Montana Code 41-3-1311. Notice
41-3-1311. (Temporary) Notice. (1) The petitioning party shall provide notice of the initial petition filed in an involuntary child custody proceeding and a petition seeking termination of parental rights when the petitioning party knows or has reason to know that the child is or may be an Indian child. Notice must be provided as required in subsection (2) to:
Terms Used In Montana Code 41-3-1311
- 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
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Department: means the department of public health and human services provided for in 2-15-2201. See Montana Code 41-3-1303
- 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
- Indian tribe: has the meaning provided in 41-3-1303. See Montana Code 41-3-102
- membership: means a determination by an Indian tribe that an individual is a member of or eligible for membership in that Indian tribe. 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
- Person: includes a corporation or other entity as well as a natural person. See Montana Code 1-1-201
- Protective services: means services provided by the department:
(i)to enable a child alleged to have been abused or neglected to remain safely in the home;
(ii)to enable a child alleged to have been abused or neglected who has been removed from the home to safely return to the home; or
(iii)to achieve permanency for a child adjudicated as a youth in need of care when circumstances and the best interests of the child prevent reunification with parents or a return to the home. See Montana Code 41-3-102
- Termination of parental rights: means any action resulting in the termination of the parent-child relationship. See Montana Code 41-3-1303
- tribe: means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the secretary of the interior because of their status as Indians. See Montana Code 41-3-1303
(a)the Indian child‘s parent or Indian custodian; and
(b)the child’s tribe or tribes.
(2)(a) Notice to the tribe must be made by certified mail, return receipt requested, and must meet the requirements of subsection (4). The notice must be sent to the person designated in the most current Federal Register as the designated tribal agent for service of notice for the purposes of the federal Indian Child Welfare Act. The petitioning party shall file the return receipt with the court as proof of notice.
(b)Notice to the parent or Indian custodian must be made by personal service, or alternative means as provided in 41-3-422 if personal service cannot be accomplished, and must meet the requirements of subsection (4).
(c)If the identity or location of the parent or Indian custodian and the tribe cannot be determined, the notice must be given to the secretary of the U.S. department of the interior by certified mail, return receipt requested, in accordance with the provisions of 25 CFR, part 23.
(d)Service of all other petitions, other than the initial petition and a petition for termination of parental rights, must be served on the tribe by first-class mail unless otherwise directed by the tribe’s designated agent for notice.
(e)When notice of the initial petition and a petition for termination of parental rights to the parent or Indian custodian is required under this subsection (2), personal service, and alternative means of personal service when personal service cannot be accomplished, as provided in 41-3-422, takes the place of certified mail with return receipt requested.
(3)A foster care placement or a termination of parental rights proceeding may not be held until at least 10 days after receipt of the notice by the parent or Indian custodian, the tribe, and, if applicable, the secretary. The parent, Indian custodian, or tribe shall, on request, be granted up to 20 additional days to prepare for the proceeding. The 10-day notice requirement does not limit a court’s ability to hold an emergency protective services hearing pursuant to 41-3-306.
(4)Notice provided under this section must be in clear and understandable language and include the following:
(a)the child’s name, date of birth, and place of birth;
(b)all known names of the child’s parents, including maiden, married, and former names or aliases;
(c)the parents’ dates of birth, places of birth, and tribal enrollment numbers, if known;
(d)the names, dates of birth, places of birth, and tribal enrollment information of other direct lineal ancestors of the child, if known;
(e)the name of each Indian tribe in which the child is a member or may be eligible for membership if a biological parent is a member; and
(f)a copy of the petition, complaint, or other document by which the child custody proceeding was initiated and, if a hearing has been scheduled, information on the date, time, and location of the hearing. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)