Montana Adoption Statute and Law
Montana Code
Title 42: Adoption
Chapters 1- 10
(This page was last updated on 09/10/13.)
CHAPTER 1. GENERAL ADOPTION PROVISIONS
CHAPTER 2. ADOPTION OF CHILD
CHAPTER 3. REQUIREMENTS OF PARTIES IN ADOPTION
CHAPTER 4. PLACEMENTS FOR ADOPTION
CHAPTER 5. LEGAL PROCEEDINGS
CHAPTER 6. RECORDS
CHAPTER 7. FEES AND PROHIBITED ACTIVITIES RELATED TO ADOPTION
CHAPTER 8. LICENSING OF CHILD PLACEMENT AGENCY
CHAPTER 9 RESERVED RESERVED.
CHAPTER 10. SUBSIDIZED ADOPTIONS
CHAPTER 1. GENERAL ADOPTION PROVISIONS
Part 1. Adoption Policy and Procedures
42-1-101. Short title. This title may be cited as the "Montana Adoption Act".
42-1-102. Adoption policy. (1) It is the policy of the state of Montana to ensure that the best interests of the child are met by adoption proceedings.
(2) The primary purpose of adoption is to help a child become a permanent member of a nurturing family that can give the child the care, protection, and
opportunities essential for healthy personal growth and development.
(3) The well-being of the adopted child is the main objective in the placement of a child for adoption. The needs of the child must be the primary focus
of adoption proceedings, with full recognition of the interdependent needs and interests of birth parents and adoptive parents.
(4) It is the policy of the state of Montana to support relationships between adoptees and their birth families when desired by the affected parties.
42-1-103. Definitions. As used in this title, unless the context requires otherwise, the following definitions apply:
(1) "Adoptee" means an adopted person or a person who is the subject of adoption proceedings that are intended to result in the adoptee becoming
the legal child of another person.
(2) "Adoption" means the act of creating the legal relationship between parent and child when it does not exist genetically.
(3) "Adoptive parent" means an adult who has become the mother or father of a child through the legal process of adoption.
(4) "Agency" means a public or nonprofit entity that is licensed by any jurisdiction of the United States and that is expressly empowered to place
children preliminary to a possible adoption.
(5) "Birth parent" means the woman who gave birth to the child or the father of genetic origin of the child.
(6) "Child" means any person under 18 years of age.
(7) "Confidential intermediary" means a person certified by the department and under contract with or employed by a nonprofit entity with expertise
in adoption.
(8) "Court" means a court of record in a competent jurisdiction and in Montana means a district court or a tribal court.
(9) "Department" means the department of public health and human services, provided for in 2-15-2201.
(10) "Direct parental placement adoption" means an adoption in which the parent of the child places the child with a prospective adoptive parent
personally known and selected by the parent independent of an agency.
(11) "Extended family member" means a person who is or was the adoptee's parent, grandparent, aunt or uncle, brother or sister, or child.
(12) "Identifying information" means information that directly reveals or indirectly indicates the identity of a person and includes the person's
name or address.
(13) "Nonidentifying information" means information that does not directly reveal or indirectly indicate the identity of a person, including:
(a) medical information and information related to general physical characteristics;
(b) family information, including marital status and the existence of siblings;
(c) religious affiliation;
(d) educational background information that does not reveal specific programs or institutions attended;
(e) general occupation;
(f) hobbies; and
(g) photographs provided by any of the parties involved that were specifically intended to be provided to another party.
(14) "Parent" means the birth or adoptive mother or the birth, adoptive, or legal father whose parental rights have not been terminated.
(15) "Placing parent" means a parent who is voluntarily making a child available for adoption.
(16) "Preplacement evaluation" means the home study process conducted by the department or a licensed child-placing agency that:
(a) assists a prospective adoptive parent or family to assess its own readiness to adopt; and
(b) assesses whether the prospective adoptive parent or family and home meet applicable standards.
(17) "Records" means all documents, exhibits, and data pertaining to an adoption.
(18) "Relinquishment" means the informed and voluntary release in writing of all parental rights with respect to a child by a parent to an agency
or individual.
42-1-104. Venue. (1) Proceedings for adoption must be brought in the district court of the county where the petitioners reside.
(2) Petitions for appointment of a confidential intermediary may be filed:
(a) in the county where the decree of adoption was issued;
(b) in the county of residence of the petitioner; or
(c) if the petitioner resides out of state, in any county.
42-1-105. Who may be adopted. (1) A child is legally free for adoption if:
(a) the child does not have a living parent;
(b) the parental rights of the living parents of the child have been terminated according to the laws of this state or of another jurisdiction; or
(c) the living parents, guardian authorized by the court, or department or agency with custody of the child consent to the adoption.
(2) An adult may be adopted as provided in 42-4-401 through 42-4-405.
(3) A stepchild may be adopted as provided in 42-4-301 through 42-4-304 and 42-4-309 through 42-4-312.
42-1-106. Who may adopt. The following individuals who otherwise meet the requirements of this title are eligible to adopt a child:
(1) a husband and wife jointly or either the husband or wife if the other spouse is a parent of the child;
(2) an unmarried individual who is at least 18 years of age; or
(3) a married individual at least 18 years of age who is legally separated from the other spouse or whose spouse has judicially been declared incompetent.
42-1-107. Adoption prohibited if child not legally free. (1) An adoption decree may not be entered if the child who is the subject of an adoption proceeding
is not legally free for adoption.
(2) A child may be placed for adoption only by:
(a) the department or another agency to which the child has been relinquished for purposes of adoption;
(b) the department or another agency expressly authorized to place the child for adoption by a court order terminating the relationship between the child
and the child's parent or guardian;
(c) the child's parents; or
(d) a guardian expressly authorized by the court to place the child for adoption.
42-1-108. Rights and responsibilities of parties in adoption proceedings. (1) The legislature finds that the rights and interests of all parties affected
by an adoption proceeding must be considered and balanced in determining the necessary constitutional protection and appropriate processes.
(2) The legislature finds that:
(a) every child deserves to be raised by a family in which support and care are promptly provided by one or more parents in a nurturing environment on a
regular and ongoing basis;
(b) the state has a compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of
adoptive placements, and in holding parents accountable for meeting the needs of children;
(c) an unmarried mother, faced with the responsibility of making crucial decisions about the future of a newborn child, is entitled to privacy, has the
right to make timely and appropriate decisions regarding the mother's future and the future of the child, and is entitled to assurance regarding the permanence
of an adoptive placement;
(d) adoptive children have a right to permanence and stability in adoptive placements;
(e) adoptive parents have a constitutionally protected liberty and privacy interest in retaining custody of an adopted child; and
(f) a birth father who is not married to the child's mother has the primary responsibility to protect the father's rights. The father's inchoate interest
in the child requires constitutional protection only when the father has demonstrated a timely commitment to the responsibilities of parenthood, both during
pregnancy and upon the child's birth. The state has a compelling interest in requiring a birth father to demonstrate that commitment by:
(i) timely and consistently providing financial support;
(ii) complying with the requirements of the putative father registry; and
(iii) demonstrating the establishment of a substantial relationship with the child as described in 42-2-610.
(3) If a birth father who is not married to the child's mother fails to grasp the opportunities that are available to the father to establish a relationship
with the child, the father's parental rights will be lost entirely by the failure to timely exercise it or by the failure to comply with the available legal
steps to substantiate the parental interest.
42-1-109. Need for finality -- balancing of interests. Finality is necessary in order to facilitate the state's compelling interest. The legislature
finds that the interests of the child outweigh the interests of the state, the mother, the adoptive parents, and a birth father who is not married to the
child's mother.
42-1-110. Presumed knowledge that child may be adopted without notice. A birth father who is not married to the mother of the child is presumed to know
that the child may be adopted without the father's consent and that the father is required to comply with the provisions of this title and manifest a commitment
to the father's parental responsibilities.
42-1-111. Unmarried birth mother's right of privacy. An unmarried birth mother has a right of privacy with regard to the mother's pregnancy and adoption
plan. Birth mothers are encouraged to provide all known information about the birth father of any child for whom an adoption is planned.
42-2-101. Recognition of adoption in another jurisdiction. (1) A decree or order of adoption has the same effect as a decree or order of adoption issued
by a court of this state if the decree or order is:
(a) issued by a court of any other state that is entitled to full faith and credit in this state; or
(b) entered by a court or administrative entity in another country acting pursuant to:
(i) that country's law; or
(ii) to any convention or treaty on intercountry adoption that the United States has ratified.
(2) The rights and obligations of the parties as to matters within the jurisdiction of this state must be determined as though the decree or order were
issued by a court of this state.
42-2-102. Proceedings subject to Indian Child Welfare Act. A proceeding under this title that pertains to an Indian child, as defined in the Indian
Child Welfare Act of 1978, 25 U.S.C. 1901, et seq., is subject to that act.
42-2-103. Interstate placement. The Interstate Compact on the Placement of Children, Title 41, chapter 4, governs:
(1) an adoption in this state of a child brought into this state from another state by a prospective adoptive parent;
(2) a person residing in or an agency doing business from another state who places the child for adoption in this state; and
(3) the placement of a Montana child in another state.
42-2-104. International placement. An adoption in this state of a child brought into this state from another country by a prospective adoptive parent
or by a person who places the child for adoption in this state is governed by this title and is subject to any convention or treaty governing adoption that
the United States has ratified and to any relevant federal law.
42-2-105. Fees for services -- special revenue account -- statutory appropriation. (1) The department shall establish fees that it may charge and that
are reasonably related to the cost incurred by the department in completing or contracting for adoption services.
(2) The department may contract with licensed social workers or licensed child-placing agencies for the purposes of completing the preplacement or postplacement
evaluation or for providing postplacement supervision.
(3) An agency contracting to perform the services may set and charge a reasonable fee commensurate with the services provided.
(4) There is an adoption services account in the state special revenue fund. The fees collected by the department under this title and from the district
court filing fee pursuant to 25-1-201(1)(q) must be deposited into this account and may be used by the department for adoption services. The money in the
account is statutorily appropriated, as provided in 17-7-502, to the department.
42-2-106. Rulemaking authority. The department may adopt rules to implement the administration and purposes of this title.
42-2-201. Definitions. As used in this part, unless the context requires otherwise, the following definitions apply:
(1) "Child" includes an unborn child.
(2) (a) "Putative father" means an individual who may be a child's birth father but who:
(i) is not married to the child's mother on or before the date that the child is born; or
(ii) has not established paternity of the child prior to the filing of a petition for termination of parental rights to the child for purposes of adoption.
(b) The term includes an individual who is:
(i) less than 18 years of age; and
(ii) not married to the child's mother even though the individual is a presumed father within the meaning of 40-6-105.
(3) "Registry" means the putative father registry established under 42-2-202.
42-2-202. Putative father registry. The putative father registry is established within the vital statistics bureau of the department. The department shall
adopt rules to administer the registry.
42-2-203. Purpose of registry. (1) The purpose of the putative father registry is to provide notice of termination of parental rights to a putative
father who asserts a parental interest in a child so that the putative father may appear in a proceeding and have an opportunity to establish that the putative
father's inchoate rights in the child have vested because a substantial relationship with the child has been established as provided in 42-2-610.
(2) In addition to any other notice to which the putative father is entitled, a putative father of a child who complies with the requirements of the putative
father registry is entitled to notice of any proceedings involving termination of parental rights to the child.
42-2-204. Presumed knowledge of pregnancy -- duty to register to be afforded notice -- putative and presumed fathers. (1) A person who engages in sexual
relations with a member of the opposite sex is presumed to know that a pregnancy could result.
(2) In addition to any other notice to which the putative father is entitled, a putative father is entitled to notice of termination of parental rights
proceedings for the purposes of adoption if the putative father has complied with the requirements of the putative father registry.
(3) An individual who is not married to the mother but who is presumed to be a father under 40-6-105 and registers in accordance with this part is entitled
to receive notice of a termination of parental rights proceeding.
42-2-205. Registration. (1) In addition to any other notice to which the putative father is entitled, a putative father is entitled to notice of any
proceedings to terminate parental rights involving a child whom the putative father might have fathered if the putative father timely files the following
information with the department:
(a) the putative father's:
(i) full name;
(ii) address at which the putative father may be served by certified mail, return receipt requested, with notice of a proceeding to terminate parental rights;
(iii) social security number;
(iv) date of birth; and
(v) tribal affiliation if applicable;
(b) the mother's:
(i) name, including all other names known to the putative father that the mother uses; and
(ii) address, social security number, and date of birth, if known;
(c) the child's:
(i) name and place of birth, if known; or
(ii) the approximate date and location of a possible conception and the approximate expected date of delivery.
(2) If a putative father does not have an address where the putative father can receive notice of a termination of parental rights proceeding, the putative
father may designate another person as an agent for the purpose of receiving notice. The putative father shall provide the department with the agent's name
and the address at which the agent may be served. Service of notice by certified mail, return receipt requested, constitutes service of notice upon the
putative father.
(3) A putative father shall register under this section on a registration form prescribed by the department or with a legibly typed or handwritten statement
that provides the required information and that is submitted to the department pursuant to 42-2-207. The registration must be signed by the putative father
and notarized.
(4) A putative father who registers under this section is responsible for providing written updates regarding any change of the putative father's name or
address.
