of disposition and after adjudication of the child. Over half of those interviewed remarked that there was a need to limit the number of temporary orders which could be issued per case. The Resource Guidelines provide that "[p]rinciples of sound case flow management require that there be specific and strict time limits for every stage of the court process." As one Montana attorney stated, "Time lines are important. In [his particular county], they wait approximately two years before they move for termination. Too long! The department tends to say the parent's treatment plan is fine but they need further time. The department should be more specific on whether the treatment plan is working and what is going on within 6 months. The child needs stability quickly -- either return the child home or move for termination." In general, orders for TIAs are 90 days and orders for TLC are 180 days. These orders, however, are frequently extended. Of the 400 case files reviewed, temporary relief was extended 11 times in one case, 7 and 8 times in 3 cases, and between 3 and 6 times in 45 cases. Interestingly, while temporary relief was extended less than 3 times in over three quarters of the cases, a judicial member of the Advisory Committee emphasized his concern that even one case was extended 11 times. Furthermore, subsequent discussions with participants in child abuse/neglect litigation in counties where case files were not reviewed suggest that numbers of extended temporary relief are greater in other judicial districts. Additionally, in the sites reviewed, the authority granted under temporary orders is often misconstrued. Temporary investigative authority requires the department to submit to the court facts establishing a probable cause that a youth is abused or neglected or is in danger of being abused or neglected. Upon the filing of a petition for temporary investigative authority and protective services, the court may grant relief that may be required for the immediate protection of the youth. Nevertheless, treatment plans are often implemented at the TIA stage even though the child has not been adjudicated a youth in need of care. Adjudication provides the basis for state intervention in a family. Therefore, enforcement of treatment which is not required for the immediate protection of the child (for example, the child has been removed from the home and so is protected from immediate harm) is an inappropriate exercise of the state's power. Some of the interviewees, however, asserted that time limits for TIAs are inappropriate where parents, who are progressing successfully in a voluntary treatment plan, are submitted to further reproach through the adjudication process. Recognizing these circumstances, the advisory committee recommended that TIAs be extended upon the written approval of both parties yet remain subject to the permanency plan hearing provided for by statute. To obtain consistency in length and application of process within the court system and to work toward the department's goal of achieving permanency within one year, the Advisory Committee recommended time lines be set for temporary orders. Accordingly, the Court Assessment Program has submitted the following statutory changes to the legislature. An order for temporary investigative authority and protective services shall be issued for a period not longer than 90 days following the show cause hearing and shall be limited to one extension of an additional 90 days. An order for temporary legal custody shall be in effect for not longer than 6 months. Temporary legal custody may be extended upon a showing that additional time is necessary for the parent to successfully complete a treatment plan. In any event, a permanency plan hearing shall be held by the court no later than 12 months after the initial order is issued. The court shall then order that the child be returned to the custody of the parent unless the court finds, by a preponderance of the evidence, that returning the child would create a substantial risk or be detrimental to his or her physical or emotional well-being. The failure of a parent or guardian to participate in, comply with, in whole or in part, or to meet the goals of the treatment plan is prima facie evidence that return of the child to the parent or guardian would be detrimental. If the child is not returned home, the court shall order the department to develop a permanent plan, and order the county attorney to petition the court within 30 days for a determination regarding whether termination of parental rights, long-term legal custody, or temporary legal custody for a specified period of time prior to reunification, is the most appropriate plan for the child. Accordingly, the statutes will comply with the federal requirement that a permanent plan for the child will be in place within 18 months of the child's removal from the home. B. Addressing the Needs of Judicial Districts The advisory committee recognized that even if the proposed legislation is passed application of the amended statutes may be inconstant given the divergent makeup of the communities served. Since the proposed legislation requires greater judicial oversight, the Court Assessment Program will investigate methods to assuage the potential increase in duties. One problem the district courts face is the amount of time that judges in rural districts must travel to sit for preliminary hearings. Currently, the department may remove a child from the home without court approval in emergency situations but must file a petition for relief within 48 hours from the time of removal. The court may then issue an ex parte order granting relief as required for the immediate protection of the youth and set a show cause hearing to be held within 20 days of the issuance of the initial order. Thus, the parent may have no opportunity to contest the removal of the child from the home for up to 22 days. The Resource Guidelines provide that a preliminary protective hearing, or show cause hearing, should occur within 72 hours after the child has been placed outside the parents' care. This time line is often unattainable in the more rural parts of the state considering the large distance the court must travel to each county courthouse and extreme weather conditions which may further impede traveling. The Court Assessment Program is reviewing the use of the Montana Educational Telecommunication NETwork (METNET) Interactive Video System which involves compressed, two-way interactive video capabilities. Ideally, rural sites would be set up with monitors with cameras on top through which participants could view each other eye to eye for show cause hearings over long distances. The court would therefore be able to hold hearings within 48 to 72 hours, the process could move along at an earlier stage, and ultimately the time in which children are in foster care could be limited. In addition, the increased availability of sites could expand the use of substitute judges to further expedite process. There are currently 35 sites in Montana that are accessible by METNET. Those sites include many of the rural areas of Eastern Montana in which the judges generally travel the most distances. The Court Assessment Program will discuss this option further with those judges specifically effected by it, and will investigate funding sources to develop more sites if necessary. Rural districting is not the only factor inhibiting the court process. According to the Supreme Court Annual Report, the 1996 average number of new filings and reopenings was 904 cases per judge. However, actual caseloads ranged from 380 to 1530 cases per each judge. Even considering the "windshield time" of the rural judges, the districts are unequivocally disparate. Attempts at redistricting have been unsuccessful in the past. Therefore, the Advisory Committee recommended the expansion of the magistrate/special master system in order to provide assistance in nondispositive issues in judicial districts with overburdening caseloads. Nondispositive issues would involve orders for temporary investigative authority and protective services. According to the files reviewed in the five sites, a large majority of the cases were dismissed after a TIA was ordered and prior to adjudication. The district court judges would then take the case at adjudication at which time the department is required to show by a preponderance of the evidence that the youth is a youth in need of care. In that manner, the judge would enter the case at the stage upon which disposition is based. To implement this recommendation, the Court Assessment Program will submit a recommendation to the Montana Supreme Court to revise Rule 53, M.R.Civ.P., to allow the use of special masters in more than exceptional circumstances. While District Judges' salaries are paid by the state, magistrates are part of court costs and are therefore funded by the county. As always, county resources are limited, and so, the Court Assessment Program will investigate resources to fund the initial development of magistrate systems. The Court Assessment Program will then work with judicial districts desiring magistrates to approach the 1999 legislature for continued funding. V. REASONABLE EFFORTS Federal law requires that the court make a finding regarding the reasonableness of agency efforts to rehabilitate the family to avoid unnecessary removal of children from their homes. According to national guidelines, the issue of reasonable efforts should be addressed at every stage of the court process. The stages referred to include the initial hearing, adjudicatory hearing, dispositional hearing and termination hearing. As the following data demonstrates, judicial determinations of reasonable efforts are not made in all instances. HOW OFTEN DO JUDGES MAKE A JUDICIAL DETERMINATION OF REASONABLE EFFORTS AT EACH OF THE FOLLOWING HEARINGS TIA/INITIAL HEARING ADJUDICATORY HEARING DISPOSITIONAL HEARING TERMINATION HEARING % of JUDGES Rarely/ Occasionally 37.9 34.5 31.0 17.2 Often/ Usually 51.7 55.2 58.6 72.4 % of COUNTY ATTORNEYS Rarely/ Occasionally 42.9 28.6 33.3 19.0 Often/ Usually 42.9 57.1 52.4 50.0 % of PARENTS' COUNSEL Rarely/ Occasionally 75.9 58.6 48.3 24.1 Often/ Usually 17.2 37.9 48.3 72.4 % of SOCIAL WORKER SUPERVISORS Rarely/ Occasionally 33.3 44.4 44.4 5.6 Often/ Usually 61.1 50.0 50.0 88.9 To comply with federal law, the Advisory Committee recommended that the requirement for a reasonable efforts determination be incorporated in the state statutes. The Court Assessment Program has begun implementation of this recommendation by proposing legislation in the upcoming session. The proposed legislation inserts the requirement into the statute that currently governs all abuse and neglect petitions. The lack of findings, however, was not the sole issue regarding reasonable efforts. Respondents believed that some judges required efforts beyond what was reasonable and which put the child in an unsafe situation. Respondents were concerned that efforts toward reunification outweighed what was in the child's best interest. When asked as to what changes are necessary to improve the process, one county attorney responded that the system should "[s]tart with best interest [of the child]' being paramount to reunification' or other concepts bearing more on policies rather than child health, safety and welfare." Efforts toward reunification, however, were not intended to be contrary to child welfare. While a parent's right to legal custody must be determined prior to consideration of the child's best interest, the integrity of the family unit is the base upon which parental rights exist. Thus, the relationship between reunification, within reason, and child welfare is symbiotic. Nevertheless, the advisory committee recognized that the courts were inconsistent in defining what efforts were reasonable. To develop a better understanding of what was considered reasonable, the recommendation was made that the Court Assessment Program request speakers as were offered from the ABA Center on Children and the Law to present standards of reasonable efforts at the judicial conference. Additionally, the advisory committee recommended that the Court Assessment Program promote discussion between all individuals who are involved in litigation of child abuse and neglect cases regarding what constitutes reasonable efforts. Local discussions shall be