Representation of Children in Child Abuse and Neglect Proceedings - Montana

Date: June 2021

Making The Appointment

Citation: Ann. Code §§ 41-3-112; 41-3-425

In every judicial proceeding, the court shall appoint a court-appointed special advocate (CASA) as the guardian ad litem (GAL) for any child alleged to be abused or neglected. If a CASA is not available for appointment, the court may appoint an attorney or other qualified person to serve as the GAL.

Any party involved in a petition filed pursuant to § 41-3-422 has the right to counsel in all proceedings held pursuant to the petition.

Except as provided below, the court shall immediately appoint the Office of State Public Defender to assign counsel for any of the following:

  • Any indigent parent, guardian, or other person having legal custody of a child or youth in a removal, placement, or termination proceeding pursuant to § 41-3-422, pending a determination of eligibility pursuant to § 47-1-111
  • Any child or youth involved in a proceeding under a petition filed pursuant to § 41-3-422 when a GAL is not appointed for the child or youth
  • Any party entitled to counsel at public expense under the Federal Indian Child Welfare Act

When appropriate, the court may appoint the Office of State Public defender to assign counsel for any child or youth involved in a proceeding under a petition filed pursuant to § 41-3-422 when a GAL is appointed for the child or youth.

When appropriate and in accordance with judicial branch policy, the court may assign counsel at the court's expense for a GAL or a CASA involved in a proceeding under a petition filed pursuant to § 41-3-422.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Code § 41-3-1013

Upon its own motion or upon the request of the Department of Public Health and Human Services, the citizen review board, or any interested party, the district court may appoint an attorney or other person as special advocate to represent or appear on behalf of the child. Subject to the direction of the district court, the CASA shall do the following:

  • Investigate all relevant information about the case
  • Advocate for the child, ensuring that all relevant facts are brought before the court
  • Facilitate and negotiate to ensure that the district court, the department, and the child's attorney fulfill their obligations to the child in a timely fashion
  • Monitor all district court orders to ensure compliance and to bring to the district court's attention any change in circumstance that may require modification of the district court's order

Qualifications/Training

Citation: Ann. Code § 41-3-112

The Department of Public Health and Human Services or any member of its staff who has a direct conflict of interest may not be appointed as the GAL in a judicial proceeding under this title.

The GAL must have received appropriate training that is specifically related to serving as a child's court-appointed representative.

Any party may petition the court for the removal and replacement of the GAL if the GAL fails to perform the duties of the appointment.

Specific Duties

Citation: Ann. Code § 41-3-112

The GAL is charged with the representation of the child's best interests and shall perform the following general duties:

  • Conduct investigations to ascertain the facts constituting the alleged abuse or neglect
  • Interview or observe the child who is the subject of the proceeding
  • Have access to court, medical, psychological, law enforcement, social services, and school records pertaining to the child and the child's siblings and parents or custodians
  • Make written reports to the court concerning the child's welfare
  • Appear and participate in all proceedings to the degree necessary to adequately represent the child and make recommendations to the court concerning the child's welfare
  • Perform other duties as directed by the court
  • If the GAL is an attorney, file motions, including, but not limited to, filing to expedite proceedings or otherwise assert the child's rights

Information contained in a report filed by the GAL or testimony regarding a report filed by the GAL is not hearsay when it is used to form the basis of the GAL's opinion as to the best interests of the child.

How the Representative Is Compensated

Citation: Ann. Code §§ 41-3-112; 3-5-901

When necessary, the GAL may serve at public expense.

A State-funded district court program under the judicial branch shall fund all district court costs. These costs include expenses associated with appointment of a GAL or child advocate for the youth.

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