42-2-206. When putative father to register -- actual knowledge of pregnancy not required. (1) In order to be entitled, because of registration, to receive
notice of a termination of parental rights proceeding, a putative father's registration form complying with the requirements of 42-2-205 must be received
by the department not later than 72 hours after the child's birth.
(2) A putative father may file all information required by 42-2-205 before a child's birth even though the putative father has no actual knowledge that
a pregnancy has occurred or that a pregnancy has continued through gestation.
42-2-207. How registration submitted. A putative father shall submit a registration form:
(1) in person; or
(2) by facsimile transmission, mail, private courier, or express delivery service.
42-2-208. Burden of putative father to preserve rights upon receipt of notice. When a putative father receives notice that a child in whom the putative
father claims a parental interest is the subject of a termination of parental rights proceeding, the putative father must appear at the hearing held on
the petition to terminate parental rights and demonstrate, at a minimum, that the criteria set out in 42-2-610 for determining whether the putative father
has made reasonable efforts to establish a substantial relationship with the child who is the subject of the proceedings have been met.
42-2-209. Presumption created -- admissibility in other proceedings. A person filing a registration form is presumed to be the father of the child for
purposes of adoption unless the mother denies that the registrant is the father. The registration or any revocation that is filed is admissible in a paternity
proceeding and creates a rebuttable presumption as to the paternity of the child. The registration creates a rebuttable presumption as to paternity of the
child for purposes of an abuse or neglect proceeding under Title 41, chapter 3, or a child support enforcement action under Title 40, chapter 5.
42-2-210 through 42-2-213 reserved.
42-2-214. Duties of department. (1) The department shall:
(a) prescribe a registration form for the information that a putative father submits under 42-2-205; and
(b) make the registration forms available through:
(i) the department;
(ii) each clerk of a district court; and
(iii) each local health department.
(2) A notice provided by the department that informs the public about the purpose and operation of the registry must be posted in a conspicuous place by
each:
(a) clerk of a district court;
(b) driver's examination station of the motor vehicle division of the department of justice;
(c) local health department; and
(d) county clerk and recorder.
(3) The notice under subsection (2) must include information regarding:
(a) where to obtain a registration form;
(b) where to register;
(c) the circumstances under which a putative father is required to register;
(d) the period under 42-2-206 during which a putative father is required to register in order to entitle the putative father to receive notice of an adoption;
(e) the information that must be provided for the registry and what other actions the putative father is required to take to preserve a right to notice;
(f) the consequences of not submitting a timely registration; and
(g) the penalties for filing a false claim with the putative father registry.
42-2-215. Information maintained in registry. The department shall maintain the following information in the registry:
(1) the registration information provided by the putative father under 42-2-205;
(2) the date that the department receives a putative father's registration;
(3) the name and affiliation of any person who requests that the department search the registry to determine whether a putative father is registered in
relation to a mother whose child is or may be the subject of a termination proceeding and the date the request is submitted; and
(4) any other information that the department determines is necessary to access the information in the registry.
42-2-216. Storage of data. The department shall store the registry's data in a manner so that the data is accessible through:
(1) the putative father's name;
(2) the mother's name, including her maiden name, if known;
(3) the date of birth of the putative father, the mother, and the child, if known;
(4) the child's name, if known; and
(5) the social security number for the putative father, the mother, and the child, if known.
42-2-217. Registry search -- request -- affidavit. (1) The following persons may at any time request that the department search the registry to determine
whether a putative father is registered in relation to a child who is or may be the subject of a proceeding to terminate parental rights:
(a) a representative of the department;
(b) a representative of an agency when the agency is or may be arranging an adoption;
(c) a prospective adoptive parent or an attorney representing a prospective adoptive parent in a direct parental placement adoption who has the notarized
consent of the birth mother; or
(d) any woman who is the subject of a registration.
(2) Upon request of a person listed in subsection (1), the department shall submit an affidavit pursuant to the requirements of subsections (4) and (5).
(3) A request for information about a registration from the department must be in writing.
(4) Not later than 5 days after receiving a request for a registry search, the department shall submit an affidavit to the requestor verifying whether a
putative father has registered within the period allowed under 42-2-206 in relation to a mother whose child or expected child is the subject of the termination
proceeding.
(5) Whenever the department finds that one or more putative fathers are registered, the department shall:
(a) submit a copy of each registration form with the department's affidavit; and
(b) include in the affidavit the date that the department representative, agency, or attorney submitted the request for the search.
(6) A court may not issue an order terminating parental rights unless the department's affidavit under subsection (5) is filed with the court.
42-2-218. Duties of department upon receipt of request. (1) Whenever the department receives a request, the department shall:
(a) search its records of putative father registrations and search its records for any acknowledgment of paternity filed pursuant to 40-6-105; and
(b) notify the requestor as to whether a paternity action has been filed and a paternity order issued to the department requiring the issuance of a new
birth certificate concerning a child who is or may be the subject of an adoption that the attorney or agency is arranging.
(2) The department may charge a reasonable fee for responding to a request under this section.
42-2-219 through 42-2-221 reserved.
42-2-222. Failure of agency to post notice. Failure of an agency to post a proper notice under 42-2-214 does not relieve a putative father of the obligation
to register with the department in accordance with the putative father registry in order to entitle the putative father, because of registration, to notice
of proceedings involving a child who may have been fathered by the putative father.
42-2-223. Revocation of registration. Unless a support order has been issued, a putative father may revoke a registration at any time by submitting
to the department a signed, notarized statement revoking the registration.
42-2-224. Certified copy of registration form to be furnished upon request. The department shall furnish a certified copy of the putative father's registration
form upon written request by:
(1) a putative father whose name appears on the registration form being requested;
(2) a mother whose name appears on the registration form being requested;
(3) upon reaching majority, a person who was the subject of a registration;
(4) a prospective adoptive parent or an attorney representing a prospective adoptive parent in a direct parental placement adoption who has the notarized
consent of the birth mother;
(5) a licensed child-placing agency;
(6) a court that presides over a pending adoption;
(7) the child support enforcement division of the department; or
(8) a representative of the department involved in an adoption or a neglect and dependency proceeding under Title 41, chapter 3.
42-2-225. Information confidential. Except as otherwise provided in this part, information contained within the registry is confidential.
42-2-226. Registration of false information -- criminal and civil penalties A person who purposely or knowingly registers false information or requests
confidential information in violation of a putative father registry commits a misdemeanor and may be civilly liable for damages.
42-2-227 through 42-2-229 reserved.
42-2-230. Responsibility of each party to protect interests -- putative fathers -- fraud no defense. (1) The legislature finds no practical way to remove
all risk of fraud or misrepresentation in adoption proceedings and has provided protection of a putative father's rights. In balancing the rights and interests
of the state and of all parties affected by fraud, specifically the child, the adoptive parents, and the putative father, the legislature determines that
the putative father is in the best position to prevent or ameliorate the effects of fraud and that, therefore, the burden of establishing fraud against
the putative father by clear and convincing evidence must be born by the putative father.
(2) Each parent of a child conceived or born outside of marriage to the other parent is responsible for that parent's own actions and assertion of their
parental rights notwithstanding any action, statement, or omission of the other parent or third parties.
(3) A person injured by fraudulent representations or actions in connection with an adoption is entitled to pursue civil or criminal penalties. A fraudulent
representation is not a defense for failure to comply with the requirements of the putative father registry and is not a basis for dismissal of a petition
for adoption, vacation of an adoption decree, or an automatic grant of custody to the injured party.
(4) A putative father who resides in another state may contest an adoption prior to issuance of a decree of adoption and may assert the putative father's
interest in the child. If the adoption is contested, the court shall hold an evidentiary hearing to determine if:
(a) the putative father resides and has resided in another state where the unmarried mother lived or resided either at the time of conception or through
a portion of the pregnancy;
(b) the mother left that state, concealing the location from the putative father regarding where the mother could be contacted or located;
(c) the father has, through every reasonable means, attempted to locate the mother but has been unable to do so; and
(d) the putative father has complied with the requirements of the state where the mother previously resided or was located in order to protect and preserve
the putative father's parental interest and rights concerning the child in cases of adoption.
42-2-301. Consent required. An adoption of a child may be decreed when written consents to adoption have been executed by:
(1) the birth mother;
(2) the husband of the birth mother if the husband is the presumed father of the child under 40-6-105;
(3) any other person whose parental rights have been established by a court;
(4) the department or an agency that has custody of the child and the authority to place the child for adoption;
(5) the legal guardian of the child if both parents are dead or their rights have been judicially terminated and the guardian has authority by order of
the court appointing the guardian to consent to the adoption;
(6) the child, either in writing or in court, if the child is 12 years of age or older unless the child does not have the mental capacity to consent.
42-2-302. Persons whose consent not required. Consent to adoption of a child is not required from:
(1) an individual whose parental relationship to the child has been judicially terminated for unfitness or has been determined not to exist or who has waived
parental rights;
(2) a parent who has been judicially declared incompetent;
(3) an individual who has not been married to the mother of the child and who, after the conception of the child, executes a notarized statement denying
paternity or a notarized statement acknowledging paternity and denying any interest in the child; or
(4) the personal representative of a deceased parent's estate.
42-2-303. Form of consent. The consents required by 42-2-301 must be acknowledged before an officer authorized to take acknowledgments or witnessed
by a representative of the department, an agency, or the court.
42-2-401. Child available for adoption -- voluntary acts of parents. A parent may voluntarily make a child available for adoption by:
(1) executing a voluntary relinquishment and consent to adoption;
(2) executing a denial of paternity; or
(3) submitting a notarized acknowledgment of paternity and a denial of any interest in custody of the child.
42-2-402. Voluntary relinquishment -- validity. (1) A voluntary relinquishment is not valid unless the parent specifically relinquishes custody of the
child to the department, a licensed child-placing agency, or a specifically identified prospective adoptive parent and:
(a) the department or agency to whom the child is being relinquished has agreed in writing to accept custody of the child until the child is adopted; or
(b) the identified prospective adoptive parent has agreed in writing to accept temporary custody and to provide support and care to the child until that
person's adoption petition is granted or denied.
(2) A voluntary relinquishment of a parent's rights solely to the child's other parent does not relieve the parent executing the relinquishment of any duty
owed to the child or for the child's support.
42-2-403. Arrearages of child support -- responsibility to child. (1) A voluntary relinquishment of a parent's rights and responsibilities toward a
child does not cancel any responsibility to pay arrearages of child support unless the party to whom the arrearages are owed agrees in writing to waive
the payment of the arrearages.
(2) A parent who executes a voluntary relinquishment of rights and responsibilities toward a child remains financially responsible for the child until a
court actually terminates parental rights to the child.
42-2-404. Who may relinquish -- to whom. (1) A parent or guardian whose consent to the adoption of a child is required may relinquish to the department
or an agency all rights with respect to the child, including legal and physical custody and the right to consent to the child's adoption.
(2) A parent or guardian whose consent to the adoption of a child is required and who has filed a notice of parental placement under 42-4-103 for a direct
parental placement adoption may:
(a) relinquish to the prospective adoptive parent all rights with respect to the child, including legal and physical custody; and
(b) consent to the child's adoption by the prospective adoptive parents.
42-2-405. Relinquishment by minor parent -- separate legal counsel in direct parental placement adoption. (1) A parent who is a minor has the right
to relinquish all rights to that minor parent's child and to consent to the child's adoption. The relinquishment is not subject to revocation by reason
of minority.
(2) In a direct parental placement adoption, a relinquishment and consent to adopt executed by a parent who is a minor is not valid unless the minor parent
has been advised by an attorney who does not represent the prospective adoptive parent. Legal fees charged by the minor parent's attorney are an allowable
expense that may be paid by prospective adoptive parents under 42-7-101, subject to the limitations in 42-7-102.
(3) If in the court's discretion it is in the best interest of justice, the court may order the office of state public defender, provided for in 47-1-201, to assign counsel to represent the minor parent.
42-2-406 through 42-2-407 reserved.
42-2-408. Time and prerequisites for execution of relinquishment and consent to adoption -- copy of preplacement evaluation -- notarization. (1) A parent
whose consent to the adoption of a child is required may execute a relinquishment and consent to adoption only after the following criteria have been met:
(a) the child has been born;
(b) not less than 72 hours have elapsed since the birth of the child;
(c) the parent has received counseling in accordance with 42-2-409; and
(d) in a direct parental placement adoption:
(i) the parent has been informed that fees for any required counseling and legal fees are allowable expenses that may be paid by a prospective adoptive
parent under 42-7-101, subject to the limitations set in 42-7-102;
(ii) if the parent is a minor, the parent has been represented by separate legal counsel; and
(iii) prior to the execution of the relinquishment, the parent has been provided a copy of the preplacement evaluation prepared pursuant to 42-3-204 pertaining
to the prospective adoptive parent.
(2) A guardian may execute a relinquishment and consent to adopt at any time after being authorized by a court.
(3) The department or a licensed child-placing agency may execute a consent for the adoption at any time before or during the hearing on the petition for
adoption.
(4) A child whose consent is required may execute a consent at any time before or during the hearing on the petition to adopt.
(5) Except as provided in this section, a relinquishment and consent to adopt must be a separate instrument executed before a notary public.
(6) If the person from whom a relinquishment and consent to adopt is required is a member of the armed services or is in prison, the relinquishment may
be executed and acknowledged before any person authorized by law to administer oaths.
