[FORM ICWA P-8]ICWA PETITION FOR PLC/TPR
[NAME], County Attorney
[STREET ADDRESS OR PO BOX]
[CITY, STATE AND ZIP CODE]
[PHONE NUMBER]
Attorney for Department
MONTANA [NUMBER] JUDICIAL DISTRICT COURT, [NAME] COUNTY
In the Matter of ) Cause No. DN- [NUMBER]
) Companion Cause No. DN-[NUMBER]
[CHILD’S NAME], )
)
YOUTH IN NEED OF CARE )
PETITION FOR PERMANENT LEGAL CUSTODY, TERMINATION OF PARENTAL RIGHTS WITH RIGHT TO CONSENT TO ADOPTION and REQUEST FOR HEARING
COMES NOW, the Department of Public Health and Human Services, Child and Family Services Division (the Department), by and through [ATTORNEY], [ATTORNEY TITLE], and respectfully petitions the Court to issue an Order for permanent legal custody and termination of parental rights with right to consent to adoption, all as is more particularly described in the Affidavit of Child Protection Specialist [SW NAME] dated [DATE] attached hereto and incorporated by reference.
I. PERTINENT INFORMATION
The pertinent information regarding the above-named youth follows:
[CHILD’S NAME][DOB][LOCATION OF CHILD]
The pertinent information regarding the parents having legal custody of the youth follows:
Birth mother:Birth father:
[BIRTH MOTHER NAME][BIRTH FATHER NAME]
[STREET ADDRESS][STREET ADDRESS]
[CITY, STATE][CITY, STATE]
c. The pertinent information regarding any other persons who are necessary parties to this action follows:
[INSERT INFORMATION PERTAINING TO THE APPLICABLE TRIBE]
II. RELIEF REQUESTED
A. TERMINATION OF PARENTAL RIGHTS WITH RIGHT TO CONSENT TO ADOPTION
1. The above-named child was adjudicated as a Youth in Need of Care within the meaning of Mont. Code Ann. § 41-3-102, by order of this Court dated [DATE OF ORDER]. The nature of abuse or neglect is as follows: [STATE NATURE OF ABUSE/NEGLECT], all as more particularly described in the record and the attached affidavit of Child Protection Specialist [NAME OF SOCIAL WORKER] dated [DATE].
2. [NAME] is the birth mother of [CHILD’S INITIALS], born [DOB]. The child’s birth father is [NAME].
3. [Choose applicable grounds for TPR as to birth mother and describe briefly]:
(a) Birth mother executed a valid relinquishment pursuant to Mont. Code Ann. §§ 42-2-402 and 42-2-412 on [DATE], which was filed with the Court on [DATE],
(b)Birth mother has left her child under circumstances that make reasonable the belief that she does not intend to resume care of the child and as such has committed abandonment as set forth in Mont. Code Ann. § 41-3-102(1)(a)(i). [STATE SPECIFIC FACTS JUSTIFIYING ABANDONMENT, example: birth mother has not had any contact with the child for a period of 1 year and has not contacted the Department concerning the welfare of her child despite being aware the child was in Department custody].
(c) Birth mother was convicted of a sexual intercourse felony in which the child is born. See attached Exhibit A, Judgment and Sentencing.
(d) Birth mother as subjected a child to Mont. Code Ann. §
41-3-423([CHOOSE THE SUBJECTION WHICH APPLIES]),
(i)subjected child to aggravated circumstances (abandonment, torture, chronic abuse, sexual abuse, chronic, severe neglect of a child)
(ii)committed aggravated assault against a child
(iii)committed neglect of a child that resulted in serious bodily injury or death
(iv)had parental rights to child’s sibling involuntarily terminated and circumstances are relevant to ability to care for child at issue.
(f) child was adjudicated a youth in need of care and birth mother failed to successfully comply with court ordered treatment plan, which was ordered on [DATE] and conduct/condition is unlikely to change within reasonable time.]
