Montana Code 41-3-1326. Consent
41-3-1326. (Temporary) Consent. (1) At an involuntary foster care placement hearing, a stipulation or consent by the parent or Indian custodian is not valid unless the court certifies on the record that the terms and consequences of the stipulation or consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall certify on the record that the parent or Indian custodian fully understood the explanation in English or that the explanation was translated into a language that the parent or Indian custodian understood.
Terms Used In Montana Code 41-3-1326
- Adoptive placement: means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. 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
- Fraud: Intentional deception resulting in injury to another.
- 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
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- 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
- Termination of parental rights: means any action resulting in the termination of the parent-child relationship. See Montana Code 41-3-1303
- Writing: includes printing. See Montana Code 1-1-203
(2)In a voluntary proceeding for foster care placement or termination of parental rights, consent by a parent or Indian custodian is not valid unless the consent is:
(a)executed in writing and recorded before a judge of a court of competent jurisdiction; and
(b)accompanied by the judge’s written certificate that:
(i)the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian; and
(ii)the parent or Indian custodian fully understood the explanation in English or that the explanation was translated into a language that the parent or Indian custodian understood.
(3)Voluntary consent for release of custody given prior to or within 10 days after the birth of an Indian child may not be considered valid.
(4)An Indian child’s parent or Indian custodian may withdraw consent to a voluntary foster care placement at any time. On withdrawal of consent, the Indian child must be returned to the parent or Indian custodian.
(5)In a voluntary proceeding for termination of parental rights to or adoptive placement of an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of an order terminating parental rights or a final decree of adoption, and the Indian child must be returned to the parent.
(6)(a) After the entry of a final decree of adoption of an Indian child, the parent may withdraw consent to the adoption on the grounds that consent was obtained through fraud or duress. On a finding that consent was obtained through fraud or duress, the court shall vacate the decree and return the Indian child to the parent.
(b)An adoption that has been effective for at least 2 years may not be invalidated under this section unless otherwise allowed by law. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)