developed in other areas as well so that at least one area of interest will draw the group together and subsequent issues can then be discussed. VI. JUDICIAL OVERSIGHT DPHHS develops written treatment plans in those cases where the agency is involved with the family for an extended period of time or when the state is seeking involuntary termination of parental rights. The court may approve the treatment plan in the first instance and is required to approve the treatment plan in the second. The treatment plan includes activities such as regular visits with the child, regular appointments with the social worker, obtaining adequate housing, attending alcohol or drug treatment sessions at mental health or AA, participating in employment counseling or job training, attending parenting classes, regular meetings with a therapist, and paying support to assist in meeting child's needs while in foster care. According to national guidelines, courts should have the authority to determine what services are being provided to abused and neglected children and their families, specify where foster children are to be placed, and set the terms of visitation. This authority is based upon the contention that each decision has constitutional overtones, and "[w]ithout procedural protection, decisions touching on these issues could be instruments of discrimination or oppression." As the following data indicates, most judges in Montana rarely issue orders or make recommendations addressing these issues. HOW OFTEN DO JUDGES ISSUE ORDERS OR MAKE RECOMMENDATIONS ADDRESSING: WHICH FOSTER OR GROUP FACILITY A CHILD IS TO BE PLACED WHAT SERVICES SHOULD BE PROVIDED VISITATION % OF JUDGES Rarely/ Occasionally 89.7 65.5 55.2 Often/ Usually 10.3 34.5 44.8 % OF COUNTY ATTORNEYS Rarely/ Occasionally 71.4 50.0 47.6 Often/ Usually 21.4 42.9 45.2 % OF PARENTS' COUNSEL Rarely/ Occasionally 79.3 55.2 44.8 Often/ Usually 20.7 44.8 55.2 The categories for the individual respondents do not always total 100% because some of the respondents did not answer the question. The table does not report the missing responses. Some judges assert that it is appropriate for courts to defer to the department's expertise in these matters because of the social workers' experience and education. The Advisory Committee, however, concluded that the court must maintain its obligation to oversee the appropriateness of placements, treatment plans and the services provided therein. Accordingly, the committee recommended that judicial conferences include training regarding the reasons why their decisions should include specific determinations on issues of placement, services and visitation. However, even if courts attempt to effectively review treatment plans, nearly 60% of the judges stated that they only rarely or occasionally receive information about the available services. One judge reported that while he often orders parents to take parenting classes, he does not actually know what those classes entail. Judges tend to rely exclusively on the social worker to recommend appropriate services as part of the parents' treatment plan. While the social worker's position is to provide an expert's opinion, judicial oversight becomes meaningless if the judge is not informed by opposing counsel or by independent knowledge of the treatment plan's content and appropriateness. As for opposing counsel, over half of the parents' counsel who responded to the questionnaire report they only rarely or occasionally receive information from service providers or DPHHS regarding what services are available to families in the community. Parents' counsel are, therefore, unable to effectively challenge the appropriateness of a treatment plan. The Advisory Committee, recognized that the social workers, in a majority of cases, do not have the time or resources to advise the court and opposing counsel of the multitude of changing services. The committee therefore recommended that a system be developed which would require the minimum of department involvement and would provide access to resource directories to participants in child abuse/neglect litigation. To implement this recommendation, the Court Assessment Program has begun discussion with the director of the State Law Library to develop a link to the State Law Library home page. The proposed system would require DPHHS to send, on a regular basis, a copy on word perfect of new and discontinued services to the law library who would update the service category of its home page. Interested parties could then access the page on the Internet or could call the State Law Library and request a copy of the relevant services be sent to them. The clerk of court, county attorney, or judge would inform interested parties of these options. VII. REVIEW HEARINGS A. Six-Month Review Hearings According to the requirements of the Adoption Assistance and Child Welfare Act of 1980, courts or an administrative body are required to review the case of each child in foster care at least once every six months. During the six month reviews, the administrative body is to determine whether: the current case plan is still adequately governing the case; the current placement is still appropriate; and whether the case is adequately progressing so that children spend as short a time as necessary in foster care. Currently the federally mandated six month review hearings are being held by two administrative bodies, the Foster Care Review Committees (FCRC) which are administered by the Department of Public Health and Human Services, and the Citizen Review Boards (CRB) which are administered by the Montana Supreme Court's Office of the Court Administrator. CRB was created in response to a legislative concern that the agency reviews were not as rigorous as they should be. Accordingly, the 1993 legislature created a pilot CRB program which is currently conducting the reviews in three counties. Prior to the evaluation process, the Court Assessment Program became aware that some members of the legal system had no knowledge that the FCRC or CRB existed. To obtain an understanding as to how many participants were uniformed about the administrative review process, the questionnaires queried the various players about their knowledge of the administrative bodies. As the following results indicate, approximately one-third of the judges, and over one-half of the county attorneys responded that administrative bodies were not conducting reviews. ARE THERE FORMS OF REVIEW OTHER THAN COURT REVIEWS WHICH ARE CONDUCTED BY FOSTER CARE REVIEW COMMITTEES, CITIZEN REVIEW BOARDS, OR OTHER ENTITIES YES NO % OF JUDGES 62.1 34.5 % OF COUNTY ATTORNEYS 38.1 52.4 % OF PARENTS' COUNSEL 72.4 27.6 % OF SOCIAL WORKER SUPERVISORS 94.4 0 The categories for the individual respondents do not always total 100% because some of the respondents did not answer the question. The table does not report the missing responses. Both the FCRCs and the CRBs are required to submit written recommendations to the court for each case they review. However, the file review data revealed that in 70% of the cases there was no evidence of a FCRC report. The data from the FCRC questionnaire responses supports this finding as the FCRC respondents indicated that the FCRC does not prepare written reports for submission to the court in every case. Rather, the data demonstrates that written reports to the court are submitted in approximately 60% of the cases reviewed. The CRBs, on the other hand, indicated that they submitted written reports to the court in 100% of the cases. The assessment data illustrated three other primary differences between the two systems. First, the CRB distributes materials concerning each case approximately ten to fourteen days before the review, while FCRC distributes materials at the reviews. The advisory committee did have some concern about confidential materials being mailed to the committee members, but after learning CRB's procedure for collecting and destroying all previously distributed materials after each review, they recommended that materials for all reviews be distributed ahead of time. Second, FCRC reviews are held at the agency's offices and CRB hearings are held in a neutral setting. The advisory committee recommended that all reviews be conducted off of the agency premises so that the review is not overshadowed by the agency's presence. Third, and the most contested difference between the two review bodies, concerns the method of deliberations the review bodies employ when making their recommendations. Only CRB members are present during deliberations regarding their recommendations to the court. FCRC deliberations on the other hand are open to everyone who is present at the review. While the advisory committee extensively discussed the merits of both open and closed deliberations they did not reach a conclusion regarding which system would provide the most effective means for review. Although the CRB and the FCRC do not review the same cases, the committee did conclude it was not practical to have two administrative review bodies conducting reviews. The committee therefore recommended that the Court Assessment Program continue evaluating the two review bodies to come up with a recommendation for a single system. To implement this recommendation, the Court Assessment Program will: 1. Observe both FCRC and CRB reviews, to determine the thoroughness and quality of the reviews; 2. Interview judges, county/deputy county attorneys, and parents' counsel who have had both systems operating in their judicial districts to determine what system they believe is most effective in conducting reviews, and 3. Conduct interviews of members of both review bodies to learn what they feel are the strengths and weaknesses of their systems. B. Review Hearings After Termination According to  41-3-610, MCA, courts are required to hold a review hearing within 180 days after terminating the legal parent child relationship. At this hearing, the court is to determine whether the child has been permanently placed. The statute is meant to be a safeguard so that children who are legally free for adoption are not being raised in temporary foster care. The assessment data evidences that these hearings are not being held as required. HOW OFTEN ARE COURT REVIEWS HELD AFTER TERMINATION OF PARENTAL RIGHTS PROCEEDINGS AND PRIOR TO ADOPTION RARELY/ OCCASIONALLY OFTEN/ USUALLY % OF JUDGES 58.6 34.5 % OF COUNTY ATTORNEYS 38.1 28.6 % OF PARENTS' COUNSEL 69.0 10.3 % OF SOCIAL WORKERS SUPERVISORS 44.4 27.8 The categories for the individual respondents do not always total 100% because some of the respondents did not answer the question. The table does not report the missing responses. As a means of ensuring that the review hearings are held as required, the advisory committee recommended that the Court Assessment Program attend the next county attorney association meeting and judges conference to remind the attorneys and judges of the necessity and usefulness of the post termination hearings. The Court Assessment Program will also send a follow-up memo to reiterate the statutory requirement of holding post termination hearings. VIII. INDIAN CHILD WELFARE ACT A. Background The Indian Child Welfare Act was drafted in response to a comprehensive study which revealed that 25-35% of all American Indian children were placed in either foster, adoptive or institutional care. The study showed that the Indian family faced a greater risk of unwarranted separation than any other in our society. In an attempt to prevent the unwarranted breakup of Indian and Native families, Congress passed the Indian Child Welfare Act to provide minimum standards for the removal of Indian children from their families and the placements of such children in foster or adoptive homes which reflect the unique values of Indian culture. Montana has seven Indian Reservations and ten tribes. It seems to follow then that most Montana judges and attorneys would regularly deal with ICWA cases. However, the number of cases involving Indian children varies greatly between the judicial districts. Judges who are seated in judicial districts located near Indian reservations or in the larger urban areas hear many more cases involving Indian children than those located in rural areas distant from Indian reservations. For example, a judge who is seated in a judicial district which is located near a reservation may hear as many as 100 