Montana Code 41-3-1319. Active efforts
41-3-1319. (Temporary) Active efforts. (1) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that the efforts have proven unsuccessful.
Terms Used In Montana Code 41-3-1319
- 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
- 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
- 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
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- Termination of parental rights: means any action resulting in the termination of the parent-child relationship. See Montana Code 41-3-1303
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- 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
(2)The court shall make written findings that the petitioning party has provided active efforts and the efforts must be documented in detail in the record.
(3)If the department is involved in the child custody proceeding, active efforts must include assisting the parent, parents, or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan.
(4)(a) To the maximum extent possible, active efforts must be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child‘s tribe and conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and tribe. Active efforts are to be tailored to the facts and circumstances of the case and may include but are not limited to:
(i)conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal;
(ii)identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining the services;
(iii)identifying, notifying, and inviting representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues;
(iv)conducting or causing to be conducted a diligent search for the Indian child’s extended family members and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents;
(v)offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s tribe;
(vi)taking steps to keep siblings together whenever possible;
(vii)supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child;
(viii)identifying community resources, including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the child’s parents or, when appropriate, the child’s family, in accessing and using the resources;
(ix)monitoring progress and participation in services;
(x)considering alternative ways to address the needs of the Indian child’s parents and, when appropriate, the family, if the optimum services do not exist or are not available; and
(xi)providing postreunification services and monitoring.
(b)Referral to a service or program does not constitute an active effort if the referral was the sole action taken. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)