Rep. Jennifer Carlson
Rep. Jennifer Carlson, R-Churchill, presents House Bill 37 to the House Judiciary Committee on Tuesday, Jan. 10, 2023. Credit: Mara Silvers/MTFP

Lawmakers, advocates and the state health department are poised to consider dozens of bills during the 68th Legislature to reform parts of the child protection and foster care systems. Stakeholders say the issue will likely be a defining policy priority of the session and an arena well-suited for bipartisan compromise.

Montana has a rate of child removal that’s between two and three times the national average, according to the latest national estimates. The Department of Public Health and Human Services, which investigates child neglect and abuse, reports that the state’s child removals and foster care caseloads have decreased in recent years. Still, reform advocates are gathering support for bills that would limit the circumstances for child removals, expedite hearings and attempt to add transparency to the often complex and emotional proceedings.

As the third week of the session comes to a close, here are five bills to watch that have been introduced so far:

House Bill 37 — Generally revise child abuse and neglect laws

Sponsor: Rep. Jennifer Carlson, R-Churchill

A kind of omnibus bill for child protective reforms, HB 37 would tackle several portions of the removal process. It would require the health department to receive a warrant from a district court judge to remove a child from their parent or guardian unless the child is “likely to experience sexual abuse or physical abuse in the time that would be required to obtain a warrant.” The bill would also implement a three-day timeline for hearings following a removal, beginning July 1, 2025, a shorter period than is currently required.

If passed, the bill also stipulates that child protective workers cannot remove a child for neglect or abuse constituted only by “substance use by a parent or guardian, disorderly living conditions, other factors closely related to economic status, or a child’s obesity.” 

The bill originated after over a year of study in the bipartisan Children, Families, Health and Human Services Interim Committee and has been championed by Rep. Jennifer Carlson, R-Churchill, since lawmakers convened in January. 

On Thursday, the Republican-controlled House Judiciary Committee approved five amendments to the original bill text, including voting 12-7 to strike a section that would have allowed parents or guardians to object to the disclosure of confidential records to a Court Appointed Special Advocate (CASA) volunteer. Lawmakers also voted 15-4 to nix part of the bill requiring a law enforcement officer be present at home removals (current law allows the health department to request the presence of an officer during high-risk removals).

Eventually, the committee voted 18-1 to send the bill forward for consideration before the whole House. Rep. Casey Knudsen, R-Malta, was the sole dissenting vote but declined to comment on the record about his decision.

“I am very encouraged to finally have broad bipartisan support for child welfare reform,” Carlson said in a statement after the vote. “This bill will be a huge win for children and families and a giant step toward improving Montana’s child welfare system.”

House Bill 16 — Revise child abuse and neglect proceedings

Sponsor: Rep. Jennifer Carlson, R-Churchill

This bill focuses on the process that begins after the state removes a child, including stricter notification protocols for the Office of State Public Defender and a shortened timeline for court proceedings that will serve as a kind of on-ramp for HB 37.

Responding to recommendations from a working group that studied the issue over the interim, HB 16 would implement a five-day timeline for hearings after removals beginning on July 1, 2023, as well as a requirement for pre-trial conferences with families and the health department before the first hearing. 

The bill eventually passed out of committee unanimously, but not before a lengthy debate between Rep. Neil Duram, R-Eureka, and other committee members about the possibility of shortening the timeline even further.

“If we can’t make this system work in 72 hours, then the system needs to figure out what they’re doing wrong,” Duram said. 

Rep. Laura Smith, D-Helena, who previously worked for the state health department, said that timeline wouldn’t be possible without more time for preparation. 

“The idea of a 72-hour timeline, the idea is excellent,” Smith responded. “But when you look at making it happen, making it happen and making it effective for families and for parents to have meaningful representation, my concern is that 72 hours is not enough to effectuate what we want.”

HB 16 has not yet been heard before the full House. 