cases involving Indian children per year, while a judge from a judicial district located in the central part of the state may not hear a single case involving an Indian child in any given year. With this great disparity in the number of cases involving Indian children between the judicial districts, the training needs are unique; those who regularly handle ICWA cases certainly need to be familiar with the Act's requirements. However, it is also essential to train those who do not routinely handle cases involving Indian children to ensure compliance with the Act. To determine whether the requirements of the Act are being followed in Montana's District courts, the assessment evaluated to what extent the participants in the child welfare system are familiar with ICWA. HOW FAMILIAR WOULD YOU SAY YOU ARE WITH THE TERMS AND REQUIREMENTS OF ICWA. VERY FAMILIAR SOMEWHAT FAMILIAR NOT FAMILIAR % OF JUDGES 34.5 48.3 17.2 % OF COUNTY ATTORNEYS 14.3 38.1 45.2 % OF PARENTS' COUNSEL 27.6 37.9 34.5 % OF SOCIAL WORKER SUPERVISORS 77.8 16.7 5.6 The categories for the individual respondents do not always total 100% because some of the respondents did not answer the question. The table does not report the missing responses. The data indicates that while the majority of the social work supervisors have knowledge of the act, too few judges and attorneys are very knowledgeable about the Act. The assessment found that the principal problem surrounding ICWA issues is the court system participants' lack of knowledge regarding the requirements of the Act. Education is critical in order for the participants to correctly follow the requirements of the Act. Training should follow a two-prong approach. First, the participants need to understand the tribal perspective regarding ICWA and how cultural issues impact the mandates of the Act. Second, the participants should receive instruction regarding the technical requirements of the Act. To implement the educational recommendation, the Court Assessment Program is working in conjunction with the Department of Public Health and Human Services, and the W.K. Kellogg Foundation's Families for Kids Project to fund local training in the state. While the ICWA proposal is still in the drafting stage, it appears as if local training will be offered at twelve separate sites across Montana. A facilitator will travel to the sites to provide technical training regarding the specific requirements of the Act. In addition, tribal representatives will be invited to all of the trainings to share their perspective on how they respond to ICWA notices, what is working between the state court system and their tribe, and what could be improved. B. Notice Requirement ICWA requires that in any "child custody proceedings" notice be sent to the child's tribe if known, or the local Bureau of Indian Affairs (BIA) office if the tribe cannot be ascertained. Of the 400 file reviews examined during the site visits, 66 of the cases involved Indian children. In evaluating these cases the reviewers examined whether notice was sent to the child's tribe and reported that notice was sent in 92.4 % of the cases. C. Jurisdiction The Indian Child Welfare Act establishes exclusive jurisdiction in the tribal court for child welfare proceedings concerning an Indian child "who resides or is domiciled within the reservation of such tribe." If the child is not residing or domiciled on the reservation, the state court shall transfer jurisdiction to the tribal court in absence of good cause to the contrary. The tribal court may decline the transfer of jurisdiction. Both the statewide survey and the file review portions of the assessment examined how many cases brought in state court were transferred to tribal courts. The questionnaire statistics indicate that approximately 25% of the cases are transferred, while approximately one-half of the file review cases involving Indian children were transferred to tribal court. The data also indicates that the primary reason a case is not transferred is because the tribe declined jurisdiction. WHAT PERCENTAGE OF CASES INVOLVING INDIAN CHILDREN IN YOUR COUNTY/JUDICIAL DISTRICT ARE TRANSFERRED TO TRIBAL COURT JUDGES 24.05 COUNTY ATTORNEYS 23.18 PARENTS' COUNSEL 25.24 SOCIAL WORKER SUPERVISORS 26.6 WHEN A CASE INVOLVING AN INDIAN CHILD IS NOT TRANSFERRED TO TRIBAL COURT, IN WHAT PERCENTAGE OF CASES IS THAT BECAUSE: TRIBE DECLINED JURISDICTION PARENTS OPPOSED TRANSFER GOOD CAUSE NOT TO TRANSFER JUDGES 56.35 31.62 11.16 COUNTY ATTORNEYS 79.6 22.4 17.55 PARENTS' COUNSEL 57.0 24.44 29.09 After reviewing the data, the advisory committee recommended that both the state and tribal court systems should be educated about the issues surrounding the tribes' right of jurisdiction. The training should also stress the importance of early notification to the tribe and early tribal intervention so that a child's path to permanency is not delayed by either court system. D. Placement of Indian Children The Indian Child Welfare Act also establishes preferences for the placement of Indian children into foster care, preadoptive and adoptive care. Placement preferences for foster and pre-adoptive care shall be given to: 1. A member of the child's extended family. 2. A foster home licensed, approved, or specified by the child's tribe. 3. An Indian foster home licensed or approved by an authorized non-Indian licensing authority. 4. A children's institution approved by the tribe or operated by an Indian organization. The assessment data revealed that many Indian children are not being placed with members of the child's tribe. At this point it appears that one reason children are not being placed with members of their tribe is due to a shortage of Indian foster homes. However, further study is needed to determine the reasons behind the shortage of tribal foster homes. E. Legislative Changes Currently, neither Montana's adoption or child abuse and neglect statutes reference ICWA. Upon the request of the advisory committee, legislation will be introduced during the 1997 legislative session, which specifically denotes that child abuse and neglect and adoption proceedings are subject to the Indian Child Welfare Act. IX. MONTANA ADOPTION LAWS A. Background The 1995 Montana Legislature directed the Department of Public Health and Human Services to review Montana's adoption statutes, the proposed Uniform Adoption Act (UAA), and the adoption laws of other states to make a recommendation on any changes which should be made to Montana's law. After soliciting public participation, the Department appointed a citizen task force which has met regularly and worked on this charge since July of 1995. The task force consisted of various adoption professionals, attorneys versed in the area of adoption law and a representative from the Court Assessment Program. At the completion of its review, the task force concluded that Montana's current statutes have a number of strengths over the UAA and other state statutes which were reviewed because they provide greater protections. However, Montana's current statutes also have a number of weaknesses. One major weakness is the current piecemeal arrangement of Montana's statutes and the difficulty of following them in a logical manner, particularly with regard to direct parental placement adoptions. Additionally, several statutes which apply to termination of parental rights have conflicting or inconsistent standards. Finally, it was clear from the parties who have been regularly involved with adoptions in Montana that an inordinate amount of time is spent attempting to terminate the parental rights of unmarried fathers who have not chosen to come forward and take responsibility for their children. The requirements under current law to make that effort is overly burdensome in light of consistent holdings by the United States Supreme Court and the highest courts of other states that an unmarried birth father has only an inchoate parental interest which does not ripen into a vested right until he takes affirmative steps to exercise responsibility for the child and to establish a substantial relationship with the child. Based upon the above review and conclusions, the task force redrafted the current statutes to address these and other concerns. The proposed legislation will repeal the existing statutes and will create entirely new statutes. Many of the new statutes are sections taken verbatim from the old statutes or are slightly modified sections of old statutes. Other provisions, as discussed below, have been borrowed from other states or the UAA or have been drafted particularly to fit a need the task force identified. The major changes in the proposed legislation are that it: 1. Establishes a logical organization for Montana's adoption laws, in particular those concerning direct parental placement of children for adoption; 2. Establishes a putative father registry; 3. Provides one consistent set of standards that are located together on such topics as grounds for termination; and 4. Protects the rights of each party to the adoption by the mechanisms discussed below. B. Putative Father Registry The proposed legislation creates a putative father registry as a means of allowing an unmarried father to protect his right to receive notice of any proceedings in which his child may be the subject of an adoption. Any man who wishes to protect his interest in a child he may have conceived with a woman to whom he is not married has the duty to act affirmatively toward that child. In order to receive notice of any proceedings, he must simply register with the department. A man who has engaged in sexual relations with a woman to whom he is not married may register without actual knowledge that a pregnancy has occurred or has continued through the gestational period. Once notice of an adoption proceeding is filed, the putative father must appear at the hearing scheduled for termination of parental rights and be prepared to make a showing of how he has established a substantial relationship with the child to the extent his attempts to do so were not thwarted by another person. If a putative father fails to register with the department and the child becomes the subject of an adoption proceeding, any putative father will be precluded from attempting to establish paternity in a different proceeding and the adoptive placement will not be disturbed. The legislation will provide for adequate advertising of the registration process. Notice of the purposes and requirements for registering with the registry will be posted at all hospitals, county welfare and health offices and at drivers' examiner stations. Additionally, for a two year period, notice will be provided in writing by the Registrar of Motor Vehicles when any person registers a vehicle. C. Voluntary Termination of Parental Rights The rights of individuals who choose to parent a child by providing timely and consistent support and care should be assiduously guarded. In order to ensure that a decision to voluntarily terminate parental rights is made voluntarily, the protections afforded by current Montana law are maintained. Those protections make invalid any relinquishment executed by a birth mother less than 72 hours after the birth of the child. There is no maximum amount of time in which the parent must make a decision to relinquish. The parent can take days, weeks, months or years before deciding to place a child for adoption. The proposed statutes set out in detail the information which should be included in a relinquishment and consent to adopt in order to demonstrate that it was executed voluntarily. In addition, the proposed legislation requires counseling for birth mothers who are relinquishing their parental rights, unless counseling is waived by the court. It also encourages any other parent placing a child for adoption to have counseling before executing a relinquishment. The new legislation also requires legal representation for minor parents seeking to place a child through a direct parental placement adoption. The attorney representing the minor parent cannot be the same attorney that is representing the adoptive parents. Both the counseling and legal fees are allowable expenses that can be paid by the adoptive parents. One last set of safeguards for voluntary relinquishments concerns those executed for a direct parental placement. In a direct parental placement, the relinquishment and