2023 Montana Code Annotated › 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 -- evidence and consideration of harm of removal -- order -- service

41-3-427. (Temporary) Petition for immediate protection and emergency protective services -- evidence and consideration of harm of removal -- 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 must be supported by an affidavit signed by a representative of the department stating in detail the alleged facts upon which the request is based and the facts establishing probable cause or, if the case is subject to the federal Indian Child Welfare Act or the Montana Indian Child Welfare Act provided for in Title 41, chapter 3, part 13, clear and convincing evidence that a child is abused or neglected or is in danger of being abused or neglected.
(c) The affidavit of the department representative must contain:
(i) information, if any, regarding statements made by the parents about the facts of the case; and
(ii) specific, written documentation as to why the risk of allowing the child to remain at home substantially outweighs the harm of removing the child, including consideration of:
(A) the emotional trauma the child is likely to experience if separated from the family;
(B) the child's relationships with other members of the household, including siblings;
(C) the child's schooling and social relationships that could be disrupted with a placement out of the neighborhood;
(D) the impact the removal would have on services the child is receiving and on extracurricular activities that benefit the child; and
(E) documentation of reasonable efforts made to keep the family intact.
(d) If from the alleged facts presented in the affidavit it appears to the court that there is probable cause or, if the case is subject to the federal Indian Child Welfare Act or the Montana Indian Child Welfare Act, clear and convincing evidence to believe that the child has been abused or neglected or is in danger of being abused and neglected, the judge shall grant emergency protective services and the relief authorized by subsection (2) until the adjudication hearing or the temporary investigative hearing. If it appears from the alleged facts contained in the affidavit that there is insufficient probable cause or, if the case is subject to the federal Indian Child Welfare Act or the Montana Indian Child Welfare Act, clear and convincing evidence to believe that the child has been abused or neglected or is in danger of being abused or neglected, the court shall dismiss the petition.
(e) If the parents, parent, guardian, person having physical or legal custody of the child, or attorney for the child disputes the material issues of fact contained in the affidavit or the veracity of the affidavit, the person may request a contested show cause hearing pursuant to 41-3-432 within 10 days following service of the petition and affidavit.
(f) The petition for immediate protection and emergency protective services must include a notice advising the parents, parent, guardian, or other person having physical or legal custody of the child that the parents, parent, guardian, or other person having physical or legal custody of the child may have a support person present during any meeting with a child protection specialist concerning emergency protective services. Reasonable accommodation must be made in scheduling an in-person meeting with the child protection specialist.
(2) Pursuant to subsection (1), if the court finds probable cause or, if the case is subject to the federal Indian Child Welfare Act or the Montana Indian Child Welfare Act, clear and convincing evidence based on the petition and affidavit, the court may issue an order for immediate protection of the child. 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 or, if the case is subject to the federal Indian Child Welfare Act or the Montana Indian Child Welfare Act, clear and convincing evidence, 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) the right of the department to locate, contact, and share information with any extended family members who may be considered as placement options for the child;
(d) 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;
(e) 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;
(f) 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;
(g) 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
(h) 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) When requesting emergency protective services under this section, the department shall provide the court with information on:
(a) whether a kinship placement is available; or
(b) if a family foster home has been identified:
(i) where the foster home is located in relation to the child's home;
(ii) whether the foster placement can accommodate the proposed visitation schedule;
(iii) whether siblings can be placed together;
(iv) the proximity of the foster home to the child's home and school;
(v) whether the child will be able to observe religious or cultural practices important to the child; and
(vi) whether the foster home is able to accommodate any special needs the child may have.
(4) In making a removal determination, the court shall weigh and evaluate, in the factual setting, the harm to the child that will result from removal and determine if allowing the child to remain in the home substantially outweighs the harm of removal. Factors for consideration of the best interests of the child include but are not limited to:
(a) the factors identified in subsections (1)(c)(ii)(A) through (1)(c)(ii)(D); and
(b) whether the department made reasonable efforts, as described in subsection (1)(c)(ii)(E), to keep the family intact.
(5) (a) An order for removal of a child from the home must include a finding that:
(i) continued residence of the child with the parent is contrary to the welfare of the child;
(ii) an out-of-home placement is in the best interests of the child; and
(iii) the risk of allowing the child to remain in the home substantially outweighs the harm of removal.
(b) The court shall provide written findings to explain why the risk of the child's continued stay in the home outweighs the harm of removing the child.
(6) 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.
(7) The petition must be served as provided in 41-3-422 or, if the case involves an Indian child, as provided in 41-3-1311. (Terminates June 30, 2025--sec. 55, Ch. 716, L. 2023.)
