Montanalaw That Impacts Children with Special Needs

MontanaLaw that Impacts Children with Special Needs

Definitions

• Mont. Code Ann. § 42-10-103.

(1) “Child with special needs” means a child who is a dependent of a public or voluntary licensedchild 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) 6 years of age or older; or

(e) a member of a sibling group to be placed together for adoption.

• Mont. Code Ann. § 20-7-401-1. Child with Disability Defined

“Child with a disability” means a child evaluated in accordance with the regulations of the Individuals With Disabilities Education Act as having a disability and who because of the disability needs special education and related services.

Child Support

• Mont. Code Ann. § 40-4-204(1)-(3).Child support — orders to address health insurance — withholding of child support.

(1) In a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court shall order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for the child’s support, without regard to marital misconduct.

(2) The court shall consider all relevant factors, including:

(a) the financial resources of the child;

(b) the financial resources of the parents;

(c) the standard of living that the child would have enjoyed had the marriage not been dissolved;

(d) the physical and emotional condition of the child and the child’s educational and medical needs;

(e) the age of the child;

(f) the cost of day care for the child;

(g) any parenting plan that is ordered or decided upon; and

(h) the needs of any person, other than the child, whom either parent is legally obligated to support.

(3)

(a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209. The guidelines must be used in all cases, including cases in which the order is entered upon the default of a party and those in which the parties have entered into an agreement regarding the support amount. A verified representation of the defaulting parent’s income, based on the best information available, may be used when a parent fails to provide financial information for use in applying the guidelines. The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or that it is inappropriate in that particular case.

(b) If the court finds that the guideline amount is unjust or inappropriate in a particular case, it shall state its reasons for that finding. Similar reasons must also be stated in a case in which the parties have agreed to a support amount that varies from the guideline amount. Findings that rebut and vary the guideline amount must include a statement of the amount of support that would have ordinarily been ordered under the guidelines.

(c) If the court does not order a parent owing a duty of support to a child to pay any amount for the child’s support, the court shall state its reasons for not ordering child support.

(d) Child support obligations established under this section are subject to the registration and processing provisions of Title 40, chapter 5, part 9.

Support for Disabled Adult-Child (Post Minority Age Support)

• Mont. Code Ann. § 40-6-214.Reciprocal duties of parents and children in maintaining each other.

It is the duty of the father, the mother, and the children of any poor person who is unable to provide self-maintenance by work to maintain that person to the extent of their ability. The promise of an adult child to pay for necessaries previously furnished to that parent is binding.

• V.L.-S. v. M.S. (In re M.A.S.), 266 P.3d 1267 (Mont. 2011).

M.A.S. and C.M.S. are the twin children of Father and V.L-S. (Mother), who divorced when the twins were eight years old. Now twenty-two years old, the twins were born with significant physical and mental disabilities and require full-time care and supervision. The mother filed a petition in the guardian and conservatorship actions, requesting continued child support from the father. The trial court ordered the father to provide child support. On appeal, the court determined that Mont. Code Ann. § 40-6-214 had clear application to the facts of the case. The trial court's determination of the twins' incapacity for purposes of the guardianship statutes satisfied the statute's predicate that they be unable to provide self-maintenance by work. The statute imposed a duty on the father to support the twins to the extent of his ability. The father's duty ran directly to the twins and was enforceable under the guardianship statute, Mont. Code Ann. § 72-5-321(2)(d)(i).

Credit for Child Support from Supplemental Security Income

• Anderson v. Anderson, 323 P.3d 895 (Mont. 2014).

The Child Support Guidelines provide that a parent's income for child support calculations includes actual income, imputed income, or any combination thereof. Income does not include lump sum social security payments or social security benefits received by a child or on behalf of a child as the result of a parent's disability. Imputed income is attributed to a parent based on the provisions of Admin. R. M. 37.62.106. Those provisions provide that it is appropriate to impute income to a parent when the parent is unemployed or underemployed, with certain exceptions, set forth in the rule. Admin. R. M. 37.62.106(2).

Father argues that the District Court erred by failing to consider Mother’s social security benefits as resources available to the children. The law, however, is clear that that social security disability benefits should not be considered as "income" in these determinations

• In re Marriage of Kelleher, 2001 MT 275N (Mont. 2001).