42-2-409. Counseling requirements. (1) Counseling of the birth mother is required in department, agency, and direct parental placement adoptions. If
any other parent is involved in an adoptive placement, counseling of that parent is encouraged.
(2) Counseling must be performed by a person employed by the department or by a staff person of a licensed child-placing agency designated to provide this
type of counseling. Unless the counseling requirement is waived for good cause by a court, a minimum of 3 hours of counseling must be completed prior to
execution of a relinquishment of parental rights and consent to adopt. A relinquishment and consent to adopt executed prior to completion of required counseling
is void.
(3) During counseling, the counselor shall offer an explanation of:
(a) adoption procedures and options that are available to a parent through the department or licensed child-placing agencies;
(b) adoption procedures and options that are available to a parent through direct parental placement adoptions, including the right to an attorney and that
legal expenses are an allowable expense that may be paid by a prospective adoptive parent as provided in 42-7-101 and 42-7-102;
(c) the alternative of parenting rather than relinquishing the child for adoption;
(d) the resources that are available to provide assistance or support for the parent and the child if the parent chooses not to relinquish the child;
(e) the legal and personal effect and impact of terminating parental rights and of adoption;
(f) the options for contact and communication between the birth family and the adoptive family;
(g) postadoptive issues, including grief and loss;
(h) the reasons for and importance of providing accurate medical and social history information under 42-3-101;
(i) the operation of the confidential intermediary program; and
(j) the fact that the adoptee may be provided with a copy of the original birth certificate upon request after reaching 18 years of age, unless the birth
parent has specifically requested in writing that the vital statistics bureau withhold release of the original birth certificate.
(4) The counselor shall prepare a written report containing a description of the topics covered and the number of hours of counseling. The report must specifically
include the counselor's opinion of whether or not the parent understood all of the issues and was capable of informed consent. The report must, on request,
be released to the person counseled, to the department, to an agency, or with the consent of the person counseled, to an attorney for the prospective adoptive
parents.
42-2-410. Revocation of relinquishment and consent. (1) The parent who executed the relinquishment and consent to adopt and the department, agency,
or prospective adoptive parent named or described in the relinquishment and consent to adopt may mutually agree to its revocation prior to the issuance
of an order terminating parental rights.
(2) A relinquishment may not be revoked if an order has been issued terminating parental rights.
42-2-411. Conditional relinquishment and consent. (1) A relinquishment and consent to adopt may provide that it not take effect only if:
(a) the other parent does not execute a relinquishment and consent to adopt within a specified period; or
(b) a court decides to not terminate another individual's parental relationship to the child.
(2) A relinquishment and consent to adopt may not be conditioned on whether or not existing agreements for matters, including but not limited to visitation
and ongoing communication with the child, are later performed.
42-2-412. Content of relinquishment and consent to adopt. (1) A relinquishment and consent to adopt must be in writing and must contain:
(a) the date, place, and time of the execution of relinquishment and consent to adopt;
(b) the name, date of birth, and current mailing address of the individual executing the relinquishment and consent to adopt;
(c) the date of birth and the name of the child to be adopted; and
(d) the name, address, and telephone numbers of the department or agency to which the child is being relinquished or the name, address, and telephone numbers
of the prospective adoptive parent with whom the individual executing the relinquishment and consent has placed or intends to place the child for adoption.
(2) A relinquishment and consent to adopt executed by a parent or guardian must state that the parent or guardian executing the document is voluntarily
and unequivocally consenting to the:
(a) permanent transfer of legal and physical custody of the child to the department or agency for the purposes of adoption; or
(b) transfer of permanent legal and physical custody to, and the adoption of the child by, a specific identified adoptive parent whom the parent or guardian
has selected.
(3) A relinquishment and consent to adopt must state:
(a) that after the document is signed or confirmed in substantial compliance with this section, it is final and, except under a circumstance stated in 42-2-411,
may not be revoked or set aside for any reason, including the failure of an adoptive parent to permit the individual executing the relinquishment and consent
to adopt to visit or communicate with the child;
(b) that the relinquishment will result in the extinguishment of all parental rights and obligations that the individual executing the relinquishment and
consent to adopt has with respect to the child, except for arrearages of child support unless the arrearages are waived by the person to whom they are owed,
and that the relinquishment will remain valid whether or not any agreement for visitation or communication with the child is later performed;
(c) that the individual executing the relinquishment and consent to adopt has:
(i) received a copy of the relinquishment and consent to adopt;
(ii) received a copy of a written agreement by the department, agency, or prospective adoptive parent to accept temporary custody and to provide support
and care to the child until an adoption petition is granted or denied;
(iii) if required, received counseling services pursuant to 42-2-409 explaining the meaning and consequences of an adoption;
(d) in direct parental placement adoptions, that the individual has:
(i) if a minor parent, been advised by a lawyer who is not representing the adoptive parent;
(ii) if an adult, been advised of the right to have a lawyer who is not representing the adoptive parent;
(iii) been advised that the attorney fees are allowable expenses that can be paid by the prospective adoptive parents; and
(iv) been provided with a copy of the prospective adoptive parent's preplacement evaluation;
(e) in agency and direct parental placement adoptions, that the individual has:
(i) been advised of the obligation to provide the medical and social history information required under 42-3-101 pertaining to disclosures; and
(ii) not received or been promised any money or anything of value for execution of the relinquishment and consent to adopt, except for payments authorized
by 42-7-101 and 42-7-102.
(4) A relinquishment and consent to adopt may provide that the individual who is relinquishing waives notice of any proceeding for adoption.
42-2-413. Consequences of relinquishment and consent to adopt. Except under a circumstance stated in 42-2-411 a relinquishment and consent to the adoption
of a child that is executed by a parent or guardian in substantial compliance with 42-2-412 is final and irrevocable. The relinquishment and consent to
adopt:
(1) unless a court orders otherwise to protect the welfare of the child, entitles the department, agency, or prospective adoptive parent named or described
to the legal and physical custody of the child and imposes on that department, agency, or prospective adoptive parent responsibility for the support and
medical and other care of the child;
(2) terminates, as provided in 42-2-403, any duty of the parent who executed the document with respect to the child except for arrearages of child support;
and
(3) terminates any right of the parent or guardian who executed the document to:
(a) object to the placement of the child for adoption by the department or agency; and
(b) object to the child's adoption by the prospective adoptive parent.
42-2-414 through 42-2-416 reserved.
42-2-417. Grounds for court to set aside relinquishment and consent. (1) The court shall set aside a relinquishment and consent to adopt if the individual
who executed the relinquishment and consent establishes:
(a) by clear and convincing evidence, before a decree of adoption is issued, that the consent was obtained by fraud or duress; or
(b) by a preponderance of the evidence, that a condition permitting revocation has occurred, as expressly provided for in 42-2-411.
(2) A verbatim record of testimony must be made.
42-2-418. Remedy when relinquishment and consent to adopt revoked or set aside -- expediency. (1) If a relinquishment and consent to adopt that was
executed by an individual is revoked or set aside, the department, agency, or prospective adoptive parent shall immediately return the child to the individual's
custody and move to dismiss a proceeding for adoption or termination of the individual's parental rights to the child unless:
(a) the department has legal custody pursuant to a court order;
(b) there are grounds for the department to seek a court order under the provisions of Title 41, chapter 3; or
(c) the individual did not have legal custody of the child at the time the relinquishment and consent to adopt was executed.
(2) In the circumstances described in subsections (1)(a) through (1)(c) and when there is no existing court order providing for care and custody, the court
shall issue an order providing for the care and custody of the child according to the best interests of the child under any law applicable to the circumstances
of the case.
(3) Except as provided in subsection (1), if after revocation or the setting aside of a relinquishment or consent a child is not returned immediately by
the department, agency, or prospective adoptive parent, the individual may petition the court for appropriate relief. The action must take precedence over
other cases and matters in the court. The court shall examine the petition, hear the case, and render a decision as soon as possible.
42-2-419 through 42-2-420 reserved.
42-2-421. Notarized denial of paternity -- no entitlement to notice. (1) Execution of a notarized denial of paternity of a child is a voluntary act
that constitutes a waiver of all parental rights to the child, except for the duty to pay support if paternity is established or presumed.
(2) A notarized denial of paternity is irrevocable when executed. An individual who has executed a denial of paternity toward a child who is the subject
of adoption proceedings is not entitled to notice of either the hearing to terminate parental rights or the hearing on an adoption petition.
42-2-422. Notarized acknowledgment of paternity and denial of interest in custody -- no entitlement to notice. (1) Submission of a notarized acknowledgment
of paternity and a denial of any interest in the custody of the child is a voluntary act that constitutes a waiver of all parental rights to the child but
does not absolve the person of the duty to pay support.
(2) An individual who has executed an acknowledgment of paternity and denial of interest in the custody in a child who is the subject of adoption proceedings
is not entitled to notice of either the hearing to terminate parental rights or the hearing on an adoption petition unless, subsequent to execution of the
acknowledgment of paternity and denial of interest in custody, the individual has complied with all of the requirements of 42-2-205 and has done so within
the time limits established in 42-2-206.
42-2-501. Timing of proceedings to terminate. (1) In order to provide notice to a putative father at the earliest possible time of an expectant mother's
intent to release an expected child for adoption and in order to facilitate early placement of a child for adoption, an expectant mother may initiate proceedings
to terminate paternal rights by filing a petition of intent to place a child for adoption prior to the birth of the child.
(2) A petition to terminate parental rights may also be filed after a child is born.
42-2-502. Expected child -- filing of petition indicating intent to release or consent to adoption. (1) A pregnant individual may file a petition with
the court indicating the intention to place an expected child for adoption.
(2) The petition must include the following information:
(a) the individual's intent to release the expected child for adoption;
(b) the approximate date and location of conception;
(c) the expected date of delivery;
(d) any information concerning the identity and whereabouts of any putative or presumed father of the expected child; and
(e) in a situation in which there is a presumed father, the grounds upon which the individual relies in contending that the nonexistence of the father and
child relationship can be established in an action brought under 40-6-107.
(3) The petition may allege more than one putative or presumed father.
(4) The petition must be signed by the petitioner and notarized.
42-2-503. Notice to any named father of intent to release child for adoption. (1) Upon the filing of the petition under 42-2-502, the court shall issue
a notice of intent to release a child for adoption.
(2) The notice must be served by the petitioner, in the manner provided by the Montana Rules of Civil Procedure, upon each putative or presumed father at
least 20 days prior to the expected date of birth of the child. Proof of service must be filed with the court.
(3) A notice of intent to release directed to a putative father must indicate the approximate date and location of conception of the child and the expected
date of birth and must inform the putative father:
(a) that the putative father is required to appear at the hearing at the time and date set by the court;
(b) of the rights and responsibilities to which the putative father will be entitled upon registering with the putative father registry; and
(c) that the failure to timely comply with all requirements of filing with the putative father registry:
(i) constitutes a waiver of the right to receive the notice provided for in 42-2-205; and
(ii) may result in the court's termination of the putative father's rights to the child.
(4) In addition to the information contained in subsection (3), a notice of intent to release directed to an individual presumed to be the father under
40-6-105 must also indicate the intention of the mother to ask for a declaration establishing the nonexistence of the father and child relationship and
the grounds for seeking the declaration.
42-2-601. Venue. Proceedings to terminate parental rights may be filed in the court in the county in which a petitioner resides, the child resides,
or an office of the agency that is placing the child is located.
42-2-602. Necessity for parental rights to be terminated. A child is not legally free for adoption until the parental rights of the birth parent or
parents have been terminated by a court:
(1) as provided in this title;
(2) pursuant to Title 41, chapter 3; or
(3) of competent jurisdiction in another state or country.
42-2-603. Petition for termination of parental rights. (1) Pending the termination or other disposition of the rights of the father of the child, the
birth mother may execute a relinquishment and consent to adoption.
(2) The department, a licensed child-placing agency, the prospective adoptive parent to whom the relinquishment is issued, or a guardian with custody of
the child shall file with the court a signed and notarized petition for termination of parental rights pursuant to Title 41, chapter 3, or pursuant to this
title.
(3) At the request of the relinquishing parent, the execution of a relinquishment may be conditioned as set forth in 42-2-411.
(4) Pending disposition of the petition, the court may enter an order authorizing temporary care of the child.
42-2-604. Contents of petition for termination of parental rights. (1) The petition for termination of parental rights must state:
(a) the identity of the petitioner;
(b) the date and location of the birth of the child;
(c) the date of the relinquishment by the birth mother or relinquishing parent;
(d) the current location of the child;
(e) the names and locations, if known, of any putative or presumed father of the child;
(f) whether a parent is one from whom consent is not required;
(g) whether court orders from any other proceeding have been issued terminating parental rights to the child that is the subject of the petition;
(h) any other evidence supporting termination of the legal rights that a person has with regard to the child; and
(i) a request for temporary custody of the child prior to the adoption.
(2) The petitioner shall file with the petition for termination of parental rights the following documents received in support of the petition:
(a) any relinquishments and consents to adoption;
(b) any denials of paternity;
(c) any acknowledgments of paternity and denial of parental rights;
(d) any affidavits from the putative father registry that have been executed by the department;
(e) a counseling report required under 42-2-409;
(f) proof of prior service of any notice or acknowledgment of service or waiver of service received; and
(g) proof of compliance with the Indian Child Welfare Act of 1978 and Interstate Compact on the Placement of Children, if applicable.