consent to adopt will not be valid until the placing parent has been provided with a copy of the prospective adoptive parent's preplacement evaluation. Finally, in a direct parental placement, the placing parent will be entitled to notification if the petition to adopt is denied and will have an opportunity to regain custody of the child if circumstances would otherwise permit that parent to have custody of the child. Voluntary relinquishments cannot be conditioned upon compliance with any visitation or other agreements executed between the parties. They can, however, be conditioned upon termination of other parent's rights or, as noted above, denial of the petition for adoption. D. Involuntary Terminations The proposed statutes gather together and provide general categories for the grounds upon which a parent's rights to a child may be involuntarily terminated for purposes of an adoption proceeding. The current statutes have such provisions scattered through several titles and chapters of the Montana Code Annotated. The current standards for termination for adoption proceedings are confusing because they try to address every possible scenario. In some instances they appear to conflict (i.e., in some instances they use a simple "best interest of the child" standard and in most others rely upon unfitness to parent standards, though with differing evidentiary standards that must be met). The proposed legislation will allow termination of parental rights based upon: 1. The voluntary acts of the parent in making the child available for adoption; 2. An involuntary termination based upon unfitness; 3. An act such as a failure to appear in the adoption proceeding that will constitute an irrevocable waiver of parental rights; or 4. A determination that no relationship of parent and child exists. E. Expediency A challenge to any termination of parental rights for purposes of placing a child for adoption or to any final decree must be handled with the greatest degree of expediency possible. Accordingly, the proposed legislation requires that these challenges take precedence over other cases before the court. F. Records The proposed legislation clarifies that anyone who is adopted after the effective date of the legislation is entitled to a copy of his or her original birth certificate upon reaching the age of 18. It also makes very minor changes to Montana's current confidential intermediary statute by allowing the parties to exchange identifying information without court order before the child reaches age 18 if all the parties consent. G. Brokering/Advertising The proposed legislation also clarifies current law on advertising and baby brokering to expressly limit advertising connected with adoptions. Only licensed nonprofit child placing agencies are allowed to advertise the availability of a child for adoption or the availability of adoptive parents without facing civil and criminal sanctions. X. RECOMMENDATIONS/IMPLEMENTATION PLAN The Court Assessment Advisory committee developed the recommendations which are contained throughout this report. The following chapter codifies the recommendations and the plans for implementing the recommendations. Some of the plans for implementation are still in the conception stage while others are in the process of being developed. Many of the recommendations call for education of all the legal system's participants. In that regard, Montana is fortunate to have relatively few judges, attorneys, and social workers so that it is therefore possible to provide training for nearly all of the key participants. A. Case Management 1. Limiting Continuances Educate all participants in the legal system regarding the need to limit continuances to those instances when it is absolutely necessary. Educate judges about the need to inform parents of the importance of attending all court hearings. 2. Information Management Determine the feasibility of access between the Montana Judicial Case Management system and DPHHS' automated case management system. Determine what information should be shared between the court and DPHHS. B. Representation 1. Representation of Children Assist the Lewis and Clark County public defender in developing a CASA program. Assistance would include soliciting and interviewing CASA candidates, training those who are chosen and organizing a process by which the public defender may operate the program with minimal resources of both time and money. Compile a resource book for other counties within the State of Montana to use in starting their own programs. Propose legislation to state that GALs represent the child's "best interest." Include a definition of "best interest of the child" as it pertains to the child abuse and neglect statutes. 2. Representation of Parents Educate judges regarding the significance of appointing parents' counsel early in the process where the parent does not respond affirmatively to the state's intervention. Continue to study whether the appointment of parents' counsel at an earlier stage affects the length and total cost of an individual case. If further study demonstrates that earlier appointment of parents' counsel is cost and time effective, submit an analysis of the need for earlier appointments to the state legislature to ask for additional funding to hire parents' counsel in child abuse and neglect cases. 3. Representation of DPHHS Review grant options in addition to funding sources pursuant to Title IV-E of the Social Security Act to help pay for attorneys' representing DPHHS in child abuse and neglect cases. The results of this review will be used to assist DPHHS and counties in developing additional resources for representation in child abuse and neglect cases. Amend child abuse and neglect statutes to clarify the burden of proof requirements at each stage to address the inconsistency of DPHHS's representation. Encourage DPHHS to provide ongoing training for judges and county attorneys at the state multi-disciplinary meeting; and to provide training to county attorneys regarding the changes in the child abuse and neglect statutes at the county attorneys conferences in order to establish standardized practices regarding when the county attorneys should proceed with a case. 4. Law School Course/Clinical Program Collaborate with the law school to determine how the law school may offer a child advocacy class or clinical program. C. Consistency in the Courts' Handling of Child Abuse and Neglect Cases 1. Statutory Changes Submit proposed statutory changes to the 1997 legislature to clarify the existing law and provide time lines for temporary orders. 2. Timely Preliminary Hearings Examine the feasibility of using a telecommunication interactive video system for rural sites to allow the court to conduct show cause hearings in a shorter time period. 3. Magistrates/Special Masters Expand the magistrate/special master system in order to provide assistance in nondispositive issues by submitting a recommendation to the Montana Supreme Court to revise Rule 53, M.R.Civ.P., to allow the use of special masters in more than exceptional circumstances. Investigate resources to fund the initial development of magistrates, and work with judicial districts desiring magistrates to approach the 1999 legislature for continued funding. D. Reasonable Efforts 1. Reasonable Efforts Findings Incorporate into Montana statutes the requirement that the court make a finding regarding whether the agency made reasonable efforts to rehabilitate the family to prevent the child's removal from the home. 2. Reasonable Efforts Training Request speakers offered from the ABA Center on Children and the Law to present standards of reasonable efforts at the 1997 spring or fall judicial conference. Promote discussion between all individuals who are involved in litigating child abuse and neglect cases regarding what constitutes reasonable efforts. E. Judicial Oversight 1. Addressing Specific Services in Orders Educate the judges regarding their obligation to oversee the appropriateness of placements, treatment plans and the services provided therein. Develop and regularly update a home page at the state law library which includes a list of new and discontinued services available for children and families. Interested parties could access the home page via the Internet or could call the State Law Library and request a copy of the relevant services be sent to them. F. Review Hearings 1. Six Month Review Hearings Evaluate the two review bodies to come up with a recommendation for a single system. The evaluation will include: a. Observing both FCRC and CRB reviews to determine the thoroughness and quality of the reviews; b. Interviewing judges, county/deputy county attorneys, and parents' counsel who have had both systems operating in their judicial districts to determine what system they believe is most effective in conducting reviews, and c. Interviewing members of both review bodies to learn what they feel are the strengths and weaknesses of their systems. 2. Post Termination Reviews Attend the next county attorney association meeting and judges conference to remind the attorneys and judges of the statutory requirement of holding review hearings after termination. G. Indian Child Welfare Act 1. Education Work in conjunction with DPHHS and the W.K. Kellogg Foundation's Families for Kids Project to fund local ICWA training at twelve sites across the state. A facilitator will travel to the sites to provide technical training regarding the specific requirements of the act. In addition, tribal representatives will be invited to all of the training to share their perspective on how they respond to ICWA notices, what is working between the state court system and their tribe, and what could be improved. 2. Statutory Reference Propose legislation during the 1997 legislative session which specifically denotes that child abuse and neglect and adoption proceedings are subject to the Indian Child Welfare Act. H. Proposed Adoption Legislation 1. Statutory Changes Propose legislation during the 1997 legislature to amend Montana adoption laws as follows: a. Establish a logical organization for the statutes. b. Establish a putative father registry. c. Provide for one consistent set of standards for termination of parental rights for adoption proceedings. XI. CONCLUSION The Court Assessment Program has identified many areas where Montana's legal system could improve the handling of child abuse and neglect proceedings. With the assistance of the advisory committee, the program will pursue implementing the recommendations during 1997 and 1998. As is indicated in the report, some of the recommended changes will require additional funding. While the Court Assessment Program is committed to making a difference in the lives of Montana's foster children, it is also cognizant of the fact of financial constraints. With this reality in mind, the program has identified and began implementing changes which will improve the administration of justice in child abuse and neglect cases which are financially obtainable. The program will seek other funding sources for those changes where funding in not currently available. The next two years presents an opportunity for change and we are encouraged that even seemingly small improvements will positively impact the court process. As one of the advisory committee members recently stated, "I believe the program has already made a difference because those involved in the process are putting to use what they have learned. By educating our peers about how improvements to the court system will improve the lives of foster children, we will make a change to Montana's foster care system one person at a time." APPENDIX AN ACT GENERALLY REVISING CHILD ABUSE AND NEGLECT LAWS; DEFINING BEST INTERESTS OF THE CHILD; PROVIDING FOR A PERMANENCY PLAN HEARING; AMENDING SECTIONS 40-8-111, 41-3-102, 41-3-202, 41-3-204, 41-3-303, 41-3-401, 41-3-403, 41-3-404, 41-3-406, 41-3-607, 41-3-609, 41-4-102, AND 41-5-530, MCA; REPEALING SECTIONS 41-3-410 AND 41-3-603, MCA; AND PROVIDING AN APPLICABILITY DATE. