UNAPPROVED DRAFT BILL -- Subject to Change Without Notice!
BILL NO.
INTRODUCED BY
(Primary Sponsor)BY REQUEST OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES
A BILL FOR AN ACT ENTITLED: "AN ACT AUTHORIZING A COURT TO ORDER THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES TO ESTABLISH PARENTAL CONTRIBUTIONS TOWARD A YOUTH'S CARE, CUSTODY, AND TREATMENT; ALLOWING THE DEPARTMENT TO ENTER AN ORDER IN CERTAIN INSTANCES IN THE ABSENCE OF A COURT ORDER; PROVIDING FOR AN ASSIGNMENT OF CHILD SUPPORT; CLARIFYING THE PERIOD OF A PARENT'S OR GUARDIAN'S LIABILITY FOR SUPPORT; AMENDING SECTIONS 40-5-273, 41-3-403, 41-3-411, AND 53-2-613, MCA; AND PROVIDING AN EFFECTIVE DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 40-5-273, MCA, is amended to read:
"40-5-273. Administrative review of child support orders -- modifying orders. (1) A review application setting forth facts meeting any of the criteria for review of a child support order established in 40-5-272 must be scheduled for an administrative review. Unless the department determines under rules of the department that an in-person review is necessary, the review must be conducted by teleconferencing methods. A notice that an administrative review will be conducted must be served either personally or by certified mail on the obligor and the obligee. If service is by certified mail, the department must receive a return receipt signed by the person to whom the notice was mailed for the service to be effective. The notice must include the following information as an exception to 2-4-601:
(a) a statement of the purpose, objectives, and possible consequences of the review;
(b) a statement of the right of the obligor and the obligee to request the department to issue subpoenas compelling the appearance of witnesses and the production of documents for a hearing; and
(c) a requirement that the obligor and the obligee provide the department with telephone numbers at which they and their witnesses may be contacted for the review.
(2) The department may issue an order commanding the obligor or the obligee, or both, to produce financial information. The order must be served either personally or by certified mail with the notice that a review will be conducted. If service is by certified mail, the department must receive a return receipt signed by the person to whom the order was mailed for the service to be effective. The department may also issue subpoenas ordering the parties to produce information in their possession about the obligor and the obligee that may be reasonably necessary for application of the guidelines. Any information so obtained by the department must be provided to the parties before a hearing.
(3) The requested modification of the order must be determined on the evidence submitted to the department under the following conditions:
(a) If an applicant other than the department fails to provide a telephone number for the review or fails to be at the number provided when telephoned for the review, the failure may be considered a withdrawal of the application.
(b) If a party other than the applicant fails to provide a telephone number for the review or fails to be at the number provided when telephoned for the review, the failure is considered to mean that the party does not oppose the modification.
(c) If the department is the applicant and if either the obligor or the obligee, or both, fails to provide a telephone number for the review or fails to be at the number provided when telephoned for the review, the failure may be considered an admission that the party or parties do not oppose the modification.
(4) (a) An order entered under the circumstances described in subsection (3)(a), (3)(b), or (3)(c) becomes final within 30 days of issuance unless a party provides the hearings officer an affidavit showing good cause for failure to provide a telephone number or failure to be available when telephoned.
(b) A proposed modification consent order or notice of proposed modification becomes final 30 days after issuance unless during that period a party files with the department a written request for further administrative proceedings.
(c) The department shall grant a modification hearing if it receives a timely written request by a party aggrieved by the department's determination. The hearing is subject to the provisions of this section relating to a review. The department may adopt rules regulating the fair and efficient conduct of the hearing. Unless the department determines under department rules that an in-person hearing is necessary, the hearing must be conducted by teleconferencing methods.
(5) A provision of law may not be construed to mean that an obligor or an obligee is a client of the department, and the department is not considered a party to the action.
(6) (a) In addition to the powers and duties provided by other law, the department shall, to ensure the equitable determination of a support obligation, during a review:
(i) question witnesses in a nonadversarial manner to elicit full disclosure of all pertinent facts;
(ii) introduce evidence on behalf of the parties;
(iii) apply the guidelines to the facts elicited from the review; and
(iv) inquire as to any circumstances that may require variance from the guidelines.
(b) If a party is represented by legal counsel, the department may allow the counsel to present that party's case.
