Montana lawmakers move forward with child protective reforms, including using warrants

State lawmakers moved forward with a bill that, among other things, would require Child Protective Services, to obtain a warrant to remove a child from their home in most cases.

The decision to move the legislation forward came in the face of objections from the Department of Health and Human Services — the agency that oversees CPS — which said the new requirements would create more danger for children and more burden for CPS. The bill passed from the committee on a 6-4 vote.

Along with requiring a warrant for removing a child unless the child is likely to experience sexual abuse or serious bodily injury before a warrant can be obtained, the bill would also require children removed from homes to receive a public defender and would require district courts to hold a first-appearance hearing within 72 hours of a child’s removal — down from the previous requirement of five days.

In a letter to the Children, Families, Health and Human Services Interim Committee, dated Aug. 25, DPHHS Director Charlie Brereton outlined the department’s concern with the new rule.

“As it is currently drafted, (the bill) elevates protections for individuals suspected of abuse and neglect above the rights of those children whose health and welfare have been found to be at imminent risk of harm,” Brereton wrote in the letter.

Chad Parker, legal counsel for DPHHS, spoke specifically about the department’s concerns about the warrant requirement at Friday’s meeting.

“I believe that there are sufficient checks and balances currently with regards to child removal, such that the delays that could incur from a warrant requirement create more harm than they solve,” he said.

DPHHS said that it has also rendered the warrant requirement unnecessary because the department has been able to reduce removals by 42% since 2019.

But Rep. Danny Tenenbaum, D-Missoula, who played a significant role in drafting the legislation, said the bill was necessary to comply with constitutional due process requirements.

At Friday’s meeting, Dana Toole, Justice Special Services Bureau Chief with the Montana Department of Justice, also pushed back against language in the bill that would limit the definition of “neglect” when it comes to child removals and prohibit removals solely based on things like parental substance abuse, disorderly living conditions, factors related to economic status, or childhood obesity.

“When there are drugs or alcohol, substance abuse disorders or drugs available and accessible in a home, where there is an infant … then parenting is impaired,” Toole said. She continued, “So I am concerned that changes in code about decisions to remove infants could increase child fatalities in Montana.”

Rep. Ed Stafman, D-Bozeman, who leads the committee, tried to level with the department by proposing an amendment that would give the department more leeway for warrantless removals, but the amendment failed on a 7-2 vote.

Manhattan Republican Jennifer Carlson will carry the bill in the 2023 legislative session.