2023 Montana Code Annotated › Title 41. Minors › Chapter 3. Child Abuse and Neglect › Part 13. Montana Indian Child Welfare Act › 41-3-1325. Emergency removal of Indian child

41-3-1325. (Temporary) Emergency removal of Indian child.
(1) Nothing in this part may be construed to prevent the department from removing an Indian child from the Indian child's parent or Indian custodian or prevent the emergency placement of the Indian child in a foster home, under applicable state law, to prevent imminent physical damage or harm to the Indian child.
(2) An emergency removal or placement of an Indian child under state law must terminate immediately when the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.
(3) A state court shall:
(a) make a finding on the record that the emergency removal or placement is necessary to prevent imminent physical damage or harm to the child;
(b) promptly hold a hearing on whether the emergency removal or placement continues to be necessary whenever new information indicates that the emergency situation has ended;
(c) at any court hearing during the emergency proceeding, determine whether the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child; and
(d) immediately terminate or direct the department to terminate the emergency removal if the court or department possesses sufficient evidence to determine that the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.
(4) An emergency proceeding may be terminated by any of the following actions:
(a) initiation of a child custody proceeding subject to the provisions of the federal Indian Child Welfare Act and this part;
(b) transfer of the child to the jurisdiction of the appropriate Indian tribe; or
(c) restoring the child to the parent or Indian custodian.
(5) A petition for a court order authorizing the emergency removal or placement, or its accompanying documents, must contain a statement of the risk of imminent physical damage or harm to the Indian child, any evidence that the emergency removal or placement continues to be necessary to prevent the damage or harm, and if available:
(a) the full name, age, and last known address of the Indian child;
(b) the name and address of the child's parents and Indian custodians, if any;
(c) the steps taken to provide notice to the child's parents, Indian custodians, and tribe about the emergency proceeding;
(d) if the child's and Indian custodians are unknown, a detailed explanation of the efforts made to locate and contact the individuals, including contact with the appropriate bureau of Indian affairs regional director;
(e) the residence or the domicile of the Indian child;
(f) if either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village;
(g) the tribal affiliation of the child and of the parents or Indian custodians;
(h) a specific and detailed account of the circumstances that led the agency responsible for the emergency removal of the child to remove the child;
(i) if the child is believed to reside or be domiciled on a reservation where the tribe exercises exclusive jurisdiction over child custody matters, a statement of the efforts made and being made to contact the tribe and transfer the child to the tribe's jurisdiction; and
(j) a statement of the efforts made to assist the parents or Indian custodians so the Indian child may be safely returned to the parents or Indian custodians.
(6) Contact made to provide notice of an emergency removal and reported pursuant to subsection (5)(c) does not constitute the notice required under 41-3-1311 for the purposes of subsequent dependency, termination of parental rights, or adoption proceedings.
(7) An emergency proceeding regarding an Indian child may not be continued for more than 30 days unless the court determines that:
(a) restoring the child to the parent or Indian custodian would subject the child to imminent physical damage or harm;
(b) the court has been unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe; and
(c) it has not been possible to initiate a child custody proceeding. (Terminates June 30, 2025--sec. 55, Ch. 716, L. 2023.)
History: En. Sec. 14, Ch. 716, L. 2023.