(7) The department shall determine a support obligation in accordance with the guidelines and shall issue a modifying order. A stipulation by the parties in a proceeding under this section may not be contested before entry of the final department order. If the department determines that the difference between the existing support order and the amount determined under the guidelines is negligible under rules issued by the department, the modifying order may not change the amount of the support obligation. Even though the review may indicate that a modification of the support obligation is appropriate, the department may not modify the support order if the department determines, after the review, that to do so would not be in the best interests of the child under the rules issued by the department. An increase in child support is presumed to be in the best interests of the child unless, after a review, either the obligor or the obligee demonstrates it would not be in the best interests of the child. The modifying order may modify the underlying support order from the date of service of a notice that an administrative review will be conducted under this section and may modify the underlying order from the date found to be the date that the amount required for support decreased. The obligee may be ordered to repay the obligor for any support amount overpayment found to have been paid since the date that the amount required for support decreased. If the case is a IV-D case, the department shall, on request of the obligor, enforce the obligee's repayment of the overpaid amount using any procedure provided in this chapter for payment, enforcement, and collection of child support or a delinquency.
(8) The department shall consider whether or not health insurance for the child is available and shall include an appropriate requirement for the provision of the child's health insurance needs in a modifying order in accordance with part 8 of this chapter.
(9) In addition to complying with other requirements of law, the modifying order must include provisions:
(a) that each party, other than the department, is required to promptly file with the department and update, as necessary, information on:
(i) the identity of the party;
(ii) the party's social security number;
(iii) the party's residential and mailing addresses;
(iv) the party's telephone number;
(v) the party's driver's license number;
(vi) the name, address, and telephone number of the party's employer; and
(vii) if the child is covered by a health or medical insurance plan, the name of the insurance carrier or medical insurance plan, the policy identification number, the names of the persons covered, and any other pertinent information regarding coverage or, if the child is not covered, information as to availability of coverage for the child through the obligor's and obligee's employers;
(b) that in a subsequent child support enforcement action, upon sufficient showing that diligent effort has been made to ascertain the location of a party, the department's due process requirements for notice and service of process are met with respect to the party upon delivery of written notice by regular mail to the most recent known address of the party or the party's employer's address reported to the department; and
(c) that the modifying order is subject to future administrative review and modification by the department upon the request of the department or a party under 40-5-271 through 40-5-273 when the department is providing services under IV-D.
(10) The department shall keep information provided under subsection (9)(a) confidential except as necessary for purposes of Title IV-D of the Social Security Act.
(11) An order entered under this section by the department is a final agency decision, subject to judicial review pursuant to the Montana Administrative Procedure Act, except as provided in 40-5-253. An order entered under this section must notify the parties that the order is subject to judicial review under Title 2, chapter 4, part 7. A final order entered under a stipulation of parties waives the stipulating parties' right to judicial review.
(12) The parties to the support order and the department when it is providing services under IV-D may enforce the
support order or modify that order independently, as provided in 40-4-208 and 53-2-613(5)(d) 53-2-613(6)(d)."
Section 2. Section 41-3-403, MCA, is amended to read:
"41-3-403. Order for immediate protection of youth. (1) (a) Upon the filing of a petition for temporary investigative authority and protective services, the court, after consideration of the parents' statements, if any, included with the petition and any accompanying affidavit or report to the court, may issue an order granting relief that may be required for the immediate protection of the youth.
(b) The order, along with the petition and supporting documents, must be served pursuant to the Montana Rules of Civil Procedure on the person or persons named in the order. When the youth is placed in a medical facility or protective facility, the department shall notify the parents or parent, guardian, or other person having legal custody of the youth, at the time the placement is made or as soon after placement as possible.
(c) The order must require the person served to comply immediately with the terms of the order and to appear before the court issuing the order on the date specified for a show cause hearing. The show cause hearing must be conducted within 20 days of the issuance of the order by the judge or a master appointed by the judge. The person filing the petition has the burden of presenting evidence establishing probable cause for the issuance of the order. At the show cause hearing, the court shall provide an opportunity for a parent or guardian, if present, and any other person having relevant knowledge to provide relevant testimony. The court may consider all relevant evidence in accordance with the rules of civil procedure as modified by this part, but may in its discretion limit testimony and evidence to only that which is relevant to the issues of removal from the home and the child's need for continued protection. The court may amend the order. Except as otherwise provided in this part, the rules of civil procedure apply. Hearsay evidence of statements made by the affected youth is admissible at the hearing or at a contested case proceeding held pursuant to Title 2, chapter 4, part 6, that results from adverse licensing action taken by the department.
(d) If the child is not returned home after the show cause hearing, the person served may request that a local citizen review board, if available pursuant to part 10, review the case within 30 days of the show cause hearing and make a recommendation to the district court, as provided in 41-3-1010.