42-2-605. Notice of hearing -- service. (1) Notice of a hearing to be held on the petition for termination of parental rights must be served in any manner
appropriate under the Montana Rules of Civil Procedure or in any manner that the court may direct on:
(a) a putative or presumed father who has timely and properly complied with the putative father registry;
(b) a putative father who was not served with a notice of intent to release at least 20 days before the expected date of birth as specified in the notice
of intent to release;
(c) a person adjudicated, in Montana, to be the father of the child for the purpose of child support;
(d) a person who is recorded on the child's birth certificate as the child's father;
(e) a person who is openly living with the child and the child's mother at the time that the proceeding is initiated or at the time the child was placed
in the care of an authorized agency and who is representing to the public that the person is the child's father;
(f) a spouse, if the parent relinquishing the child for adoption was married to that person at the time of conception of the child or at any time after
conception but prior to birth; or
(g) a parent or legal guardian of the child in question who has not waived notice.
(2) The notice of hearing must inform the putative or presumed father or other parent that failure to appear at the hearing constitutes a waiver of the
individual's interest in custody of the child and will result in the court's termination of the individual's rights to the child.
(3) Proof of service of the notice of hearing must be filed with the court. A notarized acknowledgment of service by the party to be served is proof of
personal service. Proof of service is not required if the putative father is present at the hearing. A waiver of notice of the hearing by an individual
entitled to receive notice is sufficient.
(4) If the court finds that the father of the child is a person who did not receive either a timely notice of intent to release pursuant to 42-2-205 or
a notice required pursuant to this section and who has not waived the right to notice of hearing and that person is not present at the hearing, the court
shall adjourn further proceedings until that person is served with a notice of hearing.
42-2-606. Hearing on petition to terminate parental rights. (1) The court shall hold a hearing as soon as practical to determine the identity of and terminate
the parental rights of the parents of the child.
(2) If a putative father has not been named and no one has registered with the putative father registry, the court shall cause inquiry to be made in an
effort to identify any legal father. The inquiry must include whether the mother was married at the time of conception of the child or at any time after
conception and prior to birth.
(3) Based on the evidence received and the court's inquiry, the court shall enter a finding identifying the father or declaring that the identity of the
father could not be determined.
(4) Based on the grounds set forth in 42-2-607 and the evidence received at the hearing, the court shall enter an order concerning the parental rights to
the child.
(5) If the court terminates the parental rights to the child and the department, agency, or prospective adoptive parent has agreed to accept custody of
the child until the child is adopted, the court shall issue an order awarding custody of the child to the petitioner.
42-2-607. Grounds for termination of parental rights. The court may terminate a parent's rights to a child who is the subject of an adoption proceeding
based upon:
(1) the voluntary acts of the parent in:
(a) executing a voluntary relinquishment and consent to adopt;
(b) submitting a notarized denial of paternity executed pursuant to 42-2-421; or
(c) submitting a notarized acknowledgment of paternity and denial of interest in custody of the child executed pursuant to 42-2-422;
(2) a determination under 42-2-608 that the parent is unfit;
(3) a determination under 42-2-609 that the relationship of parent and child does not exist;
(4) a determination under 42-2-610 that a putative father has failed to establish and maintain a substantial relationship with the child; or
(5) a determination that the parent has irrevocably waived parental rights by failing to timely act to protect the rights.
42-2-608. Finding of unfitness. (1) The court may terminate parental rights for purposes of making a child available for adoption on the grounds of
unfitness if:
(a) the court makes a determination that the parent has been judicially deprived of custody of the child on account of abuse or neglect toward the child;
(b) the parent has willfully abandoned the child, as defined in 41-3-102, in Montana or in any other jurisdiction of the United States;
(c) it is proven to the satisfaction of the court that the parent, if able, has not contributed to the support of the child for an aggregate period of 1
year before the filing of a petition for adoption;
(d) it is proven to the satisfaction of the court that the parent is in violation of a court order to support either the child that is the subject of the
adoption proceedings or other children with the same birth mother;
(e) the parent has been found guilty by a court of competent jurisdiction of:
(i) aggravated assault on the adoptee, as provided in 45-5-202;
(ii) sexual assault on a child, as provided in 45-5-502;
(iii) sexual intercourse without consent, as provided in 45-5-503, if the victim was a child;
(iv) incest, as provided in 45-5-507, if the victim was a child;
(v) homicide of a child, as provided in 45-5-102 or 45-5-103;
(vi) sexual abuse of a child, as provided in 45-5-625; or
(vii) ritual abuse of a minor, as provided in 45-5-627;
(f) the child has been maintained by a public or private children's institution, a charitable agency, a licensed child-placing agency, or the department
for a period of 1 year without the parent contributing to the support of the child during that period, if able;
(g) a finding is made for a parent who is given proper notice of hearing:
(i) that the parent has been convicted of a crime of violence or of violating a restraining or protective order; and
(ii) the facts of the crime or violation and the parent's behavior indicate that the parent is unfit to maintain a relationship of parent and child with
the child;
(h) a finding is made for a parent who is given proper notice of hearing and is a respondent to the petition to terminate parental rights and:
(i) by a preponderance of the evidence, it is found that termination is in the best interests of the child; and
(ii) upon clear and convincing evidence, it is found that one of the following grounds exists:
(A) if the child is not in the legal and physical custody of the other parent, that the respondent is not able or willing to promptly assume legal and physical
custody of the child and to pay for the child's support in accordance with the respondent's financial means;
(B) if the child is in the legal and physical custody of the other parent and a stepparent who is the prospective adoptive parent, that the respondent is
not able or willing to promptly establish and maintain contact with the child and to pay for the child's support in accordance with the respondent's financial
means;
(C) placing the child in the respondent's legal and physical custody would pose a risk of substantial harm to the physical or psychological well-being of
the child because the circumstances of the child's conception, the respondent's behavior during the mother's pregnancy or since the child's birth, or the
respondent's behavior with respect to other children indicates that the respondent is unfit to maintain a relationship of parent and child with the child;
or
(D) failure to terminate the relationship of parent and child would be detrimental to the child.
(2) In making a determination under subsection (1)(h)(ii)(D), the court shall consider any relevant factor, including the respondent's efforts to obtain
or maintain legal and physical custody of the child, the role of other persons in thwarting the respondent's efforts to assert parental rights, the respondent's
ability to care for the child, the age of the child, the quality of any previous relationship between the respondent and the child and between the respondent
and any other children, the duration and suitability of the child's present custodial environment, and the effect of a change of physical custody on the
child.
42-2-609. Determination that no parent and child relationship exists. For purposes of making a child available for adoption, the court may terminate
the parental rights of a putative father on the grounds that the parent and child relationship does not exist if:
(1) a judicial determination is made under 40-6-107 that the parent and child relationship does not exist. This includes the termination of the parental
rights of the husband of the mother who is placing the child for adoption or the parental rights of an individual who is a presumed father of the child.
(2) a determination is made that:
(a) an individual has not timely registered with the putative father registry;
(b) an individual has not been adjudicated, in Montana, to be the father of the child for the purpose of child support;
(c) an individual has not been recorded on the child's birth certificate as the child's father;
(d) an individual has not openly lived with the child and the child's mother at the time that the proceeding is initiated or at the time that the child
was placed in the care of an authorized agency and an individual is not representing to the public that the individual is the child's father; and
(e) the child's mother was not married to the person who is the subject of the termination proceedings at the probable time of the child's conception or
at the time that the child was born; or
(3) a putative father appears at the hearing but is unable to establish by a preponderance of the evidence the minimum requirements provided in 42-2-610
for demonstrating the establishment of a substantial relationship with the child.
42-2-610. Putative father -- termination based upon failure to establish substantial relationship. (1) The parental rights of a putative father may
be terminated by the court if the putative father has failed to timely establish and maintain a substantial relationship with the child.
(2) A putative father who is not married to the child's mother but who has openly lived with the child since the child's birth or for a period of 6 months
immediately preceding placement of the child with adoptive parents and has openly claimed to be the father of the child during that period is considered
to have developed a substantial relationship with the child and to have otherwise met the requirements of this section.
(3) In order to meet the minimal showing of having established a substantial relationship with regard to a child who is the subject of an adoption proceeding,
a putative father has the burden of showing that the putative father has:
(a) demonstrated a full commitment to the responsibilities of parenthood by providing financial support for the child in a fair and reasonable sum and in
accordance with the putative father's ability and by either:
(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
(b) manifested 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.
(4) In order to meet the minimal showing of having established a substantial relationship with regard to a child who is the subject of an adoption proceeding
involving a child who is under 6 months of age at the time that the child becomes the subject of adoption proceedings, a putative father has the burden
to show that the putative father has manifested a full commitment to parental responsibilities by:
(a) performing all of the acts described in this subsection (4) prior to the time that the mother executed a relinquishment and consent to adopt;
(b) if the putative father had actual knowledge of the pregnancy, paying a fair and reasonable amount of the expenses incurred in connection with the pregnancy
and the child's birth in accordance with the putative father's means when not prevented from doing so by the person or authorized agency having lawful custody
of the child;
(c) making reasonable and consistent payments, in accordance with the putative father's means, for the support of the child since birth;
(d) visiting regularly with the child; and
(e) manifesting an ability and willingness to assume legal and physical custody of the child if, during this time, the child was not in the physical custody
of the mother.
(5) The subjective intent of a putative father, whether expressed or otherwise, unsupported by evidence of acts specified in this section does not preclude
a determination that the father failed to meet the requirements of this section.
42-2-611. Irrevocable waiver of parental rights. (1) The court may find an irrevocable waiver of parental rights of:
(a) a putative father who was timely served with notice of intent to release if the court is provided with proof of service and proof that the putative
father failed to timely comply with the requirements of the putative father registry;
(b) a parent or putative father who is served with notice of proceedings and fails to appear at the hearing; or
(c) a parent or putative father who is served with notice of proceedings and appears and denies any interest in custody of the child.
(2) The court may terminate parental rights under this section upon a finding of irrevocable waiver of all rights to the child.
42-2-612 through 42-2-615 reserved.
42-2-616. Appearance of parent at hearing -- determination of custody. (1) If a parent appears at the hearing on the petition to terminate parental
rights, objects to the termination of rights, and requests custody of the child, the court shall set deadlines that allow the parties to complete discovery
and shall set a hearing on the determination of the parent's rights to the child.
(2) At the hearing, the court shall consider whether there is a basis for terminating parental rights and whether the best interests of the child will be
served by granting custody to the respondent parent, the department, a licensed child-placing agency, or a prospective adoptive parent in a direct parental
placement adoption.
(3) If the petitioner has established that there are grounds for terminating parental rights and it is in the best interests of the child for termination
to occur, those rights must be terminated.
42-2-617. Effect of order terminating parental rights. (1) An order granting the petition for termination of parental rights:
(a) terminates the parent and child relationship except for an obligation for arrearages of child support;
(b) terminates the jurisdiction of the court over the child in any dissolution or separate maintenance action;
(c) extinguishes any right the parent had to withhold consent to a proposed adoption of the child or to further notice of a proceeding for adoption; and
(d) awards custody of the child to the department, agency, or prospective adoptive parent to whom the relinquishment was given if the department, agency,
or prospective adoptive parent has agreed in writing to accept custody of the child until the adoption is finalized.
(2) A person accepting custody is responsible for the support of the child.
42-2-618. Appeal. An order terminating parental rights is a final order for purposes of appeal.
42-2-619. Expediency. A contested termination of parental rights action must take precedence over other cases and matters in the court or on appeal.
The court shall examine any issues raised in challenging termination of a parent's rights or regarding the validity of any adoption decree and shall render
a decision as soon as possible.
42-2-620. Finality. Subject to the disposition of a timely appeal, upon expiration of 6 months after an order terminating parental rights has been issued,
the order may not be questioned by any person, in any manner, or upon any ground, including fraud, misrepresentation, failure to give any required notice,
or lack of jurisdiction of the parties or the subject matter.
42-3-101. Duty to disclose information -- form -- availability -- filing. (1) Except for an adoption proceeding by a stepparent, in any adoption under
this title, a birth parent, the department, or an agency shall provide a prospective adoptive parent with social and medical histories of the birth families,
including tribal affiliation, if applicable.
(2) In a direct parental placement adoption, the birth family social and medical histories must be completed on a form provided by the department and filed
with the court when the adoption petition is filed.
(3) The department shall make a form available to agencies and court administrators for public distribution.
42-3-102. Retention of disclosures. (1) In a direct parental placement adoption, the disclosures required by 42-3-101 must be filed with the court in
support of the notice of parental placement filed pursuant to 42-4-103 and must be permanently maintained.
(2) In an adoption arranged by the department or an agency, the disclosures required by 42-3-101 must be permanently maintained in the files of the department
or the agency.
42-3-201. Preplacement evaluation -- timing. (1) A child may not be placed for purposes of adoption unless the person with whom a child is proposed
to be placed has had a preplacement evaluation completed to determine fitness and readiness as an adoptive parent.
(2) In a direct parental placement adoption, the placing parent must be provided with a copy of the preplacement evaluation prior to execution of a relinquishment
and consent to adoption of the child.
(3) The required preplacement evaluation must provide all pertinent information pertaining to the topics identified in 42-3-203.
