| Mont. Code § 41-3-432
Montana
Code
Title
41. Minors
Chapter
3. Child Abuse and Neglect
Part
4. Abuse or Neglect Proceedings
§ 41-3-432.
Show cause hearing -- order
(1) (a) Except as provided
in the federal Indian Child Welfare Act, a show cause hearing must be
conducted within 20 days of the filing of an initial child abuse and neglect
petition unless otherwise stipulated by the parties pursuant to 41-3-434
or unless an extension of time is granted by the court. A separate notice
to the court stating the statutory time deadline for a hearing must accompany
any petition to which the time deadline applies.
(b) 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.
(c)
The court may grant an extension of time for a show cause hearing only
upon a showing of substantial injustice and shall order an appropriate
remedy that considers the best interests of the child.
(2) The person filing
the petition has the burden of presenting evidence establishing probable
cause for the issuance of an order for temporary investigative authority
after the show cause hearing, except as provided by the federal Indian
Child Welfare Act, if applicable.
(3) At the show cause
hearing, the court may consider all evidence and shall provide an opportunity
for a parent, guardian, or other person having physical or legal custody
of the child to provide testimony. Hearsay evidence of statements made
by the affected child is admissible at the hearing. The parent, guardian,
or other person may be represented by legal counsel and may be appointed
or assigned counsel as provided for in 41-3-425. The court may permit
testimony by telephone, audiovisual means, or other electronic means.
(4) At the show cause
hearing, the court shall explain the procedures to be followed in the
case and explain the parties' rights, including the right to request
appointment or assignment of counsel if indigent or if appointment or
assignment of counsel is required under the federal Indian Child Welfare
Act, if applicable, and the right to challenge the allegations contained
in the petition. The parent, guardian, or other person having physical
or legal custody of the child must be given the opportunity to admit or
deny the allegations contained in the petition at the show cause hearing.
Inquiry must be made to determine whether the notice requirements of the
federal Indian Child Welfare Act, if applicable, have been met.
(5) The court shall make
written findings on issues including but not limited to the following:
(a) whether the child
should be returned home immediately if there has been an emergency removal
or remain in temporary out-of-home care or be removed from the home;
(b) if removal is ordered
or continuation of removal is ordered, why continuation of the child in
the home would be contrary to the child's best interests and welfare;
(c)
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;
(d) financial support
of the child, including inquiry into the financial ability of the parents,
guardian, or other person having physical or legal custody of the child
to contribute to the costs for the care, custody, and treatment of the
child and requirements of a contribution for those costs pursuant to 41-3-446;
and
(e) whether another hearing
is needed and, if so, the date and time of the next hearing.
(6) The court may consider:
(a) terms and conditions
for parental visitation; and
(b) whether orders for
examinations, evaluations, counseling, immediate services, or protection
are needed.
(7)
Following the show cause hearing, the court may enter an order for the
relief requested or amend a previous order for immediate protection of
the child if one has been entered. The order must be in writing.
(8) If a child who has
been removed from the child's home is not returned home after the show
cause hearing or if removal is ordered, the parents or parent, guardian,
or other person or agency having physical or legal custody of the child
named in the petition may request that a citizen review board, if available
pursuant to part 10 of this chapter, review the case within 30 days of
the show cause hearing and make a recommendation to the district court,
as provided in 41-3-1010.
(9) Adjudication of a
child as a youth in need of care may be made at the show cause hearing
if the requirements of 41-3-437(2) are met. If not made at the show cause
hearing, adjudication under 41-3-437 must be made within the time limits
required by 41-3-437 unless adjudication occurs earlier by stipulation
of the parties pursuant to 41-3-434 and order of the court.
History:
En. Sec. 6, Ch. 281, L. 2001; amd. Sec. 2, Ch. 189, L. 2003; amd. Sec.
9, Ch. 504, L. 2003; amd. Sec. 3, Ch. 349, L. 2005; amd. Sec. 32, Ch.
449, L. 2005.
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