41-3-427. (Effective July 1, 2025) Petition for immediate protection and emergency protective services -- evidence and consideration of harm of removal -- 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 must be supported by an affidavit signed by a representative of the department stating in detail the alleged facts upon which the request is based and the facts establishing probable cause or, if the case is subject to the federal Indian Child Welfare Act, clear and convincing evidence that a child is abused or neglected or is in danger of being abused or neglected.
(c) The affidavit of the department representative must contain:
(i) information, if any, regarding statements made by the parents about the facts of the case; and
(ii) specific, written documentation as to why the risk of allowing the child to remain at home substantially outweighs the harm of removing the child, including consideration of:
(A) the emotional trauma the child is likely to experience if separated from the family;
(B) the child's relationships with other members of the household, including siblings;
(C) the child's schooling and social relationships that could be disrupted with a placement out of the neighborhood;
(D) the impact the removal would have on services the child is receiving and on extracurricular activities that benefit the child; and
(E) documentation of reasonable efforts made to keep the family intact.
(d) If from the alleged facts presented in the affidavit it appears to the court that there is probable cause or, if the case is subject to the federal Indian Child Welfare Act, clear and convincing evidence to believe that the child has been abused or neglected or is in danger of being abused and neglected, the judge shall grant emergency protective services and the relief authorized by subsection (2) until the adjudication hearing or the temporary investigative hearing. If it appears from the alleged facts contained in the affidavit that there is insufficient probable cause or, if the case is subject to the federal Indian Child Welfare Act, clear and convincing evidence to believe that the child has been abused or neglected or is in danger of being abused or neglected, the court shall dismiss the petition.
(e) If the parents, parent, guardian, person having physical or legal custody of the child, or attorney for the child disputes the material issues of fact contained in the affidavit or the veracity of the affidavit, the person may request a contested show cause hearing pursuant to 41-3-432 within 10 days following service of the petition and affidavit.
(f) The petition for immediate protection and emergency protective services must include a notice advising the parents, parent, guardian, or other person having physical or legal custody of the child that the parents, parent, guardian, or other person having physical or legal custody of the child may have a support person present during any meeting with a child protection specialist concerning emergency protective services. Reasonable accommodation must be made in scheduling an in-person meeting with the child protection specialist.
(2) Pursuant to subsection (1), if the court finds probable cause or, if the case is subject to the federal Indian Child Welfare Act, clear and convincing evidence based on the petition and affidavit, the court may issue an order for immediate protection of the child. 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 or, if the case is subject to the federal Indian Child Welfare Act, clear and convincing evidence, 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) the right of the department to locate, contact, and share information with any extended family members who may be considered as placement options for the child;
(d) 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;
(e) 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;
(f) 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;
(g) 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
(h) 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) When requesting emergency protective services under this section, the department shall provide the court with information on:
(a) whether a kinship placement is available; or
(b) if a family foster home has been identified:
(i) where the foster home is located in relation to the child's home;
(ii) whether the foster placement can accommodate the proposed visitation schedule;
(iii) whether siblings can be placed together;
(iv) the proximity of the foster home to the child's home and school;
(v) whether the child will be able to observe religious or cultural practices important to the child; and
(vi) whether the foster home is able to accommodate any special needs the child may have.
(4) In making a removal determination, the court shall weigh and evaluate, in the factual setting, the harm to the child that will result from removal and determine if allowing the child to remain in the home substantially outweighs the harm of removal. Factors for consideration of the best interests of the child include but are not limited to:
(a) the factors identified in subsections (1)(c)(ii)(A) through (1)(c)(ii)(D); and
(b) whether the department made reasonable efforts, as described in subsection (1)(c)(ii)(E), to keep the family intact.
(5) (a) An order for removal of a child from the home must include a finding that:
(i) continued residence of the child with the parent is contrary to the welfare of the child;
(ii) an out-of-home placement is in the best interests of the child; and
(iii) the risk of allowing the child to remain in the home substantially outweighs the harm of removal.
(b) The court shall provide written findings to explain why the risk of the child's continued stay in the home outweighs the harm of removing the child.
(6) 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.
(7) 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; amd. Sec. 2, Ch. 11, L. 2011; amd. Sec. 4, Ch. 223, L. 2011; amd. Sec. 11, Ch. 520, L. 2021; amd. Sec. 2, Ch. 384, L. 2023; amd. Sec. 4, Ch. 711, L. 2023; amd. Sec. 36, Ch. 716, L. 2023.