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA: Section 1. Section 40-8-111, MCA, is amended to read: "40-8-111. Consent required for adoption. (1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by: (a) both parents, if living, or the surviving parent of a child, provided that consent is not required from a father or mother: (i) adjudged guilty by a court of competent jurisdiction of assault on a child, as provided in 45-5-201; sexual assault on a child, as provided in 45-5-502; sexual intercourse without consent, as provided in 45-5-503, if the victim was a child; incest, as provided in 45-5-507, if the victim was a child; endangering the welfare of children, concerning a child, as provided in 45-5-622; sexual abuse of children, toward a child, as provided in 45-5-625; or ritual abuse of a minor, as provided in 45-5-627; (ii) who has been judicially deprived of the custody of the child on account of cruelty or neglect toward the child; (iii) who has, in the state of Montana or in any other state of the United States, willfully abandoned the child, as defined in 41-3-102(7)(e)(8)(e); (iv) who has caused the child to be maintained by any public or private children's institution, any charitable agency, or any licensed adoption agency or the department of public health and human services of the state of Montana for a period of 1 year without contributing to the support of the child during that period, if able; (v) if it is proved to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption; or (vi) whose parental rights have been judicially terminated; (b) the legal guardian of the child if both parents are dead or if the rights of the parents have been terminated by judicial proceedings and the guardian has authority by order of the court appointing the guardian to consent to the adoption; (c) the executive head of an agency if the child has been relinquished for adoption to the agency or if the rights of the parents have been judicially terminated or if both parents are dead and custody of the child has been legally vested in the agency with authority to consent to adoption of the child; or (d) any person having legal custody of a child by court order if the parental rights of the parents have been judicially terminated. In that case, the court having jurisdiction of the custody of the child shall consent to adoption and a certified copy of its order must be attached to the petition. (2) The consents required by subsections (1)(a) and (1)(b) must be acknowledged before an officer authorized to take acknowledgments or witnessed by a representative of the department of public health and human services or of an agency or witnessed by a representative of the court." 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 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 staff 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 legally responsible for the child's welfare in a residential setting. (2) "Abused or neglected" means the state or condition of a child who has suffered child abuse or neglect. (3) (a) "Adequate health care" means any medical care, 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 guardian, due to religious beliefs, does not provide medical 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 or substantial risk of serious harm to the child. (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. (4) "Best interests of the child" means the physical, mental, and emotional conditions and needs of the child and any other factor considered by the court to be relevant to the child. (4)(5) "Child" or "youth" means any person under 18 years of age. (5)(6) (a) "Child abuse or neglect" means: (i) harm to a child's health or welfare; or (ii) threatened harm to a child's health or welfare. (b) The term includes harm or threatened harm to a child's health or welfare by the acts or omissions of a person responsible for the child's welfare. (6)(7) "Department" means the department of public health and human services provided for in 2-15-2201. (7)(8) "Harm to a child's health or welfare" means the harm that occurs whenever the parent or other person responsible for the child's welfare: (a) inflicts or allows to be inflicted upon the child physical or mental injury; (b) commits or allows to be committed sexual abuse or exploitation of the child; (c) induces or attempts to induce a child into giving untrue testimony that the child or another child was abused or neglected by a parent or person responsible for the child's welfare; (d) causes 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; (e) abandons the child by leaving the child under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or willfully surrenders physical custody for a period of 6 months and during that period does not manifest 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; or (f) is unknown and has been unknown for a period of 90 days and reasonable efforts to identify and locate the parents parent or other person have failed. (8)(9) "Limited emancipation" means a status conferred on a youth by a court after a dispositional hearing in accordance with 41-3-406 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. (9)(10) "Mental injury" means an identifiable and substantial impairment of the child's intellectual or psychological functioning. (10)(11) "Parent" means a biological or adoptive parent or stepparent. (12) "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 40-6-135, 40-6-234, 40-8-109, 40-8-117, or part 6 of this chapter. (11)(13) "Physical injury" means death, permanent or temporary disfigurement, or impairment of any bodily organ or function. The term includes death, permanent or temporary disfigurement, and impairment of a bodily organ or function sustained as a result of excessive corporal punishment. (12)(14) (a) "Sexual abuse" means the commission of sexual assault, sexual intercourse without consent, indecent exposure, deviate sexual conduct, or incest, as described in Title 45, chapter 5, part 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. (13)(15) "Sexual exploitation" means allowing, permitting, or encouraging a child to engage in a prostitution offense, as described in 45-5-601 through 45-5-603, or allowing, permitting, or encouraging sexual abuse of children as described in 45-5-625. (14)(16) "Social worker" means an employee of the department who, prior to before the employee's field assignment, has been educated or trained or is receiving education or training in a program of social work or a related field that includes cognitive and family systems treatment or who has equivalent verified experience or verified training in the investigation of child abuse, neglect, and endangerment. This definition does not apply to any provision of this code that is not in this chapter. (15)(17) "Threatened harm to a child's health or welfare" means substantial risk of harm to the child's health or welfare. (18) "Treatment plan" means a written agreement between the department and the parent or guardian or a court order that includes action that must be taken to resolve the condition or conduct of the parent or guardian that resulted in the need for protective services for the child. The treatment plan may involve court services, the department, and other parties, if necessary, for protective services. (16)(19) (a) "Withholding of medically indicated treatment" means the failure to respond to an infant's life-threatening conditions by providing treatment, including appropriate nutrition, hydration, and medication, that, in the treating physician's or physicians' reasonable medical judgment, will be most likely to be effective in ameliorating or correcting the conditions. (b) The term does not include the failure to provide treatment, other than appropriate nutrition, hydration, or medication, to an infant when, in the treating physician's or physicians' reasonable medical judgment: (i) the infant is chronically and irreversibly comatose; (ii) the provision of treatment would: (A) merely prolong dying; (B) not be effective in ameliorating or correcting all of the infant's life-threatening conditions; or (C) otherwise be futile in terms of the survival of the infant; or (iii) the provision of treatment would be virtually futile in terms of the survival of the infant and the treatment itself under the circumstances would be inhumane. For purposes of this subsection (16) (19), "infant" means an infant less than 1 year of age or an infant 1 year of age or older who has been continuously hospitalized since birth, who was born extremely prematurely, or who has a long-term disability. The reference to less than 1 year of age may not be construed to imply that treatment should be changed or discontinued when an infant reaches 1 year of age or to affect or limit any existing protections available under state laws regarding medical neglect of children over 1 year of age or older. (17)(20) "Youth in need of care" means a youth who is abused or neglected." Section 3. Section 41-3-202, MCA, is amended to read: "41-3-202. Action on reporting. (1) Upon receipt of a report, as required by 41-3-201, that a child is or has been abused or neglected, a social worker, the county attorney, or a peace officer shall promptly conduct a thorough investigation into the home of the child involved or any other place where the child is present, into the circumstances surrounding the injury of the child, and into all other nonfinancial matters that in the discretion of the investigator are relevant to the investigation. In conducting an investigation under this section, a social worker 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 federal assistance programs or to comply with the provisions of 41-3-406 [section 10]. (2) An initial investigation into the home of the child may be conducted when an anonymous report is received. However, the investigation must within 48 hours develop independent, corroborative, and attributable information in order for the investigation to continue. Without the development of independent, corroborative, and attributable information, a child may not be removed from the home. (3) The social worker is responsible for assessing the family and planning for the child. If the child is treated at a medical facility, 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 and has the right of access to relevant hospital and medical records pertaining to the child. If considered appropriate by the social worker, county attorney, or peace officer conducting an interview of the child, an employee of the public school attended by the child involved may participate in any interview of the child if the child is enrolled in kindergarten through 8th grade. (4) If the child's interview is videotaped, an unedited videotape with audio track must be made available, upon request, for unencumbered review by the family. (5) (a) If from the investigation it appears that the child suffered abuse or neglect, the department shall provide protective services to the child pursuant to 41-3-301 and may provide protective services to any other child under the same care. The department shall advise the county attorney and the child's family of its investigation. (b) If from the investigation it appears that the child has not suffered abuse or neglect and the initial report is determined to be unfounded, the department shall destroy all records concerning the report and the investigation. The destruction must be completed within 20 days of the determination that the child has not suffered abuse or neglect. (6) The investigating social worker, within 60 days of commencing an investigation, shall also furnish a written report to the department and, upon request, to the family. Subject to subsection (5)(b), the department shall maintain a record system containing child abuse and neglect cases. (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, its local affiliate, and the county attorney of the county in which the facility is located." Section 4. Section 41-3-204, MCA, is amended to read: "41-3-204. Admissibility and preservation of evidence. (1) In any proceeding resulting from a report made pursuant to the provisions of this chapter or in any proceeding for which the report or its contents are sought to be introduced into evidence, the report or its contents or any other fact related to the report or to the condition of the child who is the subject of the report may not be excluded on the ground that the matter is or may be the subject of a privilege related to the examination or treatment of the child and granted in Title 26, chapter 1, part 8, except the attorney-client privilege granted by 26-1-803. (2) Any person or official required to report under 41-3-201 may take or cause to be taken