42-3-202. Initiation of preplacement evaluation -- who conducts evaluation -- payment of fees. (1) A prospective adoptive parent who wishes to adopt
a child may initiate the process by:
(a) establishing a client relationship with the department or a licensed child-placing agency; or
(b) requesting a preplacement evaluation from either the department or a licensed child-placing agency.
(2) In a direct parental placement adoption, the preplacement evaluation must be conducted by either a licensed social worker or a licensed child-placing agency.
(3) The prospective adoptive parent and the home of the prospective adoptive parent must be studied and evaluated according to the provisions of this part.
(4) A department or agency from which an individual is seeking to adopt a child may require the individual to be evaluated by its own qualified employee
or independent contractor even if the individual has received a favorable preplacement evaluation from another evaluator.
(5) Fees for the study and report are set by the entity completing them and must be paid for by the prospective adoptive parent.
42-3-203. Information to be reviewed in conducting preplacement evaluation. (1) A preplacement evaluation must include a review of the following information
about the prospective adoptive parent:
(a) a check of criminal conviction data, data on substantiated abuse or neglect of a child under Title 41, chapter 3, and data pertaining to any involvement
in incidents of domestic violence;
(b) medical and social history and current health;
(c) assessment of potential parenting skills;
(d) assessment of ability to provide adequate financial support for a child; and
(e) assessment of the level of knowledge and awareness of adoption issues, including, when appropriate, matters relating to open, interracial, cross-cultural,
and special needs adoptions.
(2) (a) The prospective adoptive parent, the department of justice, and other state, county, and local agencies, after written notice to the subject of
the study, shall give the evaluator completing the adoption study substantiated data pertaining to criminal convictions and any reports concerning domestic
violence and substantiated abuse or neglect of children or vulnerable adults.
(b) The adoption study may also include a check of the youth court records of any person living in the prospective home. Pursuant to 41-5-215 and 41-5-216,
the youth court shall release the requested information to the evaluator completing the adoption study. If applicable, the study must include an evaluation
of the effect of a conviction, adjudication, or finding of substantiated abuse or neglect on the ability to care for a child.
(3) The preplacement evaluation must include at least one in-home visit with the prospective adoptive parent and at least one interview with each family
member.
42-3-204. Contents of preplacement evaluation. (1) The preplacement evaluation report must contain the following information if available:
(a) age and date of birth, nationality, racial or ethnic background, and any religious affiliation;
(b) marital status and family history, including the age and location of any child of the individual and the identity of and relationship to anyone else
living in the individual's household;
(c) physical and mental health and any history of abuse of alcohol or drugs;
(d) educational and employment history and any special skills;
(e) property and income, including outstanding financial obligations as indicated in a current credit report or financial statement furnished by the individual;
(f) any previous request for an evaluation or involvement in an adoptive placement and the outcome of the evaluation or placement;
(g) whether the individual has been charged with or convicted of domestic violence or has been involved in a substantiated charge of child abuse or neglect
or elder abuse or neglect and the disposition of the charges;
(h) whether the individual is subject to a court order restricting the individual's right to custody or visitation with a child;
(i) whether the individual has been convicted of a crime other than a minor traffic violation;
(j) whether the individual has located a parent interested in placing a child with the individual for adoption and, if so, a brief description of the parent
and the child; and
(k) any other fact or circumstance that may be relevant in determining whether the individual is suited to be an adoptive parent, including the quality
of the environment in the individual's home and the functioning of other children in the individual's household.
(2) The report must contain recommendations regarding the suitability of the subject of the study to be an adoptive parent.
(3) A preplacement evaluation is valid for 1 year following its date of completion and must be updated if there is a significant change in circumstances.
(4) Prior to accepting physical custody of a child for purposes of adoption, a prospective adoptive parent must have the preplacement evaluation completed
by the evaluator, and the evaluation must specifically address the appropriateness of placing the specifically identified child or children who will be
the subject of the adoption proceedings with the prospective adoptive parent.
42-3-205. Recommendation. (1) An evaluator shall assess the information required by 42-3-203 to determine if it raises a specific concern that placement
of any child or a particular child in the home of the individual would pose a significant risk of harm to the physical or psychological well-being of the
child.
(2) If an evaluator determines that the information assessed does not raise a specific concern, the evaluator shall find that the individual is suited to
be an adoptive parent. The evaluator may comment about any factor that in the evaluator's opinion makes the individual suited in general or for a particular
child.
(3) If an evaluator determines that the information assessed raises a specific concern, the evaluator, on the basis of the original or any further investigation,
shall find that the individual is or is not suited to be an adoptive parent. The evaluator shall support the finding with a written explanation.
42-3-206. Distribution of evaluation -- retention -- immunity for evaluator. (1) The evaluator shall furnish a copy of the evaluation to a department,
agency, or other person authorized to place a child for adoption and, upon payment by the person evaluated of the cost of the evaluation services, to the
person evaluated.
(2) An evaluator shall retain the original of a completed or incomplete preplacement evaluation and a list of each source for each item of information in
the evaluation. An evaluator who ceases to do business in Montana shall give the evaluator's records to the department for retention.
(3) An evaluator, except a department evaluator, who conducted an evaluation in good faith is not subject to civil liability for anything contained in the
evaluation.
42-3-207. Action by department. If, before a decree of adoption is issued, the department learns from an evaluator or another person that a child has been
placed for adoption with an individual who is the subject of a preplacement evaluation on file with the department containing a finding of unsuitability,
the department shall immediately review the evaluation and make a determination of whether the department has authority pursuant to Title 41, chapter 3,
to intervene.
42-3-208 through 42-3-211 reserved.
42-3-212. Court waiver for relatives. In a direct parental placement adoption, if the court is satisfied that adoption is in the best interests of the child, the court may waive the requirement of a preplacement and postplacement evaluation when a parent or guardian places a child for adoption directly with an extended family member of the child.
42-3-213. Filing of evaluation in adoption proceedings. (1) In a direct parental placement adoption, the preplacement evaluation report must be filed with
the court in support of the petition to terminate parental rights for purposes of adoption.
(2) In an adoption arranged by the department or a licensed child-placing agency, the preplacement evaluation report must be permanently maintained in the
files of the department or the licensed child-placing agency.
42-3-301. Requirement for preplacement evaluation. (1) Before the department or licensed child-placing agency may place a child for purposes of adoption, the prospective adoptive parent and the home of the prospective adoptive parent must be studied and evaluated as provided in part 2 of this chapter.
(2) The department or agency shall prepare a written report containing the results of its evaluation.
42-4-101. Parties to direct parental placement adoption. A parent of a child may directly place the child for adoption with a specifically identified
prospective adoptive parent who:
(1) resides in Montana or in another state that allows direct parental placement;
(2) is known to and has been personally selected by the parent; and
(3) has previously obtained a favorable preplacement evaluation.
42-4-102. Duties of placing parent. (1) A parent who is directly placing a child for adoption shall execute a voluntary relinquishment and consent to
adopt, including:
(a) receiving the counseling required by 42-2-409; and
(b) if the parent is a minor, being advised by legal counsel other than the attorney representing the prospective adoptive parent.
(2) A placing parent shall identify and provide information on the location of any other legal parent or guardian of the child and any other person required
to receive notice under 42-2-605, including:
(a) any current spouse;
(b) any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child; and
(c) any adoptive parent.
(3) A placing parent shall identify and provide information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction
of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.
(4) A parent placing a child for adoption in a direct parental placement adoption shall provide:
(a) the disclosures of medical and social history required pursuant to 42-3-101;
(b) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth; and
(c) a certified copy of any existing court orders pertaining to custody or visitation of the child.
(5) A parent placing a child for adoption in a direct parental placement adoption shall file a notice of parental placement.
(6) A parent placing a child for adoption in a direct parental placement adoption shall file a disclosure of all disbursements made to or for the benefit
of the parent by the prospective adoptive parent or any person acting on behalf of the prospective adoptive parent.
(7) Subject to the limitations set in 42-7-102, counseling expenses, legal fees, and the reasonable costs of preparing reports documenting the required
disclosures of medical and social history and the disclosures documenting disbursements are allowable expenses that can be paid for by the prospective adoptive
parent.
42-4-103. Direct parental placement -- information to be filed. (1) A parent who proposes to place a child for adoption with a prospective adoptive
parent who resides in Montana and who is not the child's stepparent or an extended family member shall file with the court of the county in which the prospective
adoptive parent or the parent making the placement resides the following:
(a) a notice of parental placement containing the following information:
(i) the name and address of the placing parent;
(ii) the name and address of each prospective adoptive parent;
(iii) the name and address or expected date and place of birth of the child;
(iv) the identity and information on the location of any other legal parent or guardian of the child and any other person required to receive notice under
42-2-605, including any current spouse, any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or
birth of the child, and any adoptive parent;
(v) all relevant information pertaining to any Indian heritage of the child that would bring the child within the jurisdiction of the Indian Child Welfare
Act, 25 U.S.C. 1901, et seq.; and
(vi) the name and address of counsel, a guardian ad litem, or other representative, if any, of each of the parties mentioned in subsections (1)(a)(i) through
(1)(a)(iii);
(b) a relinquishment and consent to adoption of the child by the adoptive parent;
(c) the counseling report required by 42-2-409;
(d) the medical and social history disclosures required by 42-3-101;
(e) a report of disbursements identifying all payments made to or to the benefit of the placing parent by the prospective adoptive parent or anyone acting
on the parent's behalf that contains a statement by each person furnishing information in the report attesting to the truthfulness of the information furnished
by that person;
(f) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth;
(g) a certified copy of any existing court orders pertaining to custody or visitation of the child; and
(h) the preplacement evaluation.
(2) The notice of parental placement must be signed by the parent making the placement.
42-4-104 through 42-4-105 reserved.
42-4-106. Duty of prospective adoptive parent to provide preplacement evaluation. (1) Prior to taking custody of a child whom the prospective adoptive parent
intends to adopt, the prospective adoptive parent shall obtain a favorable preplacement evaluation.
(2) A placing parent must be provided with a copy of the preplacement evaluation prior to execution of a relinquishment and consent to adoption of the child.
42-4-107 through 42-4-109 reserved.
42-4-110. Duty to promptly petition. (1) Within 30 days after the filing of a notice of parental placement or the execution of a relinquishment and
consent to the adoption of the child, whichever is later, a prospective adoptive parent shall promptly act to resolve the child's legal status by filing:
(a) a petition for termination of parental rights for purposes of adoption, including a request for custody, that includes:
(i) the relinquishment and consent to adopt executed by any legal parent other than the placing parent who has filed the notice of parental placement;
(ii) a certified copy of any court order terminating the rights and duties of any parent or guardian of the child; and
(iii) any other evidence supporting termination of the legal rights a person has with regard to the child;
(b) a petition to adopt the child who is the subject of the proceedings;
(c) a copy of the preplacement evaluation pertaining to the adoptive parent;
(d) a copy of an agreement with the department or a licensed child-placing agency agreeing to accept supervision over the postplacement evaluation period
and to prepare the postplacement evaluation;
(e) a disclosure of all disbursements made with regard to the adoptive placement to date; and
(f) an affidavit from the department reporting on whether any individual has registered with the putative father registry and claims an interest in the
child.
(2) The prospective adoptive parent shall request that the court promptly notice the matters provided for in subsection (1) for hearing in a timely manner.
42-4-111. Custody order. (1) The court shall consider the petition to adopt and shall make a determination as to whether temporary custody should be
awarded to the petitioner. In making that determination, the court shall consider:
(a) the preplacement evaluation that pertains specifically to placement of the child who is the subject of the adoption petition with the petitioner; and
(b) if any significant change in the petitioner's or child's circumstances has occurred since preparation of the preplacement evaluation.
(2) Upon a determination that it is in the best interests of the child, the court shall enter an order granting temporary custody to the prospective adoptive
parent.
(3) Upon a determination that it is not in the best interests of the child to place custody with the prospective adoptive parent, the court shall deny the
petition to terminate parental rights of the placing parent and shall make any other order with regard to the custody of the child that is necessary to
protect the well-being of the child.
42-4-112. Period for postplacement supervision. (1) In a direct parental placement adoption, the court shall maintain jurisdiction over the placement
during a postplacement evaluation period and issue an order for postplacement supervision and a postplacement evaluation.
(2) The postplacement evaluation period must be supervised and evaluated by a qualified person appointed, contracted with, or employed by:
(a) the department, if the department has accepted supervision of the placement; or
(b) a licensed child-placing agency.
(3) The court shall provide the evaluator with copies of the petition for adoption and the items filed with the petition.
(4) A decree of adoption may not be entered for at least 6 months from the date an order is entered granting temporary custody during the pendency of the
proceedings.
42-4-113. Postplacement evaluation for direct parental placement adoption. (1) An evaluation must be based on a personal interview with the prospective
adoptive parent in the prospective parent's home and an observation of the relationship between the child and the prospective adoptive parent.
(2) An evaluation must be in writing.
(3) At a minimum, the evaluation must include the following information:
(a) assessment of adaptation by the prospective adoptive parent to parenting the child;
(b) assessment of the health and well-being of the child in the prospective adoptive home;
(c) analysis of the level of incorporation by the child into the prospective adoptive parent's home, extended family, and community;
(d) assessment of the level of incorporation of the child's previous history into the prospective adoptive home, such as cultural or ethnic practices, or
contact with former foster parents or biological relatives; and
(e) an account of any change in the prospective adoptive parent's marital status or family history, physical or mental health, home environment, property,
income, or financial obligations since the filing of the preplacement evaluation.