(e) Upon a failure to comply or show cause, the court may hold the person in contempt or place temporary physical custody of the youth with the department until further order.
(2) At the conclusion of a show cause hearing, in an order granting or denying relief, the court shall make a finding regarding the reasonableness of agency efforts to prevent the child's removal from the home or to make it possible to safely return the child to the child's home. In determining preservation or reunification services to be provided and in making reasonable efforts at providing preservation or reunification services, the child's health and safety are of paramount concern. Reasonable efforts to provide preservation or reunification services are not required if the court finds that the parent has:
(a) subjected a child to aggravated circumstances, including but not limited to abandonment, torture, chronic abuse, or sexual abuse or chronic, severe neglect of a child;
(b) committed, aided, abetted, attempted, conspired, or solicited deliberate or mitigated deliberate homicide of a child;
(c) committed aggravated assault against a child;
(d) committed neglect of a child that resulted in serious bodily injury or death; or
(e) had parental rights to the child's sibling or other child of the parent involuntarily terminated and the circumstances related to the termination of parental rights are relevant to the parent's ability to adequately care for the child at issue.
(3) Preservation or reunification services are not required for a putative father, as defined in 42-2-201, if the court makes a finding that the putative father has failed to do any of the following:
(a) contribute to the support of the child for an aggregate period of 1 year, although able to do so;
(b) establish a substantial relationship with the child. A substantial relationship is demonstrated by:
(i) visiting the child at least monthly when physically and financially able to do so; or
(ii) having regular contact with the child or with the person or agency having the care and custody of the child when physically and financially able to do so; and
(iii) manifesting an ability and willingness to assume legal and physical custody of the child if the child was not in the physical custody of the other parent.
(c) register with the putative father registry pursuant to Title 42, chapter 2, part 2, and the person has not been:
(i) adjudicated in Montana to be the father of the child for the purposes of child support; and
(ii) recorded on the child's birth certificate as the child's father.
(4) If the court finds that preservation or reunification services are not necessary pursuant to subsection (2), a permanency hearing must be held within 30 days of that determination and reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.
(5) If reasonable efforts have been made to prevent removal of a child from the home or to return a child to the child's home but continuation of the efforts is determined by the court to be inconsistent with the permanency plan for the child, the department shall make reasonable efforts to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child. Reasonable efforts to place a child permanently for adoption or to make an alternative out-of-home permanent placement may be made concurrently with reasonable efforts to return a child to the child's home.
(6) The court may grant the following kinds of relief:
(a) right of entry by a peace officer or department worker;
(b) medical and psychological evaluation of the youth or parents, guardians, or person having physical or legal custody;
(c) requirement that the youth, parents, guardians, or person having physical or legal custody receive counseling services;
(d) placement of the youth in a temporary medical facility or a facility for protection of the youth;
(e) requirement that the parents, guardian guardians, or other person having physical or legal custody furnish
information that the court may designate;
(f) inquiry into the financial ability of the parents, guardian guardians, or other person having custody of the youth to
contribute to the costs for the care, custody, and treatment of the youth and:
(i) requirement of a contribution for those costs pursuant to the requirements of 41-3-411; or
(ii) requirement that the department refer the case to the administrative agency with authority to enter child support orders for entry of a contribution order under the procedure contained in 40-5-225 through 40-5-227, 40-5-231 through 40-5-238, 40-5-242 through 40-5-244, 40-5-247, 40-5-248, 40-5-251 through 40-5-257, 40-5-261 through 40-5-264, and 40-5-271; or
(g) other temporary disposition that may be required in the best interests of the youth that does not require an expenditure of money by the department unless the department is notified and a court hearing is set in a timely manner on the proposed expenditure. The department is the payor of last resort after all family, insurance, and other resources have been examined.
(7) An order for temporary investigative authority and protective services may not be issued for a period longer than 90 days following the show cause hearing and must be limited to one extension of 90 days. Before the expiration of the time provided for in an order for temporary investigative authority and protective services, the county attorney, the attorney general, or an attorney hired by the county shall file a petition for one of the following:
(a) limited emancipation;
(b) temporary legal custody;
(c) termination of the parent-child legal relationship and permanent legal custody with the right to consent to adoption; or
(d) dismissal.
(8) Notwithstanding the above time limits provided for in subsection (7), the court may continue an order for temporary
investigative authority pending a hearing on a petition provided for in subsection (7).
(9) If the time limitations of this section are not met, the court shall review the reasons for the failure and order an appropriate remedy that considers the best interests of the child."