photographs of the area of trauma visible on a child who is the subject of a report. The cost of photographs taken under this section must be paid by the department. (3) When any person required to report under 41-3-201 finds visible evidence that a child has suffered abuse or neglect, the person shall include in the report either a written description or photographs of the evidence. (4) A physician, either in the course of providing medical care to a minor or after consultation with child protective services, the county attorney, or a law enforcement officer, may require x-rays to be taken when, in the physician's professional opinion, there is a need for radiological evidence of suspected abuse or neglect. X-rays may be taken under this section without the permission of the parent or guardian. The cost of the x-rays ordered and taken under this section must be paid by the county child protective service agency. (5) All written, photographic, or radiological evidence gathered under this section must be sent to the local affiliate of the department at the time that the written confirmation report is sent or as soon after the report is sent as is possible. If a confirmation report is not made, the evidence and the initial report must be destroyed as provided in 41-3-202(3)(b)(5)(b)." Section 5. Section 41-3-303, MCA, is amended to read: "41-3-303. Guardian ad litem. (1) In every judicial proceeding, the court shall appoint for any child alleged to be abused or neglected a guardian ad litem. The department or any of its staff may not be appointed as the guardian ad litem in a judicial proceeding under this title. When necessary the guardian ad litem may serve at public expense. (2) The guardian ad litem is charged with the representation of the child's best interests. The guardian ad litem has the following general duties: (a) to conduct investigations that the guardian ad litem considers necessary 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; and (f) to perform other duties as directed by the court." Section 6. Section 41-3-401, MCA, is amended to read: "41-3-401. Abuse and neglect petitions. (1) The county attorney, attorney general, or an attorney hired by the county is responsible for filing all petitions alleging abuse or neglect. The county attorney, the attorney general, or an attorney hired by the department with the written consent of the county attorney or the attorney general may require all state, county, and municipal agencies, including law enforcement agencies, to conduct the investigations and furnish reports that may be necessary. (2) Upon receipt of a petition, except a petition for temporary investigative authority, the court shall set a date for an adjudicatory hearing on the petition. The petitions must be given preference by the court in setting hearing dates. (3) A petition alleging abuse or neglect is a civil action brought in the name of the state of Montana. The Montana Rules of Civil Procedure apply except as modified in this part. Proceedings under a petition are not a bar to criminal prosecution. (4) The parents or parent, guardian, or other person or agency having legal custody of the youth named in the petition, if residing in the state, must be served personally with a copy of the petition and summons at least 5 working days prior to before the date set for hearing. If the person or agency cannot be served personally, the person or agency may be served by publication in the manner provided by the Montana Rules of Civil Procedure for other types of proceedings. (5) If personal service cannot be made upon the parents or parent, guardian, or other person or agency having legal custody, the court shall appoint an attorney to represent the unavailable party when in the opinion of the court the interests of justice require. (6) If a parent of the child is a minor, notice must be given to the minor parent's parents or guardian, and if there is no guardian the court shall appoint one. (7) Any person interested in any cause under this chapter has the right to appear. (8) Except when the proceeding is instituted or commenced at the request of the department of public health and human services, a citation must be issued and served upon a representative of the department prior to before the court hearing. (9) The petition must: (a) state the nature of the alleged abuse or neglect; (b) state the full name, age, and address of the youth and the name and address of the youth's parents or guardian or person having legal custody of the youth; (c) state the names, addresses, and relationship to the youth of all persons who are necessary parties to the action. (10) The petition may ask for the following relief: (a) temporary investigative authority and protective services, as provided in 41-3-402; (b) temporary legal custody, as provided in 41-3-406; (c)(c) termination of the parent-child legal relationship and permanent legal custody with the right to consent to adoption, as provided in 41-3-607; (d)(d) any combination of the provisions of subsections (10)(a) through (10)(c) (10)(c) or any other relief that may be required for the best interest interests of the youth child. (11)(11) The petition may be modified for different relief at any time within the discretion of the court. (12)(12) The court may at any time on its own motion or the motion of any party appoint counsel for any indigent party." Section 7. Section 41-3-403, MCA, is amended to read: "41-3-403. Order for immediate protection of youth. (1) (a) Upon the filing of a petition for temporary investigative authority and protective services, the court may issue an order granting relief that may be required for the immediate protection of the youth. (b) The order, along with the petition and supporting documents, must be served by a peace officer or a representative of the department on the person or persons named in the order. When the youth is placed in a medical facility or protective facility, the department shall notify the parents or parent, guardian, or other person having legal custody of the youth, at the time the placement is made or as soon after placement as possible. (c) The order must require the person served to comply immediately with the terms of the order or and to appear before the court issuing the order on the date specified and show cause why the person has not complied with the order for a show cause hearing. The show cause hearing must be conducted within 20 days of the issuance of the order by the judge or a master appointed by the judge. The person filing the petition has the burden of presenting evidence establishing probable cause for the issuance of the order. At the show cause hearing, the court shall provide an opportunity for a parent or guardian, if present, and any other person having relevant knowledge to provide relevant testimony. The court may consider all relevant evidence in accordance with the rules of civil procedure as modified by this part, but may in its discretion limit testimony and evidence to only that which is relevant to the issues of removal from the home and the child's need for continued protection. The court may amend the order. Except as otherwise provided in this part, the rules of civil procedure apply. Hearsay evidence of statements made by the affected youth is admissible at the hearing or at a contested case proceeding held pursuant to Title 2, chapter 4, part 6, that results from adverse licensing action taken by the department. (d) If the child is not returned home after the show cause hearing, the person served may request that a local citizen review board, if available pursuant to part 10, review the case within 30 days of the show cause hearing and make a recommendation to the district court as provided in 41-3-1010. (d)(e) Upon a failure to comply or show cause, the court may hold the person in contempt or place temporary legal physical custody of the youth with the department until further order. (2) In an order granting or denying relief, the court shall make a finding regarding the reasonableness of agency efforts to rehabilitate the family to prevent the child's removal from the home. (2)(3) The court may grant the following kinds of relief: (a) right of entry by a peace officer or department worker; (b) medical and psychological evaluation of the youth or parents, guardians, or person having physical or legal custody; (c) requirement that the youth, parents, guardians, or person having physical or legal custody receive counseling services; (d) placement of the youth in a temporary medical facility or a facility for protection of the youth; (e) requirement that the parents, guardian, or other person having physical or legal custody furnish services that the court may designate; (f) inquiry into the financial ability of the parents, guardian, or other person having custody of the youth to contribute to the costs for the care, custody, and treatment of the youth and requirement of a contribution for those costs pursuant to the requirements of 41-3-406(3) through (6) [section 10]; (g) other temporary disposition that may be required in the best interest interests of the youth that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined. (4) An order for temporary investigative authority and protective services may not be issued for a period longer than 90 days following the show cause hearing and must be limited to one extension of 90 days. Before the expiration of the time provided for in an order for temporary investigative authority and protective services, the county attorney, the attorney general, or an attorney hired by the county shall file a petition for one of the following: (a) limited emancipation; (b) temporary legal custody; (c) termination of the parent-child legal relationship and permanent legal custody with the right to consent to adoption; or (d) dismissal. (5) Notwithstanding the above time limits, the court may continue an order for temporary investigative authority pending a hearing on a petition provided for in subsection (4). (6) If the time limitations of this section are not met, the court shall review the reasons for the failure and order an appropriate remedy that considers the best interests of the child." Section 8. Section 41-3-404, MCA, is amended to read: "41-3-404. Adjudicatory hearing -- temporary disposition. (1) In the adjudicatory hearing on a petition under 41-3-401, 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. (2) The court shall hear evidence regarding the residence of the youth, the whereabouts of the parents, guardian, or nearest adult relative, and any other matters the court considers relevant in determining the status of the youth. (3) In all civil and criminal proceedings relating to abuse or neglect, none of the privileges related to the examination or treatment of the child and granted in Title 26, chapter 1, part 8, except the attorney-client privilege granted by 26-1-803 and the mediator privilege granted by 26-1-811, apply. (4) (a) If the court determines that the youth is not an abused or neglected child, the petition must be dismissed and any order made pursuant to 41-3-403 must be vacated. (b) If the court determines that the youth is an abused or neglected child the youth is adjudicated a youth in need of care, the court shall set a date for a dispositional hearing to be conducted within 30 days and order any necessary or required investigations. The court may issue a temporary dispositional order pending the dispositional hearing. The temporary dispositional order may provide for any of the forms of relief listed in 41-3-403(2)(3)." Section 9. Section 41-3-406, MCA, is amended to read: "41-3-406. Dispositional hearing -- contributions by parents or guardians for youth's care temporary legal custody. (1) If a youth is found to be a youth in need of care under 41-3-404, the court may enter its judgment, making any of the following dispositions to protect the welfare of the youth: (a) permit the youth to remain with the youth's parents parent or guardian, subject to those conditions and limitations the court may prescribe; (b) grant an order of limited emancipation to a youth who is 16 years of age or older as provided in 41-3-408; (c) transfer temporary legal custody to any of the following: (i) the department; (ii) a licensed child-placing agency that is willing and able to assume responsibility for the education, care, and maintenance