Child Adoption Laws
Montana

Part 2 (Below)        Part 1 (Click Here)

History: En. Sec. 79, Ch. 480, L. 1997; amd. Sec. 8, Ch. 257, L. 1999.

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.

History: En. Sec. 80, Ch. 480, L. 1997.

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.

History: En. Sec. 81, Ch. 480, L. 1997.

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.

History: En. Sec. 82, Ch. 480, L. 1997.

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.

History: En. Sec. 83, Ch. 480, L. 1997.

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) The department may contract with a licensed social worker or a licensed child-placing agency to conduct the evaluation.
(3) The prospective adoptive parent and the home of the prospective adoptive parent must be studied and evaluated according to the department's or licensed child-placing agency's standards for placement of a child.
(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.

History: En. Sec. 84, Ch. 480, L. 1997.

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.

History: En. Sec. 85, Ch. 480, L. 1997; amd. Sec. 9, Ch. 257, L. 1999.

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.

History: En. Sec. 86, Ch. 480, L. 1997.

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.

History: En. Sec. 87, Ch. 480, L. 1997

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.

History: En. Sec. 88, Ch. 480, L. 1997.

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.

History: En. Sec. 89, Ch. 480, L. 1997.

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 evaluation when a parent or guardian places a child for adoption directly with an extended family member of the child. A postplacement evaluation must be conducted during the pendency of a proceeding for adoption.

History: En. Sec. 90, Ch. 480, L. 1997; amd. Sec. 10, Ch. 257, L. 1999.

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.

History: En. Sec. 91, Ch. 480, L. 1997; amd. Sec. 11, Ch. 257, L. 1999.

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 42-3-202.
(2) The department or agency shall prepare a written report containing the results of its evaluation.

History: En. Sec. 92, Ch. 480, L. 1997.

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.

History: En. Sec. 93, Ch. 480, L. 1997.

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.

History: En. Sec. 94, Ch. 480, L. 1997.

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.

History: En. Sec. 95, Ch. 480, L. 1997.

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.

History: En. Sec. 96, Ch. 480, L. 1997.

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.

History: En. Sec. 97, Ch. 480, L. 1997.

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.

History: En. Sec. 98, Ch. 480, L. 1997.

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.

History: En. Sec. 99, Ch. 480, L. 1997.

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.

History: En. Sec. 100, Ch. 480, L. 1997.

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.

History: En. Sec. 101, Ch. 480, L. 1997.

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.

History: En. Sec. 102, Ch. 480, L. 1997.

42-4-116. Records. All records filed with the court in a direct parental placement adoption must be permanently maintained by the court.

History: En. Sec. 103, Ch. 480, L. 1997.

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.

History: En. Sec. 104, Ch. 480, L. 1997.

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.

History: En. Sec. 105, Ch. 480, L. 1997.

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.

History: En. Sec. 106, Ch. 480, L. 1997.

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.

History: En. Sec. 107, Ch. 480, L. 1997.

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.

History: En. Sec. 108, Ch. 480, L. 1997.
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.

History: En. Sec. 109, Ch. 480, L. 1997.

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.

History: En. Sec. 110, Ch. 480, L. 1997.

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.

History: En. Sec. 111, Ch. 480, L. 1997.

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.

History: En. Sec. 112, Ch. 480, L. 1997.

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.

History: En. Sec. 113, Ch. 480, L. 1997; amd. Sec. 12, Ch. 257, L. 1999.

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.

History: En. Sec. 114, Ch. 480, L. 1997; amd. Sec. 13, Ch. 257, L. 1999

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.

History: En. Sec. 115, Ch. 480, L. 1997; amd. Sec. 14, Ch. 257, L. 1999.

42-4-305. Repealed. Sec. 20, Ch. 257, L. 1999.

History: En. Sec. 116, Ch. 480, L. 1997.

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.

History: En. Sec. 117, Ch. 480, L. 1997; amd. Sec. 15, Ch. 257, L. 1999.

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.

History: En. Sec. 118, Ch. 480, L. 1997; amd. Sec. 16, Ch. 257, L. 1999.

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.

History: En. Sec. 119, Ch. 480, L. 1997.

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.

History: En. Sec. 120, Ch. 480, L. 1997.

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.

History: En. Sec. 121, Ch. 480, L. 1997.

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.

History: En. Sec. 122, Ch. 480, L. 1997.

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.

History: En. Sec. 123, Ch. 480, L. 1997.

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.

History: En. Sec. 124, Ch. 480, L. 1997.

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.

History: En. Sec. 125, Ch. 480, L. 1997.

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; or
(b) the parent placing the child for adoption in a direct parental placement adoption.

History: En. Sec. 126, Ch. 480, L. 1997; amd. Sec. 17, Ch. 257, L. 1999.

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.

History: En. Sec. 127, Ch. 480, L. 1997.

