Montana Code 41-3-1320. Evidentiary requirements
41-3-1320. (Temporary) Evidentiary requirements. (1) A court may not order a foster care placement of an Indian child unless:
Terms Used In Montana Code 41-3-1320
- Active efforts: means affirmative, active, thorough, and timely efforts meeting the requirements of 41-3-1319 that are intended primarily to maintain or reunite an Indian child with the child's family and that are tailored to the facts and circumstances of the case. See Montana Code 41-3-1303
- Child custody proceeding: means any state or private proceeding, other than an emergency proceeding, that may culminate in a foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. See Montana Code 41-3-1303
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Foster care placement: means an action removing an Indian child from the child's parent or Indian custodian for temporary placement in a foster home or institution or with a relative, guardian, conservator, or suitable other person under which the parent or Indian custodian may not have the child returned on demand but parental rights have not been terminated. See Montana Code 41-3-1303
- Indian: means a person who is a member of an Indian tribe or who is an Alaska Native and a member of a regional corporation as established in 43 U. See Montana Code 41-3-1303
- Indian child: means an unmarried Indian person who is under 18 years of age and who is:
(a)a member of an Indian tribe; or
(b)eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. See Montana Code 41-3-1303
- Indian custodian: means an Indian person who under tribal law, tribal custom, or state law has legal or temporary physical custody of an Indian child or to whom the parent has transferred temporary care, physical custody, and control of the Indian child. See Montana Code 41-3-1303
- Parent: means a biological parent of an Indian child or an individual who has lawfully adopted an Indian child, including adoptions made as tribal customary adoptions. See Montana Code 41-3-1303
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(a)the petitioning party has provided clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs to prevent the breakup of an Indian family and that the efforts were unsuccessful; and
(b)clear and convincing evidence is presented, including the testimony of one or more qualified expert witnesses, to demonstrate that continued custody by the child’s parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
(2)The court may not terminate parental rights of the parents of an Indian child unless evidence beyond a reasonable doubt is presented that:
(a)active efforts were made to prevent the breakup of the Indian family and the efforts were unsuccessful; and
(b)continued custody of the child by the child’s parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The evidence must include testimony of one or more qualified expert witnesses.
(3)(a) Evidence required under this section must show a causal relationship between the specific conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the child who is the subject of the child custody proceeding.
(b)Evidence showing only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)