Montana Code 41-3-1329. Placement preferences
41-3-1329. (Temporary) Placement preferences. (1) When an emergency removal, foster care placement, or preadoptive placement of an Indian child is necessary, the petitioning party shall, in the absence of good cause to the contrary, place the Indian child in the least restrictive setting that:
Terms Used In Montana Code 41-3-1329
- Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
- 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
- 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.
- extended family member: means an individual defined by the law or custom of the Indian child's tribe as a relative of the Indian child. 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 tribe: has the meaning provided in 41-3-1303. See Montana Code 41-3-102
- 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
- Permanent placement: means reunification of the child with the child's parent, adoption, placement with a legal guardian, placement with a fit and willing relative, or placement in another planned permanent living arrangement until the child reaches 18 years of age. See Montana Code 41-3-102
- Preadoptive placement: means the temporary placement of an Indian child in a foster home or institution after the termination of parental rights but before or in lieu of adoptive placement. 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
- Writing: includes printing. See Montana Code 1-1-203
(a)most closely approximates a family situation;
(b)is in reasonable proximity to the Indian child’s home; and
(c)allows for the Indian child’s special needs, if any, to be met.
(2)In a foster care or preadoptive placement, preference must be given, in the absence of good cause to the contrary, to the Indian child’s placement with one of the following, in descending order of priority:
(a)an Indian child’s extended family member;
(b)a foster home licensed, approved, or specified by the Indian child’s tribe;
(c)an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(d)an institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child’s needs.
(3)In the absence of good cause to the contrary, in an adoptive or other permanent placement of an Indian child, preference must be given to a placement with one of the following, in descending order of priority:
(a)extended family members;
(b)an Indian family of the same tribe as the Indian child;
(c)another Indian family.
(4)Notwithstanding the placement preferences listed in subsections (2) and (3), if a different order of placement preference is established by the Indian child’s tribe, the court or agency implementing the placement shall follow the order of preference established by the tribe if the placement is in the least restrictive setting appropriate to the particular needs of the Indian child and within reasonable proximity to the child’s home.
(5)When appropriate, the preference of the Indian child or the child’s parent must be considered by the court.
(6)The standards to be applied in meeting the preference requirements of this section must be the prevailing social and cultural standards of the Indian community in which the parent or extended family members of an Indian child reside or with which the parent or extended family members maintain social and cultural ties.
(7)Nothing in this section prevents the department or the court from placing an Indian child with a parent to effectuate a permanency plan regardless of the parent’s relationship to the Indian child’s tribe.
(8)(a) If any party asserts that good cause to not follow the placement preferences exists, the reasons for that belief or assertion must be stated orally on the record or provided in writing to the parties to the child custody proceeding and the court.
(b)The party seeking departure from the placement preferences bears the burden of proving by clear and convincing evidence that there is good cause to depart from the placement preferences.
(c)A court’s determination of good cause to depart from the placement preferences must be made on the record or in writing and must be based on one or more of the following considerations:
(i)the request of one or both of the Indian child’s parents on attestation that they have reviewed the placement options, if any, that comply with the order of preference provided for in subsections (2) and (3);
(ii)the request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;
(iii)the presence of a sibling attachment that can be maintained only through a particular placement;
(iv)the extraordinary physical, mental, or emotional needs of the Indian child, including but not limited to specialized treatment services that may be unavailable in the community where families who meet the placement preferences live; or
(v)the unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but no suitable placement was found. For the purposes of this analysis, the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child’s parent or extended family resides or with which the Indian child’s parent or extended family members maintain social and cultural ties.
(d)A placement may not depart from the preferences based on the socioeconomic status of any placement relative to another placement. (Terminates June 30, 2025–sec. 55, Ch. 716, L. 2023.)