The Supreme Court of Montana has held that Social Security benefits may be credited against a noncustodial parent's child support obligation. Inherent in this rule is the assumption that such benefits be used to support a child's present needs. The court has also held that the manner in which child support is to be used is left to the discretion of the custodial parent. Further, under Mont. Code Ann. § 40-6-212 an allowance may be made to the parent of a child out of the child's property for the past or future support and education of the child for the child's benefit.

Child Custody

• In re M.W., 49 P.3d 31 (Mont. 2002).

When determining custody, the district court is "bound to give primary consideration to the physical, mental, and emotional conditions and needs of the children." The best interests of the child are paramount in child custody cases and must take precedence over parental rights.

Special Needs Trust and a Ward’s Estate

• Special Needs Trust

Montana does not have a specific statute on the establishment of a special needs trust

Adoption Subsidy

• Mont. Code Ann. § 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 adoptthe 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 reasonableefforts have been made and without subsidy no appropriate adoptive family has been found for achild, 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 conditionsspecified in 42-10-103. The agency shall present evidence that reasonable efforts have been madeto place the child without subsidy. Upon such a showing, the department shall certify the child as achild with special needs.

• Mont. Code Ann. § 42-10-109.Special Needs Adoption Subsidy

Parents who adopt a child that meets the criteria of special needs may receive a subsidy whichwill vary in amount depending on the needs of the child, but it shall never exceed the cost of caringfor such child.

OtherLaws Impacting Special Needs Children

• Mont. Code Ann. § 20-7-411.

Children with disabilities are entitled to public education and must be educated with children who do not have disabilities. Students with disabilities may be educated separately from children who do not have disabilities if the disability is severe enough that education could not otherwise be satisfactory accomplished.

• In re Estates of Esterbrook, 80 P.3d 419 (Mont. 2003).

In action that sought court approval of personal injury settlement for minor children and thatresulted in appointment of conservator to oversee settlement proceeds, remand was warranted forpurpose of allowing trial court to further consider need for special-needs trust, which had beenrejected by trial court, since Supreme Court was concerned about well being and protection of thechildren, and special-needs trust could be used to preserve eligibility for Medicaid and othergovernment programs if children had been only partial compensated for their injuries.

• Great Falls Public Schools v. Johnson, 26 P.3d 734 (Mont. 2001).

Student was not required to exhaust administrative remedies, as provided in Individuals withDisabilities in Education Act (IDEA), before filing action with Human Rights Commissionclaiming that school district violated Montana Human Rights Act (MHRA) by failing to provideadequate physical access to high school; MHRA provided exclusive remedy for student's claim, asshe did not invoke IDEA's administrative remedies.

• Parini v. Missoula County High School, Dist. No. 1, 944 P.2d 199 (Mont. 1997).

Student diagnosed as learning disabled was not denied a free appropriate public education(FAPE) on theory that school district failed to properly test and evaluate him, improperly placedhim with emotionally disturbed students, and, failed to administer a comprehensive three-yearevaluation; there was no evidence that individualized education programs (IEPs) would have beenconstructed differently if a complete three-year reevaluation had been conducted, and schooldistrict made numerous good faith efforts to create an IEP.

State and Community Resources

• Healthy Montana Kids (HMK) Children's Health Insurance Plan

Healthy Montana Kids (HMK), Children's Health Insurance Plan is just one of many Montana Healthcare Programs offering a free or low-cost health insurance plan which provides coverage to eligible Montana children up to age 19. Medical benefits are administered through the Blue Cross Blue Shield (BCBS) of Montana Provider Network, except for Federally Qualified Health Centers, Rural Health Clinics and Community Based Psychiatric Rehabilitation and Support Services. Treatments and services must be medically necessary and the member must be enrolled at the time the service is delivered. Covered services include medical, dental, eyeglasses, and other related services. dphhs.mt.gov/hmk.aspx

• Montana Disability and Health Program

Established in 2002, the Montana Disability and Health (MTDH) Program is a partnership of the Department of Public Health and Human Services (MDPHHS) and The University of Montana Rural Institute (UMRI). MTDH collaborates with a wide range of community partners and people with disabilities, nationally recognized experts, and resource centers in selected areas.

MTDH is responsible for developing and implementing programs and services designed to

1)enhance program infrastructure and capacity;

2)improve state level surveillance and monitoring activities;

3)increase awareness of health-related disability policy initiatives;

4)increase health promotion opportunities for people with disabilities to maximize health;

5)improve access to health care for people with disabilities;

6)improve emergency preparedness among people with disabilities; and

7)effectively monitor and evaluate programs

activities.mtdh.ruralinstitute.umt.edu/?page_id=662

• Montana Independent Living Project Inc.

