| Mont. Code § 41-3-422
Montana
Code
Title
41. Minors
Chapter
3. Child Abuse and Neglect
Part
4. Abuse or Neglect Proceedings
§ 41-3-422.
Abuse and neglect petitions -- burden of proof
(1)
(a) Proceedings under this chapter must be initiated by the
filing of a petition. A petition may request the following
relief:
(i)
immediate protection and emergency protective services, as provided in 41-
3-427;
(ii)
temporary investigative authority, as provided in 41-3-433;
(iii)
temporary legal custody, as provided in 41-3-442;
(iv)
long-term custody, as provided in 41-3-445;
(v)
termination of the parent-child legal relationship, as provided in 41-3-
607;
(vi)
appointment of a guardian pursuant to 41-3-444;
(vii)
a determination that preservation or reunification services need not be
provided; or
(viii)
any combination of the provisions of subsections (1)(a)(i) through
(1)(a)(vii) or any other relief that may be required for
the best interests of the child.
(b)
The petition may be modified for different relief at any
time within the discretion of the court.
(c)
A petition for temporary legal custody may be the initial
petition filed in a case.
(d)
A petition for the termination of the parent-child legal relationship
may be the initial petition filed in a case if
a request for a determination that preservation
or reunification services need not be provided is made in
the petition.
(2)
The county attorney, attorney general, or an attorney hired by
the county shall file all petitions under this chapter. A
petition filed by the county attorney, attorney general, or an
attorney hired by the county must be accompanied by:
(a)
an affidavit by the department alleging that the child appears
to have been abused or neglected and stating the basis
for the petition; and
(b)
a separate notice to the court stating any statutory time
deadline for a hearing.
(3)
Abuse and neglect petitions must be given highest preference by
the court in setting hearing dates.
(4)
An abuse and neglect petition is a civil action brought
in the name of the state of Montana. The Montana
Rules of Civil Procedure and the Montana Rules of Evidence
apply except as modified in this chapter. Proceedings under a
petition are
not a bar to criminal prosecution.
(5)
(a) Except as provided in subsection (5)(b), the person filing
the abuse and neglect petition has the burden of presenting
evidence required to justify the relief requested and establishing:
(i)
probable cause for the issuance of an order for immediate
protection and emergency protective services or an order for temporary
investigative authority;
(ii)
a preponderance of the evidence for an order of adjudication
or temporary legal custody;
(iii)
a preponderance of the evidence for an order of long-term
custody; or
(iv)
clear and convincing evidence for an order terminating the parent-child
legal relationship.
(b)
If a proceeding under this chapter involves an Indian child,
as defined in the federal Indian Child Welfare Act, 25
U.S.C. 1901, et seq., the standards of
proof required for legal relief under the federal Indian Child
Welfare Act apply.
(6)
(a) Except as provided in the federal Indian Child Welfare
Act, if applicable, the parents or parent, guardian, or other
person or agency having legal custody of the child named
in the petition, if residing in the state, must be
served personally with a copy of the initial petition and
a petition to terminate the parent-child legal relationship at least
5 days before the date set for hearing. If the
person or agency cannot be served personally, the person or
agency may be served by publication as provided in 41-3-428
and 41-3- 429.
(b)
Copies of all other petitions must be served upon the
person or the person's attorney of record by certified mail,
by personal service, or by publication as provided in 41-3-428
and 41-3-429. If service is by certified mail, the department
must receive a return receipt signed by the person to
whom the notice was mailed for the service to be
effective. Service of the notice is considered to be effective
if, in the absence of a return receipt, the person
to whom the notice was mailed appears at the hearing.
(7)
If personal service cannot be made upon the parents or
parent, guardian, or other person or agency having legal custody,
the court shall immediately provide for the appointment or assignment
of an attorney as provided for in 41- 3-425 to
represent the unavailable party when, in the opinion of the
court, the interests of justice require.
(8)
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.
(9)
(a) Any person interested in any cause under this chapter
has the right to appear. Any foster parent, preadoptive parent,
or relative caring for the child must be given legal
notice by the attorney filing the petition of all judicial
hearings for the child and must be given an opportunity
to be heard. The right to appear or to be
heard does not make that person a party to the
action. Any foster parent, preadoptive parent, or relative caring for
the child must be given notice of all reviews by
the reviewing body.