Section 3. Section 41-3-411, MCA, is amended to read:
"41-3-411. Contributions by parents or guardians for youth's care. (1) If physical or legal custody of the youth is transferred to the department, the court shall examine the financial ability of the youth's parents or guardians to pay a contribution covering all or part of the costs for the care, custody, and treatment of the youth, including the costs of necessary medical, dental, and other health care.
(2) If the court determines that the youth's parents or guardians are financially able to pay a contribution as provided in
subsection (1), the court shall order the youth's parent or guardian to pay an a specified amount. The amount must be based
on the uniform child support guidelines adopted by the department of public health and human services pursuant to
40-5-209.
(3) A parent's or guardian's liability for contributions begins 90 days after the date on which the youth is removed from the home and continues until the youth is physically returned to the parent or guardian, the youth becomes emancipated, the liability is terminated by order of the court, or the parental or guardianship rights to the child are terminated.
(4) (a) The court may require the parent or guardian to assign to the department any rights that the parent or guardian may have to an existing child support order for the youth that are not otherwise assigned under 53-2-613. The assignment of a child support obligation:
(i) is effective for both current and accrued support;
(ii) takes effect 90 days after the date on which the youth is transferred to the custody of the department; and
(iii) remains in effect until the youth is physically returned to the parent or guardian, the youth becomes emancipated, the assignment is terminated by order of the court, or the parental or guardianship rights to the child are terminated and until all arrears that are owed prior to the termination of the department's custody are paid.
(b) The assignment of a child support obligation under this subsection (4) does not relieve the parent or guardian of the requirement to pay a contribution ordered under subsection (2).
(3)(5) (a) Except as provided in subsection (3)(b) (5)(b), contributions ordered under this section and each modification
of an existing order are enforceable by immediate or delinquency income withholding, or both, under Title 40, chapter 5,
part parts 3 and 4. An order for a contribution that is inconsistent with this section is nevertheless subject to withholding for
the payment of the contribution without need for an amendment of the support order or for any further action by the court.
(b) A court-ordered exception from contributions under this section must be in writing and must be included in the order. An exception from the immediate income withholding requirement may be granted if the court finds that there is:
(i) good cause not to require immediate income withholding; or
(ii) an alternative arrangement between the department and the person who is ordered to pay contributions.
(c) A finding of good cause not to require immediate income withholding must, at a minimum, be based upon:
(i) a written determination and explanation by the court of the reasons why the implementation of immediate income withholding is not in the best interests of the child; and
(ii) proof of timely payment of previously ordered support in cases involving modification of contributions ordered under this section.
(d) An alternative arrangement must:
(i) provide sufficient security to ensure compliance with the arrangement;
(ii) be in writing and be signed by a representative of the department and the person required to make contributions; and
(iii) if approved by the court, be entered into the record of the proceeding.
(4)(6) Upon a showing of a change in the financial ability of the youth's parent or guardian to pay, the court may modify
its order for the payment of contributions required under subsection (2). A modification must be based on the uniform child
support guidelines adopted under 40-5-209.
(5)(7) (a) If the court orders the payment of contributions under this section, the department shall apply to the
department of public health and human services for support enforcement services refer the case to the administrative agency
with authority to enforce child support orders for enforcement of the contribution order pursuant to Title IV-D of the Social
Security Act.
(b) The department of public health and human services may collect and enforce a contribution order and an assignment
of a child support obligation under this section by any means available under law, including the remedies provided for in
Title 40, chapter 5, parts 2 and 4.
(8) A contribution order issued by the court must include the provision required by 40-4-204(6)(a), and the court must comply with and the order must be in compliance with 40-4-204(6)(b) and (6)(c).
(9) The court may order the department to refer the case to the administrative agency with authority to enter child support orders for entry of a contribution order, using the procedure contained in 40-5-225 through 40-5-227, 40-5-231 through 40-5-238, 40-5-242 through 40-5-244, 40-5-247, 40-5-248, 40-5-251 through 40-5-257, 40-5-261 through 40-5-264, and 40-5-271.
(10) If a court order for transfer of physical or legal custody of the youth to the department does not contain a specified amount of a contribution or a requirement that the department refer the case to the administrative agency with authority to enter child support orders for entry of a contribution order, the department may refer the case to the administrative agency with authority to enter child support orders for entry of a contribution order, as provided for in subsection (2), using the procedure contained in 40-5-225 through 40-5-227, 40-5-231 through 40-5-238, 40-5-242 through 40-5-244, 40-5-247, 40-5-248, 40-5-251 through 40-5-257, 40-5-261 through 40-5-264, and 40-5-271."
