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Mont. Code § 41-3-427
Montana
Code
Title
41. Minors
Chapter
3. Child Abuse and Neglect
Part
4. Abuse or Neglect Proceedings
§ 41-3-427.
Petition for immediate protection and emergency protective services -- order -- service
(1) (a) In a case in which
it appears that a child is abused or neglected or is in danger of being
abused or neglected, the county attorney, the attorney general, or an
attorney hired by the county may file a petition for immediate protection
and emergency protective services. In implementing the policy of this
section, the child's health and safety are of paramount concern.
(b) A petition for immediate
protection and emergency protective services must state the specific authority
requested and the facts establishing probable cause that a child is abused
or neglected or is in danger of being abused or neglected.
(c)
The petition for immediate protection and emergency protective services
must be supported by an affidavit signed by a representative of the department
stating in detail the facts upon which the request is based. The petition
or affidavit of the department must contain information regarding statements,
if any, made by the parents detailing the parents' statement of the facts
of the case. The parents, if available in person or by electronic means,
must be given an opportunity to present evidence to the court before the
court rules on the petition.
(d) The petition for immediate
protection and emergency protective services must include a notice advising
the parents, parent, guardian, or other person having physical custody
of the youth that the parents, parent, guardian, or other person may have
a support person present during any in-person meeting with a social worker
concerning emergency protective services. Reasonable accommodation must
be made in scheduling an in-person meeting with the social worker.
(2) The person filing
the petition for immediate protection and emergency protective services
has the burden of presenting evidence establishing probable cause for
the issuance of an order for immediate protection of the child, except
as provided by the federal Indian Child Welfare Act, if applicable. The
court shall consider the parents' statements, if any, included with the
petition and any accompanying affidavit or report to the court. If the
court finds probable cause, the court may issue an order granting the
following forms of relief, which do not constitute a court-ordered treatment
plan under 41-3- 443:
(a) the right of entry
by a peace officer or department worker;
(b) the right to place
the child in temporary medical or out-of-home care, including but not
limited to care provided by a noncustodial parent, kinship or foster family,
group home, or institution;
(c) a requirement that
the parents, guardian, or other person having physical or legal custody
furnish information that the court may designate and obtain evaluations
that may be necessary to determine whether a child is a youth in need
of care;
(d) a requirement that
the perpetrator of the alleged child abuse or neglect be removed from
the home to allow the child to remain in the home;
(e)
a requirement that the parent provide the department with the name and
address of the other parent, if known, unless parental rights to the child
have been terminated;
(f) a requirement that
the parent provide the department with the names and addresses of extended
family members who may be considered as placement options for the child
who is the subject of the proceeding; and
(g) any other temporary
disposition that may be required in the best interests of the child that
does not require an expenditure of money by the department unless the
court finds after notice and a hearing that the expenditure is reasonable
and that resources are available for payment. The department is the payor
of last resort after all family, insurance, and other resources have been
examined.
(3) An order for removal
of a child from the home must include a finding that continued residence
of the child with the parent is contrary to the welfare of the child or
that an out-of-home placement is in the best interests of the child.
(4)
The order for immediate protection of the child must require the person
served to comply immediately with the terms of the order and to appear
before the court issuing the order on the date specified for a show cause
hearing. Upon a failure to comply or show cause, the court may hold the
person in contempt or place temporary physical custody of the child with
the department until further order.
(5) The petition must
be served as provided in 41-3-422.
History: En. 10-1311 by
Sec. 7, Ch. 328, L. 1974; amd. Sec. 21, Ch. 100, L. 1977; R.C.M. 1947,
10-1311(1) thru (3); amd. Sec. 3, Ch. 659, L. 1985; amd. Sec. 44, Ch.
609, L. 1987; amd. Sec. 12, Ch. 458, L. 1995; amd. Sec. 169, Ch. 546,
L. 1995; amd. Sec. 2, Ch. 501, L. 1997; amd. Sec. 5, Ch. 281, L. 2001;
amd. Sec. 8, Ch. 311, L. 2001; Sec. 41-3-402, MCA 1999; redes. 41-3-427
by Sec. 17(2), Ch. 281, L. 2001; amd. Sec. 8, Ch. 504, L. 2003; amd. Sec.
2, Ch. 422, L. 2005.
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