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; and
(e) 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) The notice of hearing must be served in a manner appropriate under the Montana Rules of Civil Procedure.
(4) 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.

History: En. Sec. 128, Ch. 480, L. 1997.

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.

History: En. Sec. 129, Ch. 480, L. 1997.

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.

History: En. Sec. 130, Ch. 480, L. 1997.

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.

History: En. Sec. 131, Ch. 480, L. 1997.

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.

History: En. Sec. 132, Ch. 480, L. 1997.

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.

History: En. Sec. 133, Ch. 480, L. 1997.

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.

History: En. Sec. 134, Ch. 480, L. 1997; amd. Sec. 18, Ch. 257, L. 1999.

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.

History: En. Sec. 135, Ch. 480, L. 1997.
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.

History: En. Sec. 136, Ch. 480, L. 1997; amd. Sec. 19, Ch. 257, L. 1999.
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.

History: En. Sec. 137, Ch. 480, L. 1997.

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.

History: En. Sec. 138, Ch. 480, L. 1997.

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.

History: En. Sec. 139, Ch. 480, L. 1997.

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.

History: En. Sec. 140, Ch. 480, L. 1997.

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.

History: En. Sec. 141, Ch. 480, L. 1997.

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; and
(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.
(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.

History: En. Sec. 142, Ch. 480, L. 1997.

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.

History: En. Sec. 143, Ch. 480, L. 1997.

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.

History: En. Sec. 144, Ch. 480, L. 1997.

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.

History: En. Sec. 145, Ch. 480, L. 1997.

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.

History: En. Sec. 146, Ch. 480, L. 1997.

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.

History: En. Sec. 147, Ch. 480, L. 1997

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.

History: En. Sec. 148, Ch. 480, L. 1997.

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.

History: En. Sec. 149, Ch. 480, L. 1997.

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.

History: En. Sec. 150, Ch. 480, L. 1997.

42-8-101. Definitions. As used in this part, the following definitions apply:
(1) "Person" includes any individual, partnership, voluntary association, or corporation.
(2) "Placement activities" means any of the following:
(a) placement of a child for adoption;
(b) arranging or providing short-term foster care for a child pending an adoptive placement; or
(c) facilitating placement of a child by maintaining a list in any form of birth parents or prospective adoptive parents.
(3) "Soliciting" means to request, offer, promote, refer, or entice, either directly or indirectly through correspondence, advertising, or other method, a potential adoptive parent or couple, birth parent or parents, or placement of a child by a birth parent.

History: En. Sec. 151, Ch. 480, L. 1997.

42-8-102. General duties of department. The department shall:
(1) issue licenses to entities engaged in child placement activities on October 1, 1997, if the licensed applicant has met the requirements established by the department by rule;
(2) prescribe the conditions upon which child-placing licenses are issued and revoked; and
(3) adopt rules for the conduct of the affairs of child-placing agencies that are consistent with the welfare of children.

History: En. Sec. 152, Ch. 480, L. 1997.

42-8-103. License required -- term of license -- no fee charged. (1) Only an entity holding a current child-placing agency license issued by the department may act as an agency for the purpose of:
(a) procuring or selecting proposed adoptive homes;
(b) placing children in proposed adoptive homes;
(c) soliciting persons to adopt children or arranging for persons to adopt children;
(d) soliciting persons to relinquish children or place children in potential adoptive homes; or
(e) engaging in placement activities.
(2) Licenses are valid for 1 year after issuance. A fee may not be charged for a license.

History: En. Sec. 153, Ch. 480, L. 1997.

42-8-104. Requirements for licensure. The department may issue licenses to agencies meeting the following minimum requirements:
(1) The chief function of the agency or a specific program within the agency must be the care and placement of children.
(2) The agency operates on a nonprofit basis and is financially responsible in and for its operation.
(3) The agency meets the requirements as designated by the department by rule.
(4) The directing or managing personnel of the agency must be qualified both on the basis of professional educational experience and character.
(5) Complete records must be kept of both the children and adopting parents with which the agency deals, and the records must be maintained in accordance with 42-6-101.
(6) The agency shall maintain and use an in-state office for making a social study of the child and proposed adoptive parent before placement of the child, particularly with regard to:
(a) the physical and mental health, emotional stability, and personal integrity of the adoptive parent and the parent's ability to promote the child's welfare; and
(b) the physical and mental condition of the child and the child's family background.
(7) The agency must have the ability to provide education for adoptive parents and counseling for placing parents as required in 42-2-409 and department rules.
(8) The agency shall agree to cooperate with courts having jurisdiction in adoptive matters and with other public agencies having to deal with the welfare of children.
(9) The agency shall, annually, submit a full, complete, and true financial statement to the department, and the statement must contain a full accounting of the operations of the agency during the preceding year.

