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Montana Safe Haven Laws

The “Montana Safe Haven Newborn Protection Act” governs laws relating to the safe abandonment of newborns in the state of Montana.[i]  In Montana, any emergency services provider may take temporary protective custody of an infant not more than 30 days old surrendered by its parent with intent not to return for the child.  The emergency services provider does not require a court order to accept custody. [ii]  Mont. Code Anno., § 40-6-402 defines “Emergency services provider” as:

(a)  a uniformed or otherwise identifiable employee of a fire department, hospital, or law enforcement agency when the individual is on duty inside the premises of the fire department, hospital, or law enforcement agency; or

(b)  any law enforcement officer, as defined in 7-32-201, who is in uniform or is otherwise identifiable.

Upon accepting custody, the provider shall take necessary actions to protect the physical health and safety of the child.[iii]  The emergency services provider shall also make reasonable effort to:

a)     inform the parent that by surrendering the newborn the parent is releasing the newborn to the Department Of Public Health and Human Services.  Thereafter, the Department shall place the child for adoption. [iv]

b)     inform the parent that he/she has a time period of 60 days to file a petition to regain custody of the newborn. [v]

c)     ascertain if the newborn has a tribal affiliation and, if so, ascertain relevant information regarding any Indian heritage of the newborn. [vi]

d)     provide the parent written material approved by or produced by the Department which includes information such as time period to file petition for custody and confidentiality of information given by the parent. The material shall also inform the parent that: they may not receive notice of any court proceedings; by surrendering the child the parent is placing the child for adoption; any Indian heritage of the newborn brings the newborn within the jurisdiction of the Indian Child Welfare Act; and the parent may contact the Department for more information and counseling. [vii]

e)     encourage the parent to provide relevant family or medical information.  They may also ask the parent to provide information regarding any tribal affiliation. [viii]

f)       encourage the parent to disclose his/her name. [ix]

g)     obtain the name of the non-relinquishing parent.  They may inform the parent that the state is required to make a reasonable attempt to identify the non-relinquishing parent, and collect medical information about the newborn to place the newborn for adoption.[x]

The emergency services provider may also inform the parent that they may receive confidential services from the Department.  They may request the parent to sign a relinquishment for the newborn to be used at a hearing to terminate parental rights. [xi]

An emergency services provider other than a hospital accepting temporary protective custody of a newborn shall transfer the newborn to a hospital.  The hospital shall accept and take into custody the transferred newborn.[xii]  After that, the hospital shall have the newborn examined by a physician.  If the physician determines that the surrendered child is not a child 30 days old or younger; or if the physician suspects that the child is a victim of child abuse or neglect, he/she may report that to the Department immediately. [xiii]  The physician shall also determine a birth date based on the infant’s examination if the actual date of birth of the infant is not known.[xiv]

If the surrendered child is a newborn and is not subject to any child abuse or neglect, the physician is not required to report to the Department.  In such cases, the hospital has to notify the Department Of Public Health And Human Services no later than the first business day after taking possession of the newborn that the hospital has taken a newborn into temporary protective custody. [xv]  The Department shall reimburse actual expenses incurred by the hospital in accepting and caring the newborn. [xvi]

Upon receiving notification from the hospital, the Department shall immediately assume the care, control, and temporary protective custody of the newborn.  After that, the Department may meet the parent of the newborn if the parent is known and willing.  The Department shall also arrange for the temporary placement of the newborn.   With the assistance from law enforcement officials it shall initiate steps to find out if the relinquished child is a missing child. [xvii]

Within 48 hours of assuming the care, control, and temporary protective custody of the newborn, the Department shall file a petition with the court, requesting appropriate relief.  It shall aim at achieving permanent placement for the newborn as early as possible.  Additionally, within 30 days of accepting the newborn, the Department shall make attempts to identify the newborn’s parents.  If the identity and address of that parent are unknown, the Department shall provide notice by publication in a newspaper of general circulation in the county where the newborn was surrendered.[xviii]

However, after assuming the care, custody, and control of a newborn the Department is not required to attempt to reunify the newborn with the newborn’s parents.  If the