(4) The evaluation must contain a definite recommendation stating the reasons for or against the proposed adoption.
42-4-114. Time and filing of evaluation. (1) Unless the court for good cause allows an earlier or later filing, the evaluator shall file a complete
written evaluation with the court within not less than 90 days and not more than 180 days after receipt of the court's order for an evaluation.
(2) If an evaluation raises a specific concern, as described in 42-3-205, the evaluation must be filed immediately and must explain why the concern poses
a significant risk of harm to the physical or psychological well-being of the child.
(3) An evaluator shall give the prospective adoptive parent a copy of the evaluation when it is filed with the court and shall permanently retain a copy
of the evaluation and a list of every source for each item of information in the evaluation. If the evaluator ceases to conduct business in Montana, all
evaluations in the evaluator's possession must be forwarded to the department for permanent retention.
42-4-115. Motion to enter adoption decree. (1) The prospective adoptive parent may file a motion for entry of an adoption decree no sooner than 6 months
after the court has granted temporary custody to the prospective adoptive parent.
(2) The motion must be supported by the following documents:
(a) the postplacement evaluation prepared pursuant to 42-4-113; and
(b) an updated list of all disbursements made in connection with the adoption proceeding.
(3) A notice of hearing is not required for any party whose parental rights have been terminated in prior proceedings.
(4) The court shall consider the petition and shall grant or deny the petition pursuant to the provisions of 42-4-405 and 42-5-101 through 42-5-109.
(5) If the petition to adopt is denied, the court shall provide notice to the placing parent that the petition has been denied and shall take appropriate
action for placement of the child pursuant to 42-5-106.
(6) Finality of the decree or the order denying the decree and the time for appeal are determined pursuant to 42-5-203.
42-4-116. Records. All records filed with the court in a direct parental placement adoption must be permanently maintained by the court.
42-4-201. Factors to be considered -- best interests of child. (1) All relevant factors must be considered in determining the best interests of the
child in an adoption proceeding. Factors relevant to the determination of a prospective adoptive parent's parenting ability, the future security for a child,
and familial stability must be considered. In determining the best interests of the child, the following factors with regard to a prospective adoptive parent
may be considered:
(a) age, as it relates to health, earning capacity, provisions for the support of a child, or other relevant circumstances;
(b) marital status, as it relates to the ability to serve as a parent in particularized circumstances; and
(c) religion, as it relates to the ability to provide the child with an opportunity for religious or spiritual and ethical development and as it relates
to the express preference of a birth parent or a child to be placed with an adoptive parent of a particular religious faith or denomination.
(2) For purposes of ensuring that the best interests of the child are met, the department or a licensed child-placing agency is authorized to gather and
use, in an appropriate, nonarbitrary manner, information concerning the age, marital status, and religious beliefs of a prospective adoptive parent. The
authority granted by this subsection includes the authority to receive and to consider, consistent with the best interests of the child, the preferences
of birth parents relating to the age, marital status, or religious beliefs of an adoptive parent.
(3) Consideration of religious factors by a licensed child-placing agency that is affiliated with a particular religious faith is not arbitrary consideration
of religion within the meaning of this section.
42-4-202. Parties to department or agency placement. A parent of a child may relinquish the child for adoption to the department or a licensed child-placing
agency. The department or agency shall agree in writing to accept the relinquishment of a placing parent as provided in 42-2-402 before the relinquishment
is valid.
42-4-203. Duties of placing parent. (1) A parent who is placing a child for adoption shall comply with the provisions for executing a voluntary relinquishment
and consent to adopt.
(2) A parent placing a child for adoption shall identify and provide information on the location of:
(a) any other legal parent or guardian of the child and any other person required to receive notice under 42-2-605, including any current spouse; and
(b) any spouse who is the other birth parent and to whom the parent was married at the probable time of conception or birth of the child.
(3) A parent placing a child for adoption shall identify and provide information pertaining to any Indian heritage of the child that would bring the child
within the jurisdiction of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.
(4) A parent placing a child for adoption shall provide:
(a) the disclosures of medical and social history;
(b) a certified copy of the child's birth certificate or other document certifying the place and date of the child's birth; and
(c) a certified copy of any existing court orders pertaining to custody or visitation of the child.
42-4-204. Counseling requirements. To the extent required by this title and the department's or agency's standards, the department or agency shall provide
counseling to the parties involved in the adoption.
42-4-205. Waiting period following placement of child. (1) Once the department or agency has received custody of the child and placed the child for
adoption, the department or agency shall supervise and evaluate the placement during a 6-month postplacement evaluation period.
(2) The department or agency may recommend in the postplacement evaluation filed with the petition for adoption that the court issue a decree of adoption
sooner than the 6-month postplacement evaluation period if:
(a) (i) a period of at least 6 months has elapsed since the department or agency placed the child in the prospective adoptive home; and
(ii) the department or agency has completed a postplacement evaluation during that period; or
(b) (i) a postplacement evaluation has been completed and filed with the court; and
(ii) there are detailed extenuating circumstances supporting a waiver of the 6-month postplacement evaluation period.
(3) The department or an agency may recommend the waiver of the 6-month postplacement evaluation period and the postplacement evaluation if the adoptee
has been in the petitioner's home as a foster child for at least 1 year.
42-4-206. Petition for adoption filed by prospective adoptive parent. After the child has been placed by the department or agency with the prospective adoptive
parent, the parent shall file a petition for adoption.
42-4-207 through 42-4-208 reserved.
42-4-209. Postplacement department or agency evaluation. (1) The department or agency shall complete a written postplacement evaluation. The postplacement
evaluation must be conducted according to the department's or agency's standards for placement of a child and at a minimum must include a personal interview
with the prospective adoptive parent in that person's home and observation of the relationship between the child and the prospective adoptive parent.
(2) Upon the filing of a petition for adoption by the prospective adoptive parent, the department or agency shall file the postplacement evaluation.
(3) The evaluation must include the following information:
(a) whether the child is legally free for adoption;
(b) whether the proposed home is suitable for the child;
(c) a statement that the medical and social histories of the birth parents and child have been provided to the prospective adoptive parent;
(d) an assessment of adaptation by the prospective adoptive parent to parenting the child;
(e) a statement that the 6-month postplacement evaluation period has been complied with or should be waived;
(f) any other circumstances and conditions that may have a bearing on the adoption and of which the court should have knowledge;
(g) whether the agency waives notice of the proceeding;
(h) a statement that any applicable provision of law governing an interstate or intercountry placement of the child has been complied with; and
(i) a statement of compliance with any applicable provisions of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq.
(4) The evaluation must contain a definite recommendation stating the reasons for or against the proposed adoption.
42-4-210. Consent to adoption. (1) Upon the filing of the petition for adoption by the prospective adoptive parent, the department or agency that has
custody of the child shall file its consent to adoption.
(2) Except as provided in subsection (3), the withdrawal of a consent for an adoption filed by the department or an agency in connection with that petition
for adoption is not permitted.
(3) Upon a motion to withdraw consent, notice and opportunity to be heard must be given to the petitioner and to the person seeking to withdraw consent.
The court may, if it finds that the best interests of the child will be furthered, issue a written order permitting the withdrawal of the consent.
(4) The entry of a decree of adoption renders a consent irrevocable.
42-4-301. Relinquishment to stepparent. (1) A parent may relinquish parental rights for the purposes of adoption of a child by the child's stepparent
or a member of the child's extended family. The relinquishment must be executed in accordance with 42-2-401 through 42-2-405 and 42-2-408 through 42-2-413.
The relinquishment may be executed at any time after the child is 72 hours old.
(2) The stepparent or extended family member shall accept the relinquishment in writing.
42-4-302. Standing to adopt stepchild. (1) A stepparent has standing to file a petition for adoption of a minor child of the stepparent's spouse if:
(a) the spouse has legal and physical custody of the child and the child has been in the physical custody of the spouse and the stepparent during the 60
days preceding the filing of a petition for adoption;
(b) the spouse is deceased or mentally incompetent but, before dying or being judicially declared mentally incompetent, had legal and physical custody of
the child, and the child has resided primarily with the stepparent during the 12 months preceding the filing of the petition; or
(c) the department or an agency placed the child with the stepparent.
(2) For good cause shown, a court may allow an individual who is not the stepparent but who has the consent of the custodial parent of a child to file a
petition for adoption. The petition must be treated as if the petitioner were a stepparent.
(3) A petition for adoption by a stepparent may be joined with a petition for termination of parental rights.
42-4-303. Consent to adoption. (1) Upon the filing of the petition for adoption by the stepparent, the child's custodial parent shall file consent to
adoption executed pursuant to 42-4-304.
(2) If the child has attained 12 years of age, the child shall consent to the adoption.
42-4-304. Consent to adoption -- stepparent's spouse. (1) A consent to adoption executed by a parent who is the stepparent's spouse must be signed in
the presence of an individual authorized to take acknowledgments.
(2) A consent must be in writing and must state that:
(a) the parent executing the consent has legal and physical custody of the child and voluntarily and unequivocally consents to the adoption of the child
by the stepparent;
(b) the adoption will not terminate the parental relationship between the parent executing the consent and the child; and
(c) the parent executing the consent understands and agrees that:
(i) the adoption will terminate the relationship of parent and child between the child's other parent and the child and will terminate any existing court
order for custody, visitation, or communication with the child;
(ii) the child and any descendant of the child will retain rights of inheritance from or through the child's other parent; and
(iii) a court order for visitation or communication with the child by an individual related to the child through the parent executing the relinquishment
or an agreement or order concerning another individual that is approved by the court survives the decree of adoption, but that failure to comply with the
terms of the order or agreement is not a ground for revoking or setting aside the consent or the adoption.
42-4-305. Repealed. Sec. 20, Ch. 257, L. 1999.
42-4-306 through 42-4-308 reserved.
42-4-309. Preplacement and postplacement evaluation period -- waiver. In a stepparent adoption, if the court is satisfied that the adoption is in the
best interests of the child, the court may waive the requirement of a preplacement evaluation and the 6-month postplacement evaluation and report and grant
a decree of adoption.
42-4-310. Petition for adoption -- notice -- hearing. A stepparent who desires to adopt a stepchild shall obtain an order of termination of parental
rights of the child's noncustodial parent prior to or contemporaneously with the petition to adopt. Any necessary consents must be filed with the petition
for adoption. Notice of the hearing on the petition must be given, and the stepparent shall attend the hearing conducted by the court.
42-4-311. Legal consequences of adoption of stepchild. (1) Except as provided in subsections (2) and (3), the legal consequences of an adoption of a
stepchild by a stepparent are the same as the consequences under 42-5-202.
(2) An adoption by a stepparent does not affect:
(a) the relationship between the adoptee and the adoptee's parent who is the adoptive stepparent's spouse or deceased spouse;
(b) an existing court order for visitation or communication with a child by an individual related to the adoptee through either parent; or
(c) the right of the adoptee or a descendant of the adoptee to inheritance or intestate succession through or from the adoptee's former parent.
(3) Failure to comply with an agreement or order is not a ground for challenging the validity of an adoption by a stepparent.
42-4-312. Arrearages of child support. A termination of a parent's rights and responsibilities toward a child does not cancel any responsibility to
pay arrearages of child support unless the party to whom the arrearages are owed agrees in writing to waive payment.
42-4-401. Adoption of adult. A person who has attained the age of legal majority may be adopted without the consent of the person's parents.
42-4-402. Who may adopt adult or emancipated minor. (1) An adult may adopt another adult or an emancipated minor pursuant to this section. However,
an adult may not adopt the adult's spouse. An adoption of an incompetent individual of any age must comply with all requirements set by law for the adoption
of a child.
(2) An individual who has adopted an adult or emancipated minor may not adopt another adult or emancipated minor within 1 year after the adoption unless
the prospective adoptee is a sibling of the adoptee.
42-4-403. Consent to adoption. (1) Consent to the adoption of an adult or emancipated minor is required only of:
(a) the adoptee;
(b) the prospective adoptive parent; and
(c) the spouse of the prospective adoptive parent unless:
(i) the spouse and the prospective adoptive parent are legally separated; or
(ii) the court finds that the spouse is not capable of giving consent or is withholding consent contrary to the best interests of the adoptee and the prospective
adoptive parent.
(2) The consent of the adoptee and the prospective adoptive parent must:
(a) be in writing and be signed in the presence of the court or an individual authorized to take acknowledgments;
(b) state that the parties agree to assume toward each other the legal relationship of parent and child and to have all of the rights and be subject to
all of the duties of that relationship; and
(c) state that the parties understand the consequences that the adoption may have for any right of inheritance, property, or support.
(3) The consent of the spouse of the prospective adoptive parent:
(a) must be in writing and be signed in the presence of the court or an individual authorized to take acknowledgments;
(b) must state that the spouse:
(i) consents to the proposed adoption; and
(ii) understands the consequences that the adoption may have for any right of inheritance, property, or support that the spouse has; and
(c) may contain a waiver of notice of any proceeding for adoption.
42-4-404. Jurisdiction and venue. (1) The court has jurisdiction over a proceeding for the adoption of an adult or emancipated minor if the petitioner
has lived in Montana for at least 90 days immediately preceding the filing of a petition for adoption.