(b)
A foster parent, preadoptive parent, or relative of the child
who is caring for or a relative of the child
who has cared for a child who is the subject
of the
petition who appears at a hearing set pursuant to this
section may be allowed by the court to intervene in
the action if the court, after a hearing in which
evidence is presented on those subjects provided for in 41-3-437(4),
determines that the intervention of the person is in the
best interests of the child. A person granted intervention pursuant
to this subsection is entitled to participate in the adjudicatory
hearing held pursuant to 41-3-437 and to notice and participation
in subsequent proceedings held pursuant to this chapter involving the
custody of the child.
(10)
An abuse and neglect petition must:
(a)
state the nature of the alleged abuse or neglect and
of the relief requested;
(b)
state the full name, age, and address of the child
and the name and address of the child's parents or
guardian or person having legal custody of the child;
(c)
state the names, addresses, and relationship to the child of
all persons who are necessary parties to the action.
(11)
Any party in a proceeding pursuant to this section is
entitled to counsel as provided in 41-3-425.
(12)
At any stage of the proceedings considered appropriate by the
court, the court may order an alternative dispute resolution proceeding
or the parties may voluntarily participate in an alternative dispute
resolution proceeding. An alternative dispute resolution proceeding under this chapter
may include a family group decisionmaking meeting, mediation, or a
settlement conference. If a court orders an alternative dispute resolution
proceeding, a party who does not wish to participate may
file a motion objecting to the order. If the department
is a party to the original proceeding, a representative of
the department who has complete authority to settle the issue
or issues in the original proceeding must be present at
any alternative dispute resolution proceeding.
(13)
Service of a petition under this section must be accompanied
by a written notice advising the child's parent, guardian, or
other person having physical or legal custody of the child
of the:
(a)
right, pursuant to 41-3-425, to appointment or assignment of counsel
if the person
is indigent or if appointment or assignment of counsel is
required under the federal Indian Child Welfare Act, if applicable;
(b)
right to contest the allegations in the petition; and
(c)
timelines for hearings and determinations required under this chapter.
(14)
If appropriate, orders issued under this chapter must contain a
notice provision advising a child's parent, guardian, or other person
having physical or legal custody of the child that:
(a)
the court is required by federal and state laws to
hold a permanency hearing to determine the permanent placement of
a child no later than 12 months after a judge
determines that the child has been abused or neglected or
12 months after the first 60 days that the child
has been removed from the child's home;
(b)
if a child has been in foster care for 15
of the last 22 months, state law presumes that termination
of parental rights is in the best interests of the
child and the state is required to file a petition
to terminate parental rights;
and
(c)
completion of a treatment plan does not guarantee the return
of a child.
(15)
A court may appoint a standing master to conduct hearings
and propose decisions and orders to the court for court
consideration and action. A standing master may not conduct a
proceeding to terminate parental rights. A standing master must be
a member of the state bar of Montana and must
be knowledgeable in the area of child abuse and neglect
laws.
History: En. 10-1310 by
Sec. 6, Ch. 328, L. 1974; amd. Sec. 20, Ch. 100, L. 1977; R.C.M. 1947,
10-1310; amd. Sec. 4, Ch. 567, L. 1979; amd. Sec. 5, Ch. 511, L. 1981;
amd. Sec. 2, Ch. 659, L. 1985; amd. Sec. 2, Ch. 463, L. 1987; amd. Sec.
43, Ch. 609, L. 1987; amd. Sec. 2, Ch. 329, L. 1993; amd. Sec. 11, Ch.
458, L. 1995; amd. Sec. 168, Ch. 546, L. 1995; amd. Sec. 6, Ch. 516, L.
1997; amd. Sec. 1, Ch. 428, L. 1999; amd. Sec. 8, Ch. 566, L. 1999; amd.
Sec. 4, Ch. 83, L. 2001; amd. Sec. 2, Ch. 194, L. 2001; amd. Secs. 4,
18(2), Ch. 281, L. 2001; amd. Sec. 7, Ch. 311, L. 2001; Sec. 41-3-401,
MCA 1999; redes. 41-3-422
by Sec. 17(2), Ch. 281, L. 2001; amd. Sec. 1, Ch. 189, L. 2003; amd. Sec.
7, Ch. 504, L. 2003; amd. Sec. 1, Ch. 118, L. 2005; amd. Sec. 30, Ch.
449, L. 2005.
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