Based upon Mont. Code Ann. §41-3-609(4), a treatment plan is not required if:
(a)the parent meets the criteria of Mont. Code Ann. § 41-3-609(1)(a)-(1)(e);
(b)two medical doctors or clinical psychologists submit testimony that eh parent cannot parent within a reasonable time
(c)the parent will be incarcerated for more than 1 year & reunification with the parent is not in the child’s best interests
(d)the death or serious bodily injury of a child caused by abuse or neglect by the parent has occurred
4. [Choose applicable grounds for TPR as to birth father and describe briefly]:
(a) Birth father executed a valid relinquishment pursuant to Mont. Code Ann. §§ 42-2-402 and 42-2-412 on [DATE], which was filed with the Court on [DATE],
(b)Birth father has left his child under circumstances that make reasonable the belief that he does not intend to resume care of the child and as such has committed abandonment as set forth in Mont. Code Ann. § 41-3-102(1)(a)(i). [STATE SPECIFIC FACTS JUSTIFIYING ABANDONMENT, example: birth father has not had any contact with the child for a period of 1 year and has not contacted the Department concerning the welfare of his child despite being aware the child was in Department custody].
(c) Birth father was convicted of a sexual intercourse felony in which the child is born. See attached Exhibit A, Judgment and Sentencing.
(d) Birth father as subjected a child to Mont. Code Ann. §
41-3-423([CHOOSE THE SUBJECTION WHICH APPLIES]),
(i)subjected child to aggravated circumstances (abandonment, torture, chronic abuse, sexual abuse, chronic, severe neglect of a child)
(ii)committed aggravated assault against a child
(iii)committed neglect of a child that resulted in serious bodily injury or death
(iv)had parental rights to child’s sibling involuntarily terminated and circumstances are relevant to ability to care for child at issue.
(e) putative father has failed to contribute to child support for 1 year, failed to establish a substantial relationship with the child or failed to register with the putative child registry,
(f) child was adjudicated a youth in need of care and birth father failed to successfully comply with court ordered treatment plan, which was ordered on [DATE] and conduct/condition is unlikely to change within reasonable time.]
Based upon Mont. Code Ann. §41-3-609(4), a treatment plan is not required if:
(a)the parent meets the criteria of Mont. Code Ann. § 41-3-609(1)(a)-(1)(e);
(b)two medical doctors or clinical psychologists submit testimony that eh parent cannot parent within a reasonable time
(c)the parent will be incarcerated for more than 1 year & reunification with the parent is not in the child’s best interests
(d)the death or serious bodily injury of a child caused by abuse or neglect by the parent has occurred
5. It is no longer in the best interests of the child to continue to work towards reunification with birth mother or birth father, as is more particularly described in the attached affidavit of Child Protection Specialist [SOCIAL WORKER NAME].
6. Accordingly, based on the foregoing and pursuant to Mont. Code Ann. § 41-3-609(1)([INSERT APPLICABLE SUBSECTION]), Petitioner alleges that there is clear and convincing evidence to establish that the following circumstances exist [STATEMENT OF GROUNDS FOR TERMINATION].
7. The conduct or condition of birth mother/father rendering him/her unfit is unlikely to change within a reasonable time.
8. Continuation of the parent-child legal relationship will likely result in continued abuse or neglect or the conduct or condition of birth mother renders her unfit, unable or unwilling to give the child adequate parental care.
9. Moreover, Petitioner alleges that there is clear and convincing evidence that the best interests of the child would be served by terminating the parental rights of birth mother and birth father, and awarding Permanent Legal Custody to the Department with authority to consent to the child’s adoption.
10. The Department has made active efforts to prevent the breakup of the Indian family as follows:
a. [List services provided by the Department]
RELIEF REQUESTED
WHEREFORE, the Department requests the following relief:
1. For an Order from this Court terminating the parent-child legal relationship between [CHILD’S INITIALS], the above named child, and [MOTHER’S INITIALS], birth mother.
