Montana capitol
Credit: Eliza Wiley / MTFP

After six months of study, state lawmakers are set to debate a draft bill this week that could bring significant reforms to Montana’s child welfare system — changes some lawmakers and legal observers say are long overdue.

The bill, drafted by Rep. Danny Tenenbaum, D-Missoula, has been under development by the bipartisan Children, Families, Health, and Human Services Interim Committee since May. If the committee advances the bill at its Friday meeting, it will be introduced for official consideration during the upcoming 2023 Legislature.

Montana has one of the highest rates of youth in foster care in the country. According to the most recent data, from 2020, Montana reported 15 per 1,000 children in foster care, a figure three times the national average.

In its current form, the bill would require Child Protective Service caseworkers to obtain a judge’s warrant in most instances before removing a child from their home. The bill would also mandate legal representation for all children in abuse and neglect cases, narrow the removal criteria for “neglect,” and shorten deadlines for some family court proceedings. 

State law currently does not require CPS caseworkers or county attorneys to receive a warrant before removing a child from their home. Once in court, children are sometimes represented by attorneys, but are often assigned a court-appointed special advocate (CASA). Whereas an attorney is obligated to represent their client’s wishes, a CASA is tasked with advocating for what they perceive to be the best interest of the child.

The bill would also require that emergency protective services hearings, one of the earliest opportunities for parents to appear before a judge, take place within 72 hours of a child’s removal from their home. The current deadline for that type of hearing, if requested by a parent, is five business days.

Lawmakers and family law experts say those provisions have the potential to shake up Montana’s complex and highly utilized child welfare system. Changing one part of the puzzle, such as adding requirements for caseworkers or family court judges, can create waves of impact for children, families, state employees and court procedures. 

Asked to comment on the bill, Department of Public Health and Human Services spokesperson Jon Ebelt signaled reservations about the current draft but did not describe the agency’s specific concerns.

“DPHHS will continue to work with the Committee on the proposed bill, including by identifying areas of concern and opportunities for improvement,” Ebelt said in a Monday email.

April Barnings, executive director of Montana’s CASA and Guardian ad Litem Association, declined to comment on the draft bill in advance of Friday’s committee deliberations. 

Regardless of the difficult negotiations that might be necessary to change the state’s child welfare system, Tenenbaum said the bill is intended to make Montana’s child removal process compliant with state and federal constitutional rights to due process under the law. 

“What we discovered was that, actually, Montana’s quite far out of compliance with what the [U.S.] Constitution requires,” Tenenbaum said. Recent rulings from the U.S. Court of Appeals for the 9th Circuit, he said, are “quite clear that removing a child from their family can’t happen without a court order unless it’s an emergency situation. And we haven’t been doing that.”

Tenenbaum said the draft bill contains provisions that account for emergency situations. The bill would allow caseworkers or police officers to perform a warrantless removal if “the child is likely to experience sexual abuse or serious bodily injury in the time that it would be required to obtain a warrant.”

“What we discovered was that, actually, Montana’s quite far out of compliance with what the [U.S.] Constitution requires.”

Rep. Danny Tenenbaum, D-Missoula

With the ability to submit requests and receive warrants digitally and over the phone, Tenenbaum said he doesn’t think the new process would be unmanageable for judges, caseworkers or law enforcement. More important, Tenenbaum said, the draft bill’s parameters would give caseworkers clarity about how to proceed with child removals and protect them from making decisions that are out of step with federal court decisions.

“Caseworkers are currently overburdened with cases and they’re incredibly underpaid,” Tenenbaum said. “It’s not fair to send them out to do their jobs with a standard that basically requires them to routinely expose themselves to … lawsuits.”

The bill’s proposal to assign every removed child an attorney is also aimed at ensuring due process for minors during abuse and neglect cases. While some counties and judicial districts regularly assign attorneys to such children, Tenenbaum said the practice is not codified statewide. Such inconsistency means the level of legal representation a child receives in Montana “depends on their zip code,” he said.

Tenenbaum acknowledged that if the bill were to pass, the legal representation requirement may result in more work for the Office of State Public Defender (OPD), an agency that has struggled to retain and assign staff to its already lengthy caseloads. 

Public Defender Division Administrator Brian Smith said the potential increase in clients for OPD is something for lawmakers to take into consideration, but that mandating legal representation for minors would be in line with best legal practices for abuse and neglect cases.

“It’s really about what’s right. It’s about what’s right for kids,” Smith said.

The draft bill could have consequences for other parts of the legal system, too. Bumping up the timeline for hearings to 72 hours after a removal may impact the schedules of judges, especially those who travel for court cases across multiple counties, and prosecutors who have less time to prepare for court than they would under the current schedule. 

Tenenbaum said the changes might strain Montana’s courts, but reiterated that the draft bill is an effort to move the state toward a better process for children and families. Even if the reforms appear difficult to implement, he said, he expects both Republicans and Democrats on the interim committee to support the goal of upholding their constituents’ due process rights.

“The vote to begin drafting this bill, to ensure that Montana statutes comply with the Constitution, was unanimous. I hope that the vote to make this bill a committee bill and send it on to the Legislature in January is also unanimous,” Tenenbaum said. “It shouldn’t be a partisan issue to ensure that Montanans who are in family court have their constitutional rights, their core constitutional rights protected.”

Rep. Jennifer Carlson, R-Manhattan, is one of the Republicans on the interim committee who supports the premise of the draft bill, particularly the requirement for warrants and the expedited timeline for court appearances.

“That should not be out of the ordinary,” she said, referring to the 72-hour hearing deadline. “My whole point in supporting this bill is we protect people’s constitutional rights … I don’t think it should be controversial.”

Carlson also dismissed the idea that the proposals in the draft bill would create financial hurdles that Montana can’t overcome. Adequately funding the family court system, she said, should be near the top of the Legislature’s list of priorities.

“Child protection is the state’s job. We have an obligation that children who need to be protected are protected,” she said. “I don’t buy the ‘we don’t have enough money to fix this problem [argument].’ What we have is a lack of will to spend the money on things that are our job.”

The committee is scheduled to begin its meeting at 8:00 a.m. on Friday. 

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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.