Grounds for Involuntary Termination of Parental Rights - Montana

Grounds for Termination of Parental Rights
Citation: Ann. Code §§ 41-3-423; 41-3-609

The court may order a termination of parental rights upon a finding established by clear and convincing evidence that any of the following circumstances exist:

• The child has been abandoned.
• The parent has been convicted of a felony sexual offense that resulted in the birth of the child.
• The parent has done any of the following:
  • Subjected a child to aggravated circumstances, including, but not limited to, abandonment, torture, chronic abuse, sexual abuse, or chronic and severe neglect
  • Committed, aided, abetted, attempted, conspired, or solicited deliberate or mitigated deliberate homicide of a child
  • Committed aggravated assault against a child
  • Committed neglect of a child that resulted in serious bodily injury or death
  • Had parental rights to the child's sibling or other child of the parent involuntarily terminated, and the circumstances related to the termination of parental rights are relevant to the parent's ability to adequately care for the child at issue
• A putative father has failed to do any of the following:
  • Contribute to the support of the child for an aggregate period of 1 year, although able to do so
  • Establish a substantial relationship with the child, as demonstrated by visiting the child at least monthly or maintaining regular contact when physically and financially able to do so
  • Manifest an ability and willingness to assume legal and physical custody of the child if the child is not in the physical custody of the other parent
  • Register with the putative father registry
• Reasonable efforts to rehabilitate the parent have failed.
• The conduct or condition of the parent makes the parent unfit, unable, or unwilling to give the child adequate parental care. In making the determinations, the court shall consider, but is not limited to, the following:
  • Emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time
  • A history of violent behavior by the parent
  • Excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent's ability to care for and provide for the child
  • Incarceration of the parent for more than 1 year, and reunification of the child with the parent is not in the best interests of the child because of the child's circumstances, including placement options, age, and developmental, cognitive, and psychological needs

Timeframes for Termination Proceedings
Citation: Ann. Code § 41-3-604

If a child has been in foster care under the physical custody of the State for 15 months of the most recent 22 months, the best interests of the child must be presumed to be served by termination of parental rights. If a child has been in foster care for 15 months of the most recent 22 months or if the court has found that reasonable efforts to preserve or reunify a child with the child's parent or guardian are not required pursuant to § 41-3-423, a petition to terminate parental rights must be filed.

If a court makes a finding of abandonment or that reasonable efforts to provide preservation or reunification to the family are not necessary, a petition to terminate parental rights must be filed within 60 days of the finding.

Exceptions 
Citation: Ann. Code §§ 41-3-604; 41-3-609(5)

Filing a petition to terminate parental rights is not required when any of the following apply:

• The child is being cared for by a relative.
• The Department of Public Health and Human Services has not provided the services considered necessary for the safe return of the child to the child's home.
• The department has documented a compelling reason, available for court review, for determining that filing a petition to terminate parental rights would not be in the best interests of the child.

Compelling reasons for not filing a petition to terminate parental rights include, but are not limited to, the following:

• There are insufficient grounds for filing a petition.
• There is adequate documentation that termination of parental rights is not the appropriate plan and not in the best interests of the child.

If a proceeding under this chapter involves an Indian child and is subject to the Federal Indian Child Welfare Act or the Montana 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 Indian child.

When Parental Rights May Be Reinstated
Citation: Ann. Stat. § 41-3-615

A child whose parent's rights were terminated or a party whose parental rights were terminated may petition the court to reinstate parental rights if all the following apply:

• The child was adjudicated to be a youth in need of care.
• The parental rights of the child's parent were terminated in a proceeding under this chapter.
• The child has not achieved the child's permanency plan, or the permanency plan has not been sustained.
• Two years have passed since the final order terminating parental rights was entered.

If a parent of a child eligible to petition for reinstatement of parental rights contacts the department or the child's guardian ad litem regarding reinstatement of parental rights, the department or the guardian ad litem shall notify the child about the child's right to petition for reinstatement of parental rights under this section.

If, after considering the parent's fitness and interest in reinstatement of parental rights, the court finds that the best interests of the child may be served by reinstatement of parental rights, the court shall order that a hearing on the merits of the petition be held.

After a hearing, the court shall conditionally grant the petition, reinstating the rights of one or both parents, if the court finds by clear and convincing evidence that all the following apply:

• Both the parent and the child consent to the reinstatement of parental rights.
• That either of the following apply:
  • The child has not achieved the child's permanency plan and is not likely to imminently achieve his or her permanency plan.
  • The child has not sustained his or her permanency plan.
• Reinstatement of parental rights is in the child's best interests.
• In determining whether the child has achieved the child's permanency plan or is likely to achieve his or her permanency plan, the court shall review information provided by the department related to any efforts to achieve the permanency plan, including efforts to achieve adoption or a permanent guardianship.

In determining whether reinstatement of parental rights is in the child's best interests, the court shall consider, but is not limited to, the following:

• Whether the parent whose rights are to be reinstated is a fit parent and has remedied the parent's deficiencies documented in the record of the termination proceedings and in the termination order
• Whether the child can express his or her preference
• Whether the reinstatement of parental rights will present a risk to the child's health, welfare, or safety
• Whether the benefit to the child of reinstatement of parental rights outweighs the potential lack of permanency for the child
• Whether other material changes in circumstances exist that would warrant reinstating parental rights

 If the court conditionally grants the petition, the proceedings must be continued for 6 months, and a temporary order of reinstatement must be entered. During this time, the child must be placed in the parent's custody, and the department shall develop a reunification plan for the child and provide transition services to the family, as appropriate. If at any time the department alleges that the child has been abused or neglected by the parent, the department shall petition the court for an order dismissing the temporary reinstatement of parental rights. The court shall grant the petition based on a preponderance of the evidence that the child has been abused or neglected.

After the child has successfully been placed with the parent for 6 months, the court shall enter a final order reinstating parental rights that restores all rights, powers, privileges, immunities, duties, and obligations of the parent to the child, including those relating to custody, control, and support of the child. The court shall direct the clerk of court to provide a certified copy of the final order of reinstatement of parental rights to the parent at no cost.

A parent whose rights are reinstated may not be held liable for any child support owed to the department or costs of other services provided to the child for the period beginning on the date parental rights were terminated and ending on the date parental rights were reinstated.