| Mont. Code § 41-3-437
Montana
Code
Title
41. Minors
Chapter
3. Child and Abuse Neglect
Part
4. Abuse or Neglect Proceedings
§ 41-3-437. Adjudication -- temporary disposition -- findings -- order
(1) Upon the filing of
an appropriate petition, an adjudicatory hearing must be held within 90
days of a show cause hearing under 41-3-432. Adjudication may take place
at the show cause hearing if the requirements of subsection (2) are met
or may be made by prior stipulation of the parties pursuant to 41-3-434
and order of the court. Exceptions to the time limit may be allowed only
in cases involving newly discovered evidence, unavoidable delays, stipulation
by the parties pursuant to 41-3-434, and unforeseen personal emergencies.
(2) The court may make
an adjudication on a petition under 41-3-422 if the court determines by
a preponderance of the evidence, except as provided in the federal Indian
Child Welfare Act, if applicable, that the child is a youth in need of
care. Except as otherwise provided in this part, the Montana Rules of
Civil
Procedure and the Montana Rules of Evidence apply to adjudication and
to an adjudicatory hearing. Adjudication must determine the nature of
the abuse and neglect and establish facts that resulted in state intervention
and upon which disposition, case work, court review, and possible termination
are based.
(3) The court shall hear
evidence regarding the residence of the child, paternity, if in question,
the whereabouts of the parents, guardian, or nearest adult relative, and
any other matters the court considers relevant in determining the status
of the child. Hearsay evidence of statements made by the affected youth
is admissible according to the Montana Rules of Evidence.
(4) In a case in which
abandonment has been alleged by the county attorney, the attorney general,
or an attorney hired by the county, the court shall hear offered evidence,
including evidence offered by a person appearing pursuant to 41-3-422(9)(a)
or (9)(b), regarding any of the following subjects:
(a) the extent to which
the child has been cared for, nurtured, or supported by a person other
than the child's parents; and
(b) whether the child
was placed or allowed to remain by the parents with another
person for the care of the child, and, if so, then the court shall accept
evidence regarding:
(i) the intent of the
parents in placing the child or allowing the child to remain with that
person; and
(ii) the circumstances
under which the child was placed or allowed to remain with that other
person, including:
(A) whether a parent requesting
return of the child was previously prevented from doing so as a result
of an order issued pursuant to Title 40, chapter 15, part 2, or of a conviction
pursuant to 45-5-206; and
(B) whether the child
was originally placed with the other person to allow the parent to seek
employment or attend school.
(5) In all civil and criminal
proceedings relating to abuse or neglect, the privileges related to the
examination or treatment of the child do not apply, except the attorney-client
privilege granted by 26-1-803 and the mediation privilege granted by 26-1-813.
(6)
(a) If the court determines that the child is not an abused or neglected
child, the petition must be dismissed and any order made pursuant to 41-3-427
or 41-3-432 must be vacated.
(b) If the child is adjudicated
a youth in need of care, the court shall set a date for a dispositional
hearing to be conducted within 20 days, as provided in 41-3-438(1), 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 41-3-427(2).
(7) (a) Before making
an adjudication, the court may make oral findings, and following the adjudicatory
hearing, the court shall make written findings on issues, including but
not limited to the following:
(i) which allegations
of the petition have been proved or admitted, if any;
(ii) whether there is
a legal basis for continued court and department intervention; and
(iii)
whether the department has made reasonable efforts to avoid protective
placement of the child or to make it possible to safely return the child
to the child's home.
(b) The court may order:
(i) terms for visitation,
support, and other intrafamily communication pending disposition if the
child is to be placed or to remain in temporary out-of-home care prior
to disposition;
(ii) examinations, evaluations,
or counseling of the child or parents in preparation for the disposition
hearing 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.
(iii) the department to
evaluate the noncustodial parent or relatives as possible caretakers,
if not already done;
(iv)
the perpetrator of the alleged child abuse or neglect to be removed from
the home to allow the child to remain in the home; and
(v) the department to
continue efforts to notify noncustodial parents.
(8) If a proceeding under
this chapter involves an Indian child and is subject to the federal Indian
Child Welfare Act, a qualified expert witness is required to testify that
the continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child.
History: En. 10-1312 by
Sec. 8, Ch. 328, L. 1974; R.C.M. 1947, 10-1312; amd. Sec. 19, Ch. 543,
L. 1979; amd. Sec. 5, Ch. 567, L. 1979; amd. Sec. 5, Ch. 659, L. 1985;
amd. Sec. 14, Ch. 458, L. 1995; amd. Sec. 8, Ch. 516, L. 1997; amd. Sec.
3, Ch. 481, L. 1999; amd. Sec. 10, Ch. 566, L. 1999; amd. Sec. 3, Ch.
194, L. 2001; amd. Sec. 9, Ch. 281, L. 2001; amd. Sec. 10, Ch. 311, L.
2001; Sec. 41-3-404, MCA 1999; redes. 41-3-437 by Sec. 17(2), Ch. 281,
L. 2001; amd. Sec. 11,
Ch. 504, L. 2003; amd. Sec. 55, Ch. 130, L. 2005; amd. Sec. 4, Ch. 349,
L. 2005.
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