Senate Bills 149 — Implementing penalties for false reporting

Sponsor: Sen. Dennis Lenz, R-Billings

SB 149 seeks to curb false and malicious reports of child abuse and neglect. If adopted, SB 149 would make it a misdemeanor to knowingly or purposefully make a false report of suspected child abuse “in bad faith or with malicious purpose.” A person could also be liable for damages up to $2,500, or triple that if they are found to have acted with a malicious purpose.

The bill received support from Nikki Grossberg, the state division administrator who oversees Child Protective Services, as well as the Montana County Attorneys’ Association, in a hearing before the Senate Judiciary Committee in mid-January. It was eventually passed unanimously by the group of 11 bipartisan lawmakers but has not yet been voted on by the Senate. 

Another bill with a similar purpose, Senate Bill 114, would have prohibited anonymous reporting of suspected child abuse or neglect and required for all reporters to provide their name and contact information upon calling in a complaint to the state health department. 

That bill, also sponsored by Sen. Dennis Lenz, R-Billings, received a mixed review from the Senate Public Health, Wellness and Safety Committee after hearing opposition from the county attorneys’ group, a police union and the health department, all of which said anonymous reporting was heavily vetted by Child Protective Services and an important option to protect children in high-risk situations. The bill died on Thursday in a 30-19 vote and was consecutively set aside by lawmakers so it cannot be brought forth for reconsideration this session.

Senate Bill 115 — Redefining ‘psychological abuse’

Sponsor: Sen. Dennis Lenz, R-Billings

Another bill sponsored by Lenz would dig into the definition of “psychological abuse” the health department can consult when deciding whether a child is being abused or neglected.

The original SB 115 text would strike some language that says physical or psychological harm can include a parent or guardian causing a child’s malnutrition, “failure to thrive” or failure to supply “adequate food … clothing, shelter, education, or adequate health care, though financially able to do so or offered financial or other reasonable means to do so.” 

The bill also stipulates that psychological abuse or neglect must be assessed by a licensed psychologist and result in the diagnosis of a mental disorder “recognized in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders,” the bedrock manual for the behavioral health field. 

But an amendment to SB 115 requested by Lenz would insert some of the excised language back into the bill, specifically “causing malnutrition or a failure to thrive.” Another part of the amendment would expand the list of licensed professionals who can diagnose psychological abuse or neglect to include licensed professional counselors and licensed clinical social workers.” 

The bill has not received a vote before the Senate Public Health, Wellness and Safety Committee.

Senate Bill 150 — Limiting drug testing in parental treatment plans

Sponsor: Sen. Dennis Lenz, R-Billings

This proposal, with an amendment suggested by Sen. Lenz, would prohibit the health department from requiring drug testing for parents or guardians after a child has been removed from their home “unless the court finds the substance use of the parent or guardian contributed to the removal of the child from the home or contributes to the child remaining out of the home.”

Explaining his motivation for SB 150 during a January hearing before the Senate Public Health, Wellness and Safety Committee, Lenz said unnecessary drug testing can set parents and families further back in the reunification process. Grossberg, representing the department, also voiced support for the bill.  

Lenz told lawmakers that this and other related bills this session are intended to thin out the stack of requirements for parents who are trying to get their kids back.

“Growing up in the household where there weren’t addictions, it was always obvious to me, ‘Well if you’re using you’re obviously doing something wrong with your children,’” Lenz said. “That is not completely accurate. This is an opportunity to provide a little more redemption within the system.”

The committee has not yet voted on the bill.

Other drafted, unintroduced proposals

As the Legislature’s 90 days tick by, Carlson, Lenz and a few other lawmakers may advance bills targeting other parts of the child welfare system. Some bills, including those to restrict child support payments for parents whose children are in foster care, have multiple versions circulating between the House and Senate.

Although bill texts are not available for all of the proposals, lawmakers and advocates point to policies in the drafting stage — bills to require jury trials for termination of parental rights, expand programs to keep children out of foster care, further define parental rights and apply concepts of the Indian Child Welfare Act to all child removal proceedings. 

To stay up to date on these and other proposals, look up lawmakers and bill drafts using MTFP’s 2023 Capitol Tracker

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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.