(2) A petition for adoption must be filed in the court in the county in which a petitioner lives.
42-4-405. Procedure. Except as otherwise provided in this part, the procedure and law for adoption of a child set forth in this title is applicable
in proceedings for the adoption of an adult. The provisions concerning the counseling requirement, preplacement evaluation, postplacement supervision period,
and postplacement evaluation are not applicable to the adoption of an adult.
42-5-101. Petition for adoption. (1) A petition for adoption must be notarized by the petitioners and must specify:
(a) the full names, ages, and place and duration of residence of the petitioners;
(b) the current marital status of petitioners and, if married, the place and date of the marriage;
(c) the circumstances under which the petitioners obtained physical custody of the child and the name of the individual or agency that placed the child;
(d) the date and place of birth of the child, if known;
(e) the name used for the child in the proceeding and, if a change in name is desired, the full name by which the child is to be known;
(f) that it is the desire of the petitioners that the relationship of parent and child be established between the petitioners and the child and to have
all the rights and be subject to all the duties of that relationship;
(g) a full description and statement of value of all property owned or possessed by the child;
(h) the facts, if any, that excuse consent on the part of a person whose consent is required for the adoption;
(i) that any applicable law governing interstate or intercountry placement was complied with;
(j) that, if applicable, the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., was complied with;
(k) whether a previous petition has been filed by the petitioners to adopt the child at issue or any other child in any court and the disposition of the
petitions; and
(l) the name and address, if known, of any person who is entitled to receive notice of the petition for adoption.
(2) There must be attached to or accompanying the petition:
(a) any written consent required by 42-2-301;
(b) a certified copy of any court order terminating the rights of the child's parents;
(c) a certified copy of any existing court order in any pending proceeding concerning custody of or visitation with the child;
(d) a copy of any agreement with a public agency to provide a subsidy for the benefit of the child with a special need;
(e) the postplacement evaluation prepared pursuant to 42-4-113 or 42-4-209;
(f) a disclosure of any disbursements made in connection with the adoption proceeding.
(3) One copy of the petition must be retained by the court. A copy must be sent to:
(a) the department or to the agency participating in the adoption proceeding;
(b) the parent placing the child for adoption in a direct parental placement adoption; or
(c) the child's guardian ad litem if the child has one.
(4) Proceedings initiated under this part are subject to the Montana Rules of Civil Procedure except as modified by this part.
42-5-102. Time for action on petition for adoption -- waiver. Not less than 6 months from the date the child has been placed with the prospective adoptive
parent, the prospective adoptive parent may apply to the court for a decree of adoption. If the best interests of the adoptee are served, then pursuant
to 42-4-205 and 42-4-309, the court may waive the 6-month postplacement evaluation period and summarily consider an adoption petition.
42-5-103. Notice of hearing. (1) Upon the filing of a petition for adoption, notice of hearing must be served on:
(a) a person whose consent to adoption is required under 42-2-301;
(b) the department or agency whose consent to adoption is required;
(c) the spouse of the petitioner if the spouse has not joined in the petition;
(d) a person who has revoked a consent or relinquishment or is attempting to have a consent or relinquishment set aside;
(e) the child's guardian ad litem if the child has one; and
(f) any other person named by the court to receive notice.
(2) The notice must direct the person to appear in court at the time specified and to show cause why the petition should not be granted.
(3) A notice of hearing is not required to be served on any party:
(a) whose parental rights have been terminated in prior proceedings;
(b) who waives notice in a relinquishment, consent, or other document signed by the party;
(c) who has consented in writing to an adoption; or
(d) whose consent to adoption is not required under 42-2-302.
42-5-104. Content of notice. The notice required by 42-5-103 must contain:
(1) the caption of the petition;
(2) the address and telephone number of the court in which the petition is pending;
(3) a concise summary of the relief requested in the petition;
(4) the name, mailing address, and telephone number of the petitioner or the petitioner's attorney; and
(5) a statement of the method of responding to the notice and the consequences of failure to respond.
42-5-105. Hearing on petition for adoption. (1) The petitioners and the child shall appear at the hearing unless the presence of the child is waived
by the court.
(2) The court shall examine the petition, the documents accompanying the petition, and the petitioners and shall receive evidence in support of the petition.
42-5-106. Granting petition for adoption -- denial of petition. (1) The court shall issue a decree of adoption awarding custody of the child to the
petitioners based on the evidence received if it determines that:
(a) the child has been in the physical custody of the petitioners for at least 6 months, unless the court for good cause shown waives this requirement pursuant
to 42-4-205 or 42-4-309;
(b) notice of hearing on the petition for adoption was properly served or dispensed with;
(c) every necessary consent, relinquishment, waiver, disclaimer, or judicial order terminating parental rights has been obtained and filed with the court;
(d) any evaluation required by this title has been filed with and considered by the court; and
(e) the adoption is in the best interests of the child.
(2) If the petition for adoption is denied, the court shall dismiss the petition and enter an appropriate order as to the future custody of the child according
to the best interests of the child.
42-5-107. Best interests of child. (1) In determining whether to grant a petition to adopt, the court shall consider all relevant factors in determining
the best interests of the child. The court shall consider factors relevant to the determination of a prospective adoptive parent's parenting ability, the
future security for a child, and familial stability.
(2) In a contested adoption proceeding involving a child, the court shall consider the factors set out in subsection (1) and shall also consider:
(a) the nature and length of any relationship already established between a child and any person seeking to adopt the child;
(b) the nature of any family relationship between the child and any person seeking to adopt the child and whether that person has established a positive
emotional relationship with the child;
(c) the harm that could result to the child from a change in placement;
(d) whether any person seeking to adopt the child has adopted a sibling or half-sibling of the child;
(e) which, if any, of the persons seeking to adopt the child were selected by the placing parent or the department or agency whose consent to the adoption
is required.
(3) In an Indian child placement, the court shall determine if the requirements of the Indian Child Welfare Act, 25 U.S.C. 1901, et seq., have been met.
42-5-108. Removal of child from state. Before a decree of adoption is issued, a petitioner may not remove the child from the state for more than 30
consecutive days without the permission of:
(1) the court if the child was placed directly for adoption; or
(2) the department or the agency that placed the child for adoption.
42-5-109. Decree of adoption. A decree of adoption must state:
(1) the original name of the child;
(2) the name of the petitioner for adoption;
(3) whether the petitioner is married or unmarried;
(4) whether the petitioner is a stepparent of the child;
(5) the name by which the child is to be known;
(6) for a child born in Montana, a direction to the vital statistics bureau to issue a new birth certificate unless the adoptee is 12 years of age or older
and requests that a new certificate not be issued;
(7) the child's date and place of birth, if known;
(8) the effect of the decree of adoption as stated in 42-5-202;
(9) that the adoption is in the best interests of the child; and
(10) if known, whether either birth parent objects to the release of the original birth certificate information upon the adoptee reaching 18 years of age.
42-5-201. Communication of decree to department. (1) Within 30 days after a decree of adoption becomes final, the clerk of court shall send a report of
the adoption to the department.
(2) If petitioners have requested it, the court shall order the vital statistics bureau to issue a new birth certificate to the child.
42-5-202. Effect of decree. (1) After the decree of adoption is entered:
(a) the relationship of parent and child and all the rights, duties, and other legal consequences of the relation of parent and child exist between the
adoptee and the adoptive parent and the kindred of the adoptive parent;
(b) the former parents and the kindred of the former parents of the adoptee, unless they are the adoptive parents or the spouse of an adoptive parent, are
relieved of all parental responsibilities for the adoptee and have no rights over the adoptee except for a former parent's duty to pay arrearages for child
support.
(2) A decree of adoption must include notice to the vital statistics bureau if it is known that either birth parent objects to release of the information
on the original birth certificate upon the adoptee reaching 18 years of age.
(3) The relationship of parent and child for the purposes of intestate succession is governed by Title 72.
42-5-203. Finality of decree -- expediency. (1) For purposes of appeal, the decree of adoption is a final order when it is issued.
(2) A person may appeal from the order in the manner and form provided for appeals from a judgment in civil actions.
(3) An appeal from a decree of adoption must be heard expeditiously pursuant to the provisions of 42-2-618.
42-5-204. Rights of adoptee. A decree of adoption does not affect any right or benefit vested in the adoptee before the decree became final.
42-5-205. Foreign adoption decrees. When the relationship of parent and child has been created by a decree of adoption of a court of any other state
or country, the rights and obligations of the parties as to matters within the jurisdiction of this state must be determined pursuant to this title.
42-5-301. Visitation and communication agreements. (1) Except as otherwise provided in this title, a decree of adoption terminates any existing order
or written or oral agreement for contact or communication between the adoptee and the birth parents or family.
(2) Any express written agreement entered into between the placing parent and the prospective adoptive parent after the execution of a relinquishment and
consent to adoption is independent of the adoption proceedings, and any relinquishment and consent to adopt remains valid whether or not the agreement for
contact or communication is later performed. Failure to perform an agreement is not grounds for setting aside an adoption decree.
(3) A court may order that an agreement for contact or communication entered into under this section may not be enforced upon a finding that:
(a) enforcement is detrimental to the child;
(b) enforcement undermines the adoptive parent's parental authority; or
(c) due to a change in circumstances, compliance with the agreement would be unduly burdensome to one or more of the parties.
42-6-101. Confidentiality of records and proceedings. (1) Unless the court orders otherwise, all hearings held in proceedings under this title are confidential
and must be held in closed court without admittance of any person other than interested parties and their counsel.
(2) All papers and records pertaining to the adoption must be kept as a permanent record of the court and must be withheld from inspection. A person may
not have access to the records, except:
(a) for good cause shown on order of the judge of the court in which the decree of adoption was entered;
(b) as provided in this part;
(c) as provided in 50-15-121 and 50-15-122; or
(d) the department's child support enforcement division providing services under 42 U.S.C. 651, et seq.
(3) All files and records pertaining to adoption proceedings retained by the department, a licensed child-placing agency, a lawyer, or any authorized agency
are confidential and must be withheld from inspection, except as provided in 50-15-121, 50-15-122, and this part.
42-6-102. Disclosure of records -- nonidentifying information -- consensual release. (1) The department or authorized person or agency may disclose:
(a) nonidentifying information to an adoptee, an adoptive or birth parent, or an extended family member of an adoptee or birth parent;
(b) identifying information to a court-appointed confidential intermediary upon order of the court or as provided in 50-15-121 and 50-15-122;
(c) identifying information limited to the specific information required to assist an adoptee to become enrolled in or a member of an Indian tribe; and
(d) identifying information to authorized personnel during a federal child and family services review.
(2) Information may be disclosed to any person who consents in writing to the release of confidential information to other interested persons who have also
consented. Identifying information pertaining to an adoption involving an adoptee who is still a child may not be disclosed based upon a consensual exchange
of information unless the adoptee's adoptive parent consents in writing.
42-6-103. Petition for appointment of confidential intermediary. (1) An adult adoptee, an adoptive or birth parent, or an adult extended family member
of the adoptee or birth parent may petition the court for disclosure of identifying information regarding the adoptee, a birth child, a birth parent, or
an extended family member.
(2) A petition for disclosure must contain:
(a) as much of the following information as is known by the petitioner:
(i) the name, address, and identification of the petitioner;
(ii) the date of the adoptee's birth;
(iii) the county and state where the adoption occurred;
(iv) the date of the adoption; and
(v) any other information known to the petitioner concerning the birth parents, the adoptive parent, and the adoptee that could assist in locating the person
being sought;
(b) written documentation from a certified confidential intermediary agreeing to conduct the search; and
(c) if the petitioner is not the adoptee or birth parent, the reason the petitioner is requesting the appointment of a confidential intermediary.
42-6-104. Appointment of confidential intermediary -- duties -- payment. (1) After a petition for disclosure has been filed under 42-6-103, the court
shall appoint a confidential intermediary who shall:
(a) conduct a confidential search for the person sought as requested in the petition for disclosure;
(b) refrain from disclosing directly or indirectly any identifying information to the petitioner, unless ordered to do so by the court; and
(c) make a written report of the results of the search to the court not later than 6 months after appointment.
(2) Upon appointment, a confidential intermediary is entitled to be paid a reasonable fee plus actual expenses incurred in conducting the search. The fee
and expenses must be paid by the petitioner.
(3) A confidential intermediary may inspect otherwise confidential records of the court, the department, or an authorized agency for use in the search.
The confidential intermediary may not disclose identifying information from the records or any results of a search unless authorized by the court or unless
the parties have executed written consent to the confidential intermediary. Nonidentifying information from any source may be disclosed without further
order from the court.
(4) If a confidential intermediary locates the person being sought, a confidential inquiry must be made as to whether the located person consents to having
that person's present identity disclosed to the petitioner. The court may request that the confidential intermediary assist in arranging contact between
the petitioner and the located person.
(5) If a confidential intermediary locates the person being sought and the located person does not consent to having that person's identity disclosed, identifying
information regarding that person may be disclosed only upon order of the court for good cause shown.
(6) If the person being sought is found to be deceased, the court may order disclosure of identifying information regarding the deceased to the petitioner.