of the youth and that is licensed or otherwise authorized by law to receive and provide care of the youth; or (iii) a relative or other individual who, after study is recommended by the department or a licensed child-placing agency designated by the court, and is found by the court to be qualified to receive and care for the youth; (d) order any party to the action to do what is necessary to give effect to the final disposition, including undertaking medical and psychological evaluations, treatment, and counseling that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined. (e) order further care and treatment as the court considers in the best interest interests of the youth child that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined pursuant to [section 10]. (2) To grant temporary legal custody, the court shall make a finding that: (a) returning the child to the child's parent or guardian would create a substantial risk of harm to the child or detriment to the child's physical or emotional well-being; and (b) reasonable services have been provided to the parent or guardian to prevent the removal of the child from the home. (3) In making a finding regarding the risk of harm to the child or regarding detriment to the child, failure of the child's parent or guardian to participate in, to comply with, in whole or in part, or to meet the goals of a court-ordered treatment plan constitutes prima facie evidence that return of the child to the parent or guardian would be detrimental to the child's physical or emotional well-being. (4) An order for temporary legal custody may be in effect for no longer than 6 months. Before the expiration of the order for temporary legal custody the county attorney, the attorney general, or an attorney hired by the county shall petition for one of the following: (a) an extension of temporary legal custody upon a showing that additional time is necessary for the parent or guardian to successfully complete a treatment plan; (b) termination of the parent-child legal relationship and permanent legal custody with the right of adoption pursuant to 41-3-607; or (c) dismissal. (5) The court may continue an order for temporary legal custody pending a hearing on a petition provided for in subsection (4). (6) If an extension of temporary legal custody is granted to the department, the court shall state the reasons why the child was not returned home and the conditions upon which the child may be returned home. (7) If the time limitations of this section are not met, the court shall review the reasons for the failure and order an appropriate remedy that considers the best interests of the child. (2) If the youth is transferred to the custody of the department, the court shall examine the financial ability of the youth's parents or guardians to pay a contribution covering all or part of the costs for the care, custody, and treatment of the youth, including the costs of necessary medical, dental, and other health care. (3) If the court determines that the youth's parents or guardians are financially able to pay a contribution as provided in subsection (2), the court shall order the youth's parents or guardians to pay an amount based on the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209. (4) (a) Except as provided in subsection (4)(b), contributions ordered under this section and each modification of an existing order are enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 4. An order for a contribution that is inconsistent with this section is nevertheless subject to withholding for the payment of the contribution without need for an amendment of the support order or for any further action by the court. (b) A court-ordered exception from contributions under this section must be in writing and be included in the order. An exception from the immediate income withholding requirement may be granted if the court finds that there is: (i) good cause not to require immediate income withholding; or (ii) an alternative arrangement between the department and the person who is ordered to pay contributions. (c) A finding of good cause not to require immediate income withholding must, at a minimum, be based upon: (i) a written determination and explanation by the court of the reasons why the implementation of immediate income withholding is not in the best interests of the child; and (ii) proof of timely payment of previously ordered support in cases involving modification of contributions ordered under this section. (d) An alternative arrangement must: (i) provide sufficient security to ensure compliance with the arrangement; (ii) be in writing and be signed by a representative of the department and the person required to make contributions; and (iii) if approved by the court, be entered into the record of the proceeding. (5) Upon a showing of a change in the financial ability of the youth's parents or guardians to pay, the court may modify its order for the payment of contributions required under subsection (3). (6) (a) If the court orders the payment of contributions under this section, the department shall apply to the department of public health and human services for support enforcement services pursuant to Title IV-D of the Social Security Act. (b) The department of public health and human services may collect and enforce a contribution order under this section by any means available under law, including the remedies provided for in Title 40, chapter 5, parts 2 and 4." Section 10. Contributions by parents or guardians for youth's care. (1) If custody of the youth is transferred to the department, the court shall examine the financial ability of the youth's parents or guardians to pay a contribution covering all or part of the costs for the care, custody, and treatment of the youth, including the costs of necessary medical, dental, and other health care. (2) If the court determines that the youth's parents or guardians are financially able to pay a contribution as provided in subsection (1), the court shall order the youth's parent or guardian to pay an amount based on the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209. (3) (a) Except as provided in subsection (3)(b), contributions ordered under this section and each modification of an existing order are enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 4. An order for a contribution that is inconsistent with this section is nevertheless subject to withholding for the payment of the contribution without need for an amendment of the support order or for any further action by the court. (b) A court-ordered exception from contributions under this section must be in writing and must be included in the order. An exception from the immediate income withholding requirement may be granted if the court finds that there is: (i) good cause not to require immediate income withholding; or (ii) an alternative arrangement between the department and the person who is ordered to pay contributions. (c) A finding of good cause not to require immediate income withholding must, at a minimum, be based upon: (i) a written determination and explanation by the court of the reasons why the implementation of immediate income withholding is not in the best interests of the child; and (ii) proof of timely payment of previously ordered support in cases involving modification of contributions ordered under this section. (d) An alternative arrangement must: (i) provide sufficient security to ensure compliance with the arrangement; (ii) be in writing and be signed by a representative of the department and the person required to make contributions; and (iii) if approved by the court, be entered into the record of the proceeding. (4) Upon a showing of a change in the financial ability of the youth's parent or guardian to pay, the court may modify its order for the payment of contributions required under subsection (2). (5) (a) If the court orders the payment of contributions under this section, the department shall apply to the department of public health and human services for support enforcement services pursuant to Title IV-D of the Social Security Act. (b) The department of public health and human services may collect and enforce a contribution order under this section by any means available under law, including the remedies provided for in Title 40, chapter 5, parts 2 and 4. Section 11. Permanency plan hearing. (1) A permanency plan hearing must be held by the court no later than 12 months after the initial order is issued 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. The permanency plan hearing may be combined with a hearing that is required in other sections of this part if held within the time limits of that section. If a permanency plan hearing is combined with another hearing, the requirements of the court related to the disposition of the other hearing must be met in addition to the requirements of this section. (2) 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 report must contain the: (a) efforts and progress demonstrated by the child's parent or guardian to complete a treatment plan; (b) extent to which the parent or guardian cooperated and used the services provided; (c) status of the child, including the child's mental, physical, and emotional health; and (d) plan for permanency for the child. (3) At least 3 days prior to the permanency plan hearing, an attorney or advocate for a parent or guardian may submit an informational report to the court for review. (4) If the court finds that the permanency plan is in the best interests of the child, the court shall: (a) order the department to take whatever steps are necessary to effectuate the terms of the plan and shall order the county attorney, the attorney general, or an attorney hired by the county to petition the court within 30 days after the present hearing for one of the following: (i) termination of parental rights; (ii) temporary legal custody, not to exceed 6 months; or (iii) dismissal; and (b) in its discretion, enter any other order that it determines to be in the best interests of the child that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined. (5) If the permanency plan hearing results in an order for a 6-month extension of temporary legal custody, upon the expiration of the temporary legal custody order and the filing of a petition by the department and if the court finds that reunification of the child with the child's parent or guardian is not in the best interests of the child, the court shall order: (a) termination of parental rights if the applicable requirements to terminate parental rights have been met; or (b) long-term custody of a child if the evidence demonstrates by a preponderance of the evidence that: (i) the child has been adjudicated a youth in need of care; (ii) the department has made reasonable efforts to reunite the parent and child, further efforts by the department would likely be unproductive, and reunification of the child with the parent or guardian would be contrary to the best interests of the child; (iii) the child has reached 12 years of age; (iv) termination of parental rights to the child is not in the child's best interests; and (v) the child has been in a placement in which the foster parent has committed to the long-term care and to a relationship with the child and it is in the best interests of the child to remain in that placement. (6) The court may terminate long-term custody upon petition of the birth parents, those to whom legal custody has been transferred, or the department if the court finds that the circumstances of the child or family have substantially changed and the best interests of the child are no longer being served. Section 12. Section 41-3-607, MCA, is amended to read: "41-3-607. Petition for termination -- separate hearing -- right to counsel -- no jury trial. (1) The termination of a parent-child legal relationship may be considered only after the filing of a petition pursuant to 41-3-401 alleging the factual grounds for termination pursuant to 41-3-609. If termination of a parent-child legal relationship is ordered, the court may transfer permanent legal custody of the child, with the right to consent to the child's adoption, to: (a) the department; (b) a licensed child-placing agency; or (c) another individual who has been approved by the department and has received consent for the transfer of custody from the department or agency that has custody of the child. (2) After 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 in accordance with 41-3-401(12). (3) A guardian ad litem must be appointed to represent the child's best interests in any hearing determining the involuntary termination of the parent-child legal relationship. The guardian ad litem shall continue to represent the child until the child is returned home or placed in an appropriate permanent placement. If a respondent parent is a minor, a guardian ad litem must be appointed to serve the minor parent in addition to any counsel requested by the parent. (4) There is no right to a jury trial at proceedings held to consider the termination of a parent-child legal relationship." Section 13. Section 41-3-609, MCA, is amended to read: "41-3-609. Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist: (a) the parents have relinquished the child pursuant to 40-6-135; (b) the child has been abandoned by the parents as set forth in 41-3-102(7)(e)(8)(e); (c) the identity of the parent is unknown and has been unknown for a period of 90 days and reasonable efforts to identify and locate the parent have failed; (d) the parent is convicted of a felony in which sexual intercourse occurred or is a minor adjudicated a delinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, the child is born; or (c)(e) the child is an adjudicated youth in need of care and both of the following exist: (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or (d) the parent has failed to successfully complete a treatment plan approved by the court within the time periods allowed for the child to be in foster care under 41-3-410 unless it orders other permanent legal custody under 41-3-410.; or (f) the parent has substantially failed to successfully complete or meet the goals of a treatment plan approved by the court and the child has been in an out-of-home placement for a cumulative total period of 1 year or longer. (2) In determining whether the conduct or condition of the parents 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 or 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. In making the determinations, the court shall consider but is not limited to the following: (a) emotional illness, mental illness, or mental deficiency of the parent of such a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time; (b) a history of violent behavior by the parent; (c) a single incident of life-threatening or gravely disabling injury to or disfigurement of the child caused by the parent; (d) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent's ability to care and provide for the child; (e) present judicially ordered long-term confinement of the parent; (f) the injury or death of a sibling child due to proven parental abuse or neglect; and (g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent. (3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evaluation of the child's or the parent's physical, mental, and emotional conditions. (4) A treatment plan is not required under this part upon a finding by the court following hearing if: (a) two medical doctors submit testimony that the parent is so severely mentally ill that the parent cannot assume the role of parent; (b) the parent is incarcerated for more than 1 year and a treatment plan is not practical considering the incarceration; or (c) the death or serious bodily injury, as defined in 45-2-101(64), of a sibling child caused by abuse or neglect by the parent has occurred. (5) If a person is convicted of a felony in which sexual intercourse occurred or if a minor is adjudicated a delinquent youth because of an act that, if committed by an adult, would be a felony in which sexual intercourse occurred and, as a result of the sexual intercourse, a child is born, the court may terminate the offender's parental rights to the child at any time after the conviction or adjudication." Section 14. Section 41-4-102, MCA, is amended to read: "41-4-102. Financial responsibility. Financial responsibility for any child placed pursuant to the provisions of the Interstate Compact on the Placement of Children shall must be determined in accordance with the provisions of Article V thereof of that compact in the first instance. However, in the event of partial or complete default of performance thereunder under the compact, the provisions of Title 40, chapter 5, part 1 (Revised Uniform Reciprocal Enforcement of Support Act) (Uniform Interstate Family Support Act), 41-3-406 [section 10], and 41-3-1122 also may be invoked." Section 15. Section 41-5-530, MCA, is amended to read: "41-5-530. Parental contributions account -- allocation of proceeds. (1) There is a parental contributions account in the state special revenue fund. (2) Contributions paid by the parents and guardians of youth under 41-3-406 [section 10], 41-5-403, 41-5-523, or 41-5-524 must be deposited in the account. (3) All money in the account, except any amount required to be returned to federal or county sources, is allocated to the department of public health and human services to carry out its duties under 52-1-103." Section 16. Proceedings subject to Indian Child Welfare Act. If a proceeding under this chapter involves an Indian child, as defined in the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., the proceeding is subject to the Indian Child Welfare Act. Section 17. Repealer. Sections 41-3-410 and 41-3-603, MCA, are repealed. Section 18. Codification instruction. (1) [Section 16] is intended to be codified as an integral part of Title 41, chapter 3, part 1, and the provisions of Title 41, chapter 3, part 1, apply to [section 16]. (2) [Sections 10 and 11] are intended to be codified as an integral part of Title 41, chapter 3, part 4, and the provisions of Title 41, chapter 3, part 4, apply to [sections 10 and 11]. Section 19. Coordination instruction. (1) If House Bill No. 163 is passed and approved and if 40-8-109 and 40-8-117 are repealed, a reference to [sections 1 through 156 of House Bill No. 163], the "Montana Adoption Act", should be substituted for the reference to "40-8-109, 40-8-117" in 41-3-102 under the definition of "parent-child legal relationship". (2) If Senate Bill No. 110 is passed and approved, then 41-3-406 in Senate Bill No. 110 is void and section 10 of this bill must read: "NEW SECTION. Section 10. Contributions by parents or guardians for youth's care. (1) If custody of the youth is transferred to the department, the court shall examine the financial ability of the youth's parents or guardians to pay a contribution covering all or part of the costs for the care, custody, and treatment of the youth, including the costs of necessary medical, dental, and other health care. (2) If the court determines that the youth's parent or guardian is financially able to pay a contribution as provided in subsection (1), the court shall order the youth's parent or guardian to pay a specified amount or an amount determined by the department. In either case, the amount must be based on the uniform child support guidelines adopted by the department pursuant to 40-5-209. (3) A parent's or guardian's liability for contributions begins to accrue from the date the youth is removed from the home and continues until the youth is returned to the parent or guardian, the youth becomes emancipated, or the liability is terminated by order of the court. (4) (a) A parent or guardian who is ordered to pay a contribution for a youth under this section assigns to the department all rights to a child support order for that youth that are not otherwise assigned under 53-2-613. The assignment of a child support obligation: (i) is effective for both current and accrued support; (ii) takes effect on the date the youth is transferred to the custody of the department; and (iii) remains in effect for as long as the youth lawfully remains in custody of the department and until all arrears that are owed prior to the termination of the department's custody are paid. (b) The assigned child support obligation is in addition to the parent's or guardian's contribution determined under subsection (2) or (8), if applicable. (c) The assigned child support obligation may be retained by the department in an amount sufficient to reimburse the costs for the youth's care that remain after the obligation has been satisfied. (5) (a) Except as provided in subsection (5)(b), contributions ordered under this section and each modification of an existing order are enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 4. An order for a contribution that is inconsistent with this section is nevertheless subject to withholding for the payment of the contribution without need for an amendment of the support order or for any further action by the court. (b) A court-ordered exception from contributions under this section must be in writing and must be included in the order. An exception from the immediate income withholding requirement may be granted if the court finds that there is: (i) good cause not to require immediate income withholding; or (ii) an alternative arrangement between the department and the person who is ordered to pay contributions. (c) A finding of good cause not to require immediate income withholding must, at a minimum, be based upon: (i) a written determination and explanation by the court of the reasons why the implementation of immediate income withholding is not in the best interests of the child; and (ii) proof of timely payment of previously ordered support in cases involving modification of contributions ordered under this section. (d) An alternative arrangement must: (i) provide sufficient security to ensure compliance with the arrangement; (ii) be in writing and be signed by a representative of the department and the person required to make contributions; and (iii) if approved by the court, be entered into the record of the proceeding. (6) Upon a showing of a change in the financial ability of the youth's parent or guardian to pay, the court may modify its order for the payment of contributions required under subsection (2) or the parent or guardian may apply to the department for an administrative modification provided for in Title 40, chapter 5, part 2. A modification must be based upon the uniform child support guidelines adopted by the department pursuant to 40-5-209. (7) (a) If the court orders the payment of contributions under this section or the department orders the payment of contributions under subsection (8), the department shall collect and enforce the contribution order pursuant to Title IV-D of the Social Security Act. (b) The department may collect and enforce a contribution order and an assignment of a child support obligation, if applicable, under this section by any means available under law, including the remedies provided for in Title 40, chapter 5, parts 2 and 4. (8) Upon a court order for commitment that does not contain an amount of a contribution or a referral by the court to determine an amount of a contribution, as provided in subsection (2), the department may determine, establish, and order the youth's parent or guardian to pay a contribution as provided for in subsection (1) using the procedure provided in Title 40, chapter 5, part 2, for establishing a child support order. Section 20. Applicability. [Sections 1 through 10] apply to proceedings commenced on or after October 1, 1997. -END- HOUSE BILL NO. 203 INTRODUCED BY R. JOHNSON AN ACT GENERALLY REVISING CHILD ABUSE AND NEGLECT LAWS; DEFINING BEST INTERESTS OF THE CHILD; PROVIDING FOR A PERMANENCY PLAN HEARING; AMENDING SECTIONS 40-8-111, 41-3-102, 41-3-202, 41-3-204, 41-3-303, 41-3-401, 41-3-403, 41-3-404, 41-3-406, 41-3-607, 41-3-609, 41-4-102, AND 41-5-530, MCA; REPEALING SECTIONS 41-3-410 AND 41-3-603, MCA; AND PROVIDING AN APPLICABILITY DATE. Appendix B 1996 Estimated 1996 CAN Judicial Dist. Judges/Dist. Caseload Cases/Judge Cases 1 3 3667 1222 48 2 2 1067 533 34 3* 1 634 634 11 4 4 3404 851 43 5 1 857 857 10 6 1 664 664 3 7 2 817 408 12 8 3 (1 yth ct) 3383 1127 63 9 1 966 966 17 10 1 577 577 14 11 2 3060 1530 47 12 1 773 773 16 13 5 (3 yth ct) 6518 1303 208 14 1 380 380 6 15 1 453 453 3 16 2 1111 555 65 17 1 511 511 4 18 2 1337 668 15 19 1 791 791 22 20 1 1331 1331 31 21 1 1139 1139 13 *The number of child abuse and neglect case filed in 1996 is not available for Powell county. They are available only for Deer Lodge and Granite counties.