2. For an Order from this Court terminating the parent-child legal relationship between [CHILD’S INITIALS], the above named child, and [FATHER’S INITIALS], birth father.
3. For an Order from this Court granting Permanent Legal Custody of [CHILD’S INITIALS] to the Department of Public Health and Human Services with the right to consent to adoption.
4. An order continuing all prior court orders until a hearing can be held in this matter; and
5. Any other relief that the Court deems to be in the best interests of the child.
REQUEST FOR HEARING
The undersigned respectfully requests the hearing on this Petition be set for a hearing as soon as this matter can be heard in the District Court before the Honorable [JUDGE NAME], [COURT NAME].
DATED this ______day of ______, 201__.
______
[ATTORNEY NAME]
[ATTORNEY TITLE]
NOTICE
Please take notice that pursuant to Mont. Code Ann. § 41-3-427(1)(d), (2013), you, as the child’s parent, guardian or other person having physical custody of the child, may have a support person present during any in-person meeting with a Department social worker concerning emergency protective services. The Department will make reasonable accommodations in scheduling an in-person meeting with the social worker.
Furthermore, pursuant to Mont. Code Ann. § 41-3-422(13)(2013) you, as the child’s parent, guardian or other person having physical or legal custody of the child, have the right to:
(a)request the appointment of counsel if indigent, or is appointment of counsel us required under the federal Indian Child Welfare Act, if applicable; and
(b) contest the allegations in the petition.
The following timelines apply to hearings and determinations required under this chapter:
Emergency protective services: a petition must be filed within five (5) workings days.
Show cause hearing: must be conducted with 20 days of the filing of the initial child abuse and neglect petition unless otherwise stipulated by the parties pursuant to Mont. Code Ann. § 41-3-434(2013) or unless an extension of time is granted by the court. Determinations at a show cause hearing include those contained within Mont. Code Ann. § 41-3-432(5)(2013).
Temporary investigative authority: may not be issues for a period longer than 90 days.
Adjudicatory hearing: must be held within 90 days of a show cause hearing under Mont. Code Ann. § 41-3-437 (2013).
Dispositional hearing: unless a petition is dismissed or unless otherwise stipulated by the parties pursuant to Mont. Code Ann. § 41-3-434 (2013) or ordered by the court, a dispositional hearing must be held on every petition filed within 20 days after an adjudicatory order has been entered under Mont. Code Ann. § 41-3-437 (2013).
Temporary Legal Custody: an order for temporary legal custody may be in effect for no longer than 6 months. Before the expiration of the order for temporary legal custody, the county attorney, the attorney general, or an attorney hired by the county may petition for an extension of temporary legal custody, not to exceed 6 months, upon showing that additional time is necessary for the parent to successfully complete a treatment plan and a judicial finding that an extension is in the child’s best interests.
Permanency hearing: If the court finds that preservation or reunification services are not necessary pursuant to subsection (2) or (3) of Mont. Code Ann. § 41-3-423 (2013), a permanency hearing must be held within 30 days of that determination and reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanency placement of the child. Otherwise, a permanency hearing must be held no later than 12 months after the initial court findings that the child has been subjected to abuse or neglect, or 12 months after the child’s first 60 days of removal from the home, whichever comes first.
Permanent Legal Custody: If a child is in foster care for 15 of the last 22 months, state law presumes that termination of parental rights is in the best interests of the child and the state is required to file a petition to terminate parental rights.
CERTIFICATE OF SERVICE
I hereby certify that on this ____ day of ----, 20__, I caused to be delivered a true and accurate copy of the foregoing Petition for Permanent Legal Custody, Termination of Parental Rights with Right to Consent to Adoption and Request for Hearing to the following:
Dated: ______
PETITION FOR PERMANENT LEGAL CUSTODY, TERMINATION OF PARENTAL RIGHTS WITH RIGHT TO CONSENT TO ADOPTION and REQUEST FOR HEARING Page 1 of 7