Montana Independent Living Project, Inc. (MILP) is a not-for-profit agency that provides services that promote independence for people with disabilities.

• Montana Parent Magazine

Montana Parent is owned and operated by three local moms (eight children between the three of us) and supported by another 12 moms and two dads (we total 30 kids in all).

We print a monthly magazine, 11 times a year, which can be found in hospitals, doctors’ offices, grocery stores, schools, restaurants and many other locations in Bozeman, Livingston, Butte and Helena. The magazine goes live on our website, the first of each month with our digital issue, where you can also find archives of previous issues, useful guides, a comprehensive event and activity calendar and our fabulous daily blog, “Gum In Your Hair.” Montana Parent also hosts Facebook pages for Bozeman, Butte and Helena.

The magazine itself features local kids on the cover (and within the pages) shot by local photographers and styled using products you can find in Southwest Montana.

The magazine’s content is provided by local writers with various areas of expertise, who share knowledge about parenting, babies, toddlers, school-aged kids, teens, college students, gardening, exercise, food and more.

Montana Parent is able to provide all of this for FREE thanks to the support of our advertisers. Please make sure you tell the local businesses you visit that you saw their ad or article in Montana Parent.

• Parents, Let's Unite for Kids

Serving children and families since 1984 PLUK represents the 30,000 families of children with disabilities and special health care needs in Montana, as well as serves as Montana's Parent Training and Information Center, the Family to Family Health Information and Education Center, and the Family Voices state affiliate.

• Reach Empowering Adults With Disabilities

Reach Inc. is a local, private, non-profit organization that’s been providing services to adults with developmental disabilities since 1974. Our mission is to empower the people we serve to attain their individual goals and aspirationsOver the last 40 years—since 1974—our organization has grown to serve over 100 clients in the Gallatin Valley with varying disabilities that alter brain function and impact IQ measurements. Reach is centrally operated from our main offices on Gallatin Park Drive in beautiful Bozeman, Montana. With our vocational Work Center, 6 full-service residential facilities, and a growing fleet of 18 vehicles, Reach provides substantial community support for adults with developmental disabilities and survivors of traumatic brain injuries.

reachinc.org

• Region IV Family Outreach, Inc.

Family Outreach is a private non-profit agency providing home-based education and support services to individuals throughout Southwestern Montana who have disabilities or developmental delays. The focus of our program is to teach families and friends how to teach skills to children and adults with special needs. In addition, the families and friends often request education regarding the disability and information about resources and services available.

• Special Needs Resource Project

Here you will find various resources including advocacy, government and private agencies/assistance programs, charities and foundations, child care resource listings, disability specific organizations, early intervention and much more.

• Special Needs Stop - Montana Directory of Special Needs and Disability Resources Gathering information and connecting with organizations in your area is an important part in achieving success for yourself or your loved one. Special Needs Stop is proud to offer a listing for Special Needs Resources for both state and national. Also included are Special Needs Resources offering support to family members and caregivers. Special Needs Stop directory is a starting point for individuals to gather information in regards to national and state organizations providing services for individuals with special needs and/or disabilities and their family members. It important to conduct your own research of any individual, organization, product or service included in Special Needs Stop Resource Directory. The listing of an individual or organization on this site is not intended as an endorsement of that individual or organization or any products or services they may offer.

• The Center for Children with Special Needs

Here you can find a directory to help locate resources in specific areas to help in caring for a child’s needs. Resource information includes:

Medical/Dental/Behavioral Health Services

Child Care/Respite Care

Therapy Services

Screening Programs

Hearing/Speech/Vision

Education Services/School Nurses

Health Insurance/Financial Assistance

Medical Supplies and Equipment

Home Care Services

Nutrition and Feeding

Recreation

Transportation

cshcn.org/resources-contacts/resources-directory/

• Thrive

Thrive is a community-based organization established in 1986. At the heart of Thrive lies a preventative, strength-based, empowerment model of working with parents and children. We provide families with the resources, tools, and support to raise healthy, successful children. Our programs have been developed using evidence-based practices, adapted to meet local community needs, and rigorously evaluated to ensure program efficacy. Thrive has developed critical community partnerships built on sharing design, implementation, management, evaluation, financial resources, and responsibilities for programs. This approach, which has the success of the child at its center, results in the highest quality services, maximizes scarce resources, and has a powerful impact on outcomes for children.