History: En. Sec. 154, Ch. 480, L. 1997.

42-8-105 through 42-8-106 reserved.

42-8-107. Investigation of agencies -- cancellation of licenses. (1) The department may, through its authorized representative, investigate the operations of licensed agencies and may cancel licenses for failure to observe prescribed rules or to maintain minimum requirements. An agency shall give to representatives of the department all information requested and allow them to observe the operation of the agency.
(2) When the department finds, upon the basis of the statement required by 42-8-104(9) or upon its own investigation, that an agency has not conducted or is financially incapable of conducting its operations according to the established standards, the department may suspend, revoke, or deny a license for the agency.

History: En. Sec. 155, Ch. 480, L. 1997.

42-8-108. Violation a misdemeanor -- penalty. (1) Any person who maintains or conducts an agency for procuring the adoption of children or assists in the maintaining or conducting of an agency without first obtaining a child-placing license is guilty of a misdemeanor and upon conviction of a first offense shall be punished by a fine not exceeding $1,000 or imprisonment for up to 1 year in jail and shall be enjoined from further engaging in agency activities.
(2) Upon the second conviction of a person for violation of 42-8-103, 42-8-104, and 42-8-107, the person is guilty of a felony and may be punished by a fine not exceeding $10,000 or imprisonment for up to 5 years in prison and shall be enjoined from further engaging in agency activities.

History: En. Sec. 156, Ch. 480, L. 1997.

42-10-101. Short title. This part may be cited as "The Subsidized Adoption Act of 1977".

History: En. 71-1806 by Sec. 1, Ch. 434, L. 1977; R.C.M. 1947, 71-1806; Sec. , MCA 1989; redes. by Code Commissioner, 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. 71-1807 by Sec. 2, Ch. 434, L. 1977; R.C.M. 1947, 71-1807; Sec. , MCA 1989; redes. by Code Commissioner, 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997; amd. Sec. 1, Ch. 21, L. 1999.

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.

History: En. 71-1808 by Sec. 3, Ch. 434, L. 1977; R.C.M. 1947, 71-1808; amd. Sec. 11, Ch. 609, L. 1987; Sec. , MCA 1989; redes. by Code Commissioner, 1991; amd. Sec. 344, Ch. 546, L. 1995; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997; amd. Sec. 2, Ch. 21, L. 1999.

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.

History: En. 71-1809 by Sec. 4, Ch. 434, L. 1977; R.C.M. 1947, 71-1809; Sec. , MCA 1989; redes. by Code Commissioner, 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. 71-1811 by Sec. 6, Ch. 434, L. 1977; R.C.M. 1947, 71-1811(5); Sec. , MCA 1989; redes. by Code Commissioner, 1991; amd. Sec. 57, Ch. 18, L. 1995; amd. Sec. 170, Ch. 480, L. 1997; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. 71-1810 by Sec. 5, Ch. 434, L. 1977; R.C.M. 1947, 71-1810(1) thru (3); Sec. , MCA 1989; redes. by Code Commissioner, 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997; amd. Sec. 3, Ch. 21, L. 1999.

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.

History: En. 71-1810 by Sec. 5, Ch. 434, L. 1977; R.C.M. 1947, 71-1810(4); Sec. , MCA 1989; redes. by Code Commissioner, 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997; amd. Sec. 4, Ch. 21, L. 1999.

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.

History: En. 71-1811 by Sec. 6, Ch. 434, L. 1977; R.C.M. 1947, 71-1811(1), (3); Sec. , MCA 1989; redes. by Code Commissioner, 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997; amd. Sec. 5, Ch. 21, L. 1999.

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.

History: En. 71-1811 by Sec. 6, Ch. 434, L. 1977; R.C.M. 1947, 71-1811(2); Sec. , MCA 1989; redes. by Code Commissioner, 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997; amd. Sec. 6, Ch. 21, L. 1999.

42-10-110. Repealed. Sec. 8, Ch. 21, L. 1999.

History: En. 71-1811 by Sec. 6, Ch. 434, L. 1977; R.C.M. 1947, 71-1811(4); Sec. , MCA 1989; redes. by Code Commissioner, 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 2, Ch. 274, L. 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 1, Ch. 274, L. 1991; amd. Sec. 345, Ch. 546, L. 1995; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 3, Ch. 274, L. 1991; amd. Sec. 346, Ch. 546, L. 1995; amd. Sec. 230, Ch. 42, L. 1997; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 4, Ch. 274, L. 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 5, Ch. 274, L. 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 5, Ch. 274, L. 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 6, Ch. 274, L. 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 7, Ch. 274, L. 1991; amd. Sec. 347, Ch. 546, L. 1995; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997.

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.

History: En. Sec. 8, Ch. 274, L. 1991; Sec. , MCA 1995; redes. by Sec. 174, Ch. 480, L. 1997

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