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Statutes: Montana

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December 19, 2023

41-3-615. Reinstatement of parental rights

(1) A child whose parent’s rights were terminated under this chapter or a party whose parental rights were terminated under this chapter may petition the court to reinstate parental rights if:

(a) the child was adjudicated a youth in need of care under this chapter;

(b) the child’s parent’s rights were terminated in a proceeding under this chapter;

(c) the child has not achieved the child’s permanency plan or the permanency plan has not been sustained; and

(d) two years have passed since the final order terminating parental rights was entered.

(2) If a parent of a child eligible to petition for reinstatement of parental rights under subsection (1) contacts the department or the child’s guardian ad litem regarding reinstatement of parental rights, the department or the guardian ad litem shall notify the child about the child’s right to petition for reinstatement of parental rights under this section.

(3) A child filing a petition under this section:

(a) is entitled to representation by counsel; and

(b) shall sign the petition unless good cause exists for not doing so.

(4)(a) If, after considering the parent’s fitness and interest in reinstatement of parental rights, the court finds that the best interests of the child may be served by reinstatement of parental rights, the court shall order that a hearing on the merits of the petition be held.

(b) The court shall provide prior notice of a hearing under subsection (4)(a) to:

(i) the department;

(ii) the child’s attorney and the child;

(iii) the child’s parent whose parental rights are the subject of the petition;

(iv) any parent whose rights have not been terminated;

(v) the child’s current foster parent, relative caregiver, guardian, or custodian; and

(vi) if applicable, the child’s tribe.

(5) After a hearing, the court shall conditionally grant the petition, reinstating the rights of one or both parents, if the court finds by clear and convincing evidence that:

(a) both the parent and the child consent to the reinstatement of parental rights;

(b) in accordance with subsection (6):

(i) the child has not achieved the child’s permanency plan and is not likely to imminently achieve the child’s permanency plan; or

(ii) the child has not sustained the child’s permanency plan; and

(c) in accordance with subsection (7), reinstatement of parental rights is in the child’s best interest.

(6) In determining whether the child has achieved the child’s permanency plan or is likely to achieve the child’s permanency plan, the court shall review information provided by the department related to any efforts to achieve the permanency plan, including efforts to achieve adoption or a permanent guardianship.

(7) In determining whether reinstatement of parental rights is in the child’s best interests, the court shall consider but is not limited to the following:

(a) whether the parent whose rights are to be reinstated is a fit parent and has remedied the parent’s deficiencies documented in the record of the termination proceedings and in the termination order;

(b) whether the child is able to express the child’s preference;

(c) whether the reinstatement of parental rights will present a risk to the child’s health, welfare, or safety;

(d) whether the benefit to the child of reinstatement of parental rights outweighs the potential lack of permanency for the child; and

(e) whether other material changes in circumstances exist that would warrant reinstating parental rights.

(8)(a) If the court conditionally grants the petition under subsection (7), the proceedings must be continued for 6 months and a temporary order of reinstatement must be entered.

(b) Except as provided in subsection (8)(c), during this time:

(i) the child must be placed in the parent’s custody; and

(ii) the department shall develop a reunification plan for the child and shall provide transition services to the family, as appropriate.

(c) If at any time the department alleges that the child has been abused or neglected by the parent, the department shall petition the court for an order dismissing the temporary reinstatement of parental rights. The court shall grant the petition based on a preponderance of the evidence that the child has been abused or neglected.

(9)(a) After the child has successfully been placed with the parent for 6 months, the court shall enter a final order reinstating parental rights that restores all rights, powers, privileges, immunities, duties, and obligations of the parent to the child, including those relating to custody, control, and, subject to subsection (9)(c), support of the child. The court shall direct the clerk of court to provide a certified copy of the final order of reinstatement of parental rights to the parent at no cost.

(b) The reinstatement of parental rights pursuant to subsection (9)(a) does not vacate or otherwise affect the validity of the original termination order.

(c) A parent whose rights are reinstated under subsection (9)(a) may not be held liable for any child support owed to the department or costs of other services provided to the child for the period beginning on the date parental rights were terminated and ending on the date parental rights were reinstated.

(10) This section may not be construed to create a cause of action against the state or its employees concerning the original termination.