42-6-105. Disclosure authorized in course of employment. This title does not preclude an employee or agent of a court, department, or agency from:
(1) inspecting permanent, confidential, or sealed records for the purpose of discharging any obligation under this title;
(2) disclosing the name of the court in which a proceeding for adoption occurred or the name of an agency that placed an adoptee to an individual described
in 42-6-103(1) who can verify the individual's identity; or
(3) disclosing nonidentifying information contained in confidential or sealed records in accordance with any other applicable state or federal law.
42-6-106 through 42-6-108 reserved.
42-6-109. Release of original birth certificate -- certificate of adoption. (1) For a person adopted on or before July 1, 1967, in addition to any copy
of an adoptee's original birth certificate authorized for release by a court order issued pursuant to 50-15-121 or 50-15-122, the department shall furnish
a copy of the original birth certificate upon the written request of an adoptee.
(2) For a person adopted between July 1, 1967, and September 30, 1997, in addition to any copy of an adoptee's original birth certificate authorized for
release by a court order issued pursuant to 50-15-121 or 50-15-122, the department shall furnish a copy of the original birth certificate upon a court order.
(3) For a person adopted on or after October 1, 1997, in addition to any copy of an adoptee's original birth certificate authorized for release by a court
order issued pursuant to 50-15-121 or 50-15-122, the department shall furnish a copy of the original birth certificate upon:
(a) the written request of an adoptee who has attained 18 years of age unless the birth parent has requested in writing that the original birth certificate
not be automatically released; or
(b) a court order.
(4) For a person adopted on or after October 1, 1997, and subject to subsection (5), upon the request of an adoptive parent or an adoptee who has attained
18 years of age, the department shall issue a certificate of adoption that states the date and place of adoption, the date of birth of the adoptee, the
name of each adoptive parent, and the name of the adoptee as provided in the decree.
(5) A birth parent may request in writing to the vital statistics bureau that the birth certificate for an adoptee not be released without a court order.
(6) The department may release a copy of the adoptee's original birth certificate if release of this document is required to assist an adoptee to become enrolled in or a member of an Indian tribe.
42-7-101. Fees related to placement for adoption by parent. (1) Reasonable adoption fees may be paid by the adoptive parent for the actual cost of services.
The cost of services must relate to:
(a) a petition for adoption;
(b) placement of a child;
(c) medical care or services;
(d) prenatal care;
(e) foster care;
(f) a preplacement evaluation;
(g) counseling related to providing information necessary to make an informed decision to voluntarily relinquish a child;
(h) travel or temporary living costs for the birth mother;
(i) legal fees incurred for services on behalf of the placing parent;
(j) the reasonable costs incurred by a placing parent in a direct parental placement adoption to document the disclosures of medical and social history
required by 42-3-101; and
(k) other reasonable costs related to adoption that do not include education, vehicles, salary or wages, vacations, or permanent housing for the birth parent.
(2) A birth parent or a provider of a service listed in subsection (1) may receive or accept a payment authorized by subsection (1). The payment may not
be made contingent on the placement of a child for adoption or upon relinquishment of and consent to adoption of the child. If the adoption is not completed,
a person who is authorized by subsection (1) to make a specific payment is not liable for that payment unless the person has agreed in a signed writing
with a birth parent or a provider of a service to make the payment regardless of the outcome of the proceeding for adoption.
42-7-102. Limitations on payment of counseling and legal fees. (1) A prospective adoptive parent may pay counseling expenses for a maximum of 10 hours
of counseling.
(2) A prospective adoptive parent may pay for legal costs entailed for providing legal counsel for one birth parent unless the birth parents elect joint
representation. The right of a relinquishing parent to legal counsel paid by the prospective adoptive parent continues only until the relinquishment becomes
irrevocable. An attorney may not represent both a birth parent and a prospective adoptive parent.
42-7-103 through 42-7-104 reserved.
42-7-105. Prohibited activities -- violations -- penalties. (1) A person, other than the department or a licensed child-placing agency, may not:
(a) advertise in any public medium that the person:
(i) knows of a child who is available for adoption; or
(ii) is willing to accept a child for adoption or knows of prospective adoptive parents for a child; or
(b) engage in placement activities as defined in 42-8-101.
(2) An individual other than an extended family member or stepparent of a child may not obtain legal or physical custody of a child for purposes of adoption
unless the individual has a favorable preplacement evaluation or a court-ordered waiver of the evaluation.
(3) A person who, as a condition for placement, relinquishment, or consent to the adoption of a child, knowingly offers, gives, agrees to give, solicits,
accepts, or agrees to accept from another person, either directly or indirectly, anything other than the fees allowed under 42-7-101 commits the offense
of paying or charging excessive adoption process fees.
(4) It is illegal to require repayment or reimbursement of anything provided to a birth parent under 42-7-101. All payments by the adoptive parent made
on behalf of a birth parent pursuant to this section are considered a gift to the birth parent.
(5) A person convicted of the offense of paying or charging excessive adoption process fees, attempting to recover expenses incurred from an adoption process,
or otherwise violating this title may be fined an amount not to exceed $10,000 in an action brought by the appropriate city or county attorney. The court
may also enjoin from further violations any person who violates this title.
42-7-106. Action by department. The department may review and investigate compliance with this title and may maintain an action in court to compel compliance.
42-8-101. to 42-8-108. RENUMBERED
42-9-00. This chapter does not exit in the law.
42-10-101. Short title. Sections 42-10-101 through 42-10-109 may be cited as "The Subsidized Adoption Act of 1977".
42-10-102. Purpose. The purpose of this part is to encourage and promote the adoption of children with special needs by providing information and assistance
in completing the adoption process and financial assistance when necessary to ensure the health and welfare of the child with special needs.
42-10-103. Definitions. As used in this part, the following definitions apply:
(1) "Child with special needs" means a child who is a dependent of a public or voluntary licensed child placement agency and meets at least one
of the following criteria as a child who is:
(a) diagnosed as having a physical, mental, or emotional disability;
(b) recognized to be at high risk of developing a physical, mental, or emotional disability;
(c) a member of a minority group;
(d) six years of age or older; or
(e) a member of a sibling group to be placed together for adoption.
(2) "Department" means the department of public health and human services provided for in 2-15-2201.
42-10-104. Power and duties of department. (1) The department shall establish, administer, and regulate a continuing program of subsidized adoption.
(2) The department shall keep such records as are necessary to evaluate the program in terms of the number of children adopted under the program, the cost
of the program, and any other pertinent information.
(3) The department may adopt rules necessary for the proper administration of this part.
42-10-105. Records to be confidential. All records regarding subsidized adoption are confidential and may be disclosed only in accordance with the provisions
of 42-6-101.
42-10-106. Certification as child with special needs. (1) Whenever the conditions of 42-10-103 are found to exist and the foster parents seek to adopt
the child, the child must be certified as a child with special needs.
(2) In all other cases in which the conditions of 42-10-103 are found to exist and after reasonable efforts have been made and without subsidy no appropriate
adoptive family has been found for a child, the department shall certify the child as a child with special needs.
(3) If the child is the dependent of a licensed child-placing agency, that agency shall present to the department evidence of inability to place the child
for adoption due to any of the conditions specified in 42-10-103. The agency shall present evidence that reasonable efforts have been made to place the
child without subsidy. Upon such a showing, the department shall certify the child as a child with special needs.
42-10-107. Eligibility for subsidy. Any family that applies for an adoption subsidy, is approved by the department or a licensed child placement agency
as a suitable adoptive family, and adopts a child with special needs is eligible for subsidy regardless of the domicile or residence of the family at the
time of application for adoption, placement, legal decree of adoption, or thereafter.
42-10-108. Subsidy agreement. (1) When parents are approved for adoption of a child certified as a child with special needs and before the final decree
of adoption is issued, there must be a written agreement between the family and the department. The terms of the adoption subsidy agreement may commence
with the adoption placement or at an appropriate time after the adoption decree.
(2) The subsidy agreement must continue in accordance with its terms until the child reaches majority or, in the case of a child with a mental or physical
handicap, until 21 years of age. Termination or modification of the subsidy agreement may be requested by the adoptive parents or the department at any
time.
42-10-109. Amount, duration, and scope of subsidy. The amount, duration, and scope of the subsidy may vary with the special needs of the child as well
as the availability of other resources to meet these needs. The subsidy may be for services only or for the money payments, but in no case may the amount
of the subsidy exceed:
(1) that which would be allowable for maintenance costs such as payments to cover the cost of food, clothing, shelter, daily supervision, school supplies,
and a child's personal incidentals, not to exceed the foster care rate established by the department for a child under foster care; or
(2) in the case of a state medical subsidy, the reasonable fee for the services rendered, not to exceed the amount of $2,600 annually.
42-10-110. Repealed. Sec. 8, Ch. 21, L. 1999.
42-10-111 through 42-10-120 reserved.
42-10-121. Definitions. As used in 42-10-121 through 42-10-128, the following definitions apply:
(1) "Adoption assistance agreement" means an agreement for adoption assistance between adoptive parents and the state child welfare agency of
the state that undertakes to provide the adoption assistance, including a subsidy agreement as provided in 42-10-108.
(2) "Adoption assistance state" means the signatory state to an adoption assistance agreement in a particular case.
(3) "Residence state" means the state of which the child is a resident by virtue of the residence of the adoptive parents.
(4) "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Commonwealth
of the Northern Mariana Islands, or a territory or possession of or administered by the United States.
42-10-122. Authorization. The department of public health and human services is authorized to develop, participate in the development of, negotiate,
and enter into one or more interstate compacts on behalf of this state with other states for:
(1) the protection of children on behalf of whom adoption assistance is being provided; and
(2) the provision of procedures for interstate children's adoption assistance payments, including medical payments.
42-10-123. Federal participation. Consistent with federal law, the department of public health and human services, in connection with the administration
of services provided and compacts entered into under authority of 42-10-121 through 42-10-128, shall apply for and administer all federal aid for adoption
assistance and medical assistance costs in any state plan made pursuant to the Adoption Assistance and Child Welfare Act of 1980 (Public Law 96-272), Titles
IV (e) and XIX of the Social Security Act, or any other applicable federal laws.
42-10-124. Effect of compacts. A compact entered into under 42-10-121 through 42-10-128 has the force and effect of law.
42-10-125. Compacts -- required contents. A compact under 42-10-121 through 42-10-128 must contain:
(1) a provision making it available for joinder by all states;
(2) a provision or provisions for withdrawal from the compact upon written notice to the parties, but with a period of 1 year between the date of the notice
and the effective date of the withdrawal;
(3) a provision requiring that the protections afforded by or pursuant to the compact continue in force for the duration of the adoption assistance and
be applicable to all children and their adoptive parents who on the effective date of the withdrawal are receiving adoption assistance from a party state
other than the one in which they are resident and have their principal place of abode;
(4) a provision requiring that each:
(a) instance of adoption assistance to which the compact applies be covered by an adoption assistance agreement in writing between the adoptive parents
and the state child welfare agency of the state that undertakes to provide the adoption assistance; and
(b) agreement be expressly for the benefit of the adopted child and enforceable by the adoptive parents and the state agency providing the adoption assistance;
and
(5) other provisions as may be appropriate to implement the proper administration of the compact.
42-10-126. Compacts -- optional contents. A compact under 42-10-121 through 42-10-128 may contain:
(1) provisions establishing procedures and entitlement to medical, developmental, or other social services for the adopted child in accordance with applicable
laws, even though the child and the adoptive parents are in a state other than the one responsible for or providing the services or the funds to defray
part or all of the costs of the services; and
(2) other provisions as may be appropriate or incidental to the proper administration of the compact.
42-10-127. Medical benefits -- rules. (1) The provisions of this section apply only when the compact entered by this state and the other state under
42-10-121 through 42-10-128 provides that the adoption assistance state, whether it be this state or the other state, shall continue medical assistance
to children in accordance with the adoption assistance agreements made by the adoption assistance state after the children have changed their residence
to this state or to the other state. All other children entitled to medical assistance in this state are eligible to receive it in accordance with the applicable
laws and procedures.
(2) A child with special needs residing in this state who is the subject of an adoption assistance agreement with another state is entitled to receive medical
assistance identification from this state upon the filing in the office of the department of public health and human services located in the county of the
child's residence a copy of the adoption assistance agreement. Medical assistance identification gained pursuant to this section entitles the holder to
processing and payment on claims of the holder in the same manner and pursuant to the same conditions and procedures as other recipients of medical assistance.
(3) The department of public health and human services shall provide coverage and benefits for a child who is in another state who is covered by an adoption
assistance agreement entered into in this state for coverage or benefits, if any, provided for under the adoption assistance agreement made in this state
but not provided by the residence state. The adoptive parents acting for the child may submit evidence of payment for services or benefit amounts not payable
in the residence state and must be reimbursed for the services. However, there may not be reimbursement for services or benefit amounts covered under any
insurance or other third-party medical contract or arrangement held by the child or the adoptive parents. The department of public health and human services
shall adopt rules implementing this subsection. The additional coverage and benefit amounts provided by this subsection are for services for which there
is no federal contribution or for which, if federally aided, contributions are not provided by the residence state. Rules adopted pursuant to this subsection
must include procedures to be followed for obtaining prior approval for services covered by this subsection when prior approval is required.
42-10-128. Fraudulent obtaining of public assistance. The provisions of 53-2-107 on fraudulently obtaining public assistance apply to coverage and benefits
that may be obtained under 42-10-121 through 42-10-128. | 