Section 4. Section 53-2-613, MCA, is amended to read:
"53-2-613. Application for assistance -- assignment of support rights. (1) Applications for public assistance, including but not limited to FAIM financial assistance, as defined in 53-2-902, and medical assistance, must be made to the county department of public welfare in the county in which the person is residing. The application must be submitted, in the manner and form prescribed by the department, and must contain information required by the department.
(2) A person who signs an application for FAIM financial assistance, as defined in 53-2-902, or related medical
assistance assigns to the state, to the department, and to the county welfare department all rights that the applicant may have
to monetary and medical support from any other person in the applicant's own behalf or in on behalf of any other family
member for whom application is made. A person who signs an application for public assistance other than FAIM financial
assistance, as defined in 53-2-902, or related medical assistance may, in accordance with rules adopted by the department,
be required to assign to the state, to the department, and to the county welfare department all rights that the applicant may
have to monetary and medical support from any other person in the applicant's own behalf or on behalf of any other family
member for whom application is made.
(3) The assignment:
(a) is effective for both current and accrued support, including unpaid support that accrued before the applicant received public assistance, and medical obligations;
(b) takes effect upon a determination that the applicant is eligible for public assistance; and
(c) remains in effect with respect to the amount of any unpaid support and medical obligation accrued under the assignment that was owed prior to the termination of public assistance to a recipient.
(4) (a) If a child is placed in a youth care facility by the department pursuant to an abuse or neglect proceeding under Title 41, chapter 3, part 3 or 4, or by consent of the person having legal custody of the child and the child thereby becomes eligible for or could be eligible for public assistance or medical assistance under this chapter, any right that the child has to receive financial and medical support from the child's parent is assigned to the department.
(b) If an existing support order is in effect, the department may apply to any court or administrative agency with authority to enter child support orders for an order requiring a parent not required to pay support under the existing order to pay child support to the department for the period when the child is in the department's physical or legal custody.
(c) If an existing support order is not in effect, the department may apply to any court or administrative agency with authority to enter child support orders for an order requiring either parent or both parents to pay child support to the department for the period when the child is in the department's physical or legal custody.
(d) An assignment under subsection (4)(a) is effective 90 days after the date on which the child is placed in a youth care facility by the department and, except for any amount of unpaid support and medical support accrued under the assignment, terminates when the child is no longer in a youth care facility. Unless inconsistent with this subsection (4), the provisions of subsection (6) concerning an assignment apply to this subsection (4).
(4)(5) If a person who is the legal custodian and child support obligee under a support order relinquishes physical
custody of a child to a caretaker relative without obtaining a modification of legal custody and the caretaker relative is
determined eligible for public assistance on behalf of the child, the child support obligation is transferred by operation of law
to the caretaker relative and may be assigned as provided in subsection (2). The transfer and assignment terminate when the
caretaker relative no longer has physical custody of the child, except for any unpaid support still owing under the assignment
at that time.
(5)(6) Whenever If a child support or spousal support obligation is assigned to the department pursuant to this section,
the following provisions apply:
(a) If the support obligation is based upon a judgment or decree or an order of a court of competent jurisdiction, the department may retain assigned support amounts in an amount sufficient to reimburse the cumulative total of public assistance money expended.
(b) A recipient or former recipient of public assistance may not commence or maintain an action to recover or enforce a delinquent support obligation or make any agreements with any other person or agency concerning the support obligation, except as provided in 40-5-202.
(c) If a notice of assigned interest is filed with the district court, the clerk of the court may not pay over or release for the benefit of any recipient or former recipient of public assistance any amounts received pursuant to a judgment or decree or an order of the court until the department's child support enforcement division has filed a written notice that:
(i) the assignment of current support amounts has been terminated; and
(ii) all assigned support delinquencies, if any, are satisfied or released.
(d) A recipient or former recipient of public assistance may not take action to modify or make any agreement to modify, settle, or release any past, present, or future support obligation unless the department's child support enforcement division is given written notice under the provisions of 40-5-202. Any modifications or agreements entered into without the participation of the department are void with respect to the state, the department, and the county welfare department.
(e) A support obligation assigned under this section may not be terminated, invalidated, waived, set aside, or considered uncollectible by the conduct, misconduct, or failure of a recipient or former recipient of public assistance to take any action or to cease any action required under a decree, judgment, support order, custody order, visitation order, restraining order, or other similar order."
NEW SECTION. Section 5. Effective date. [This act] is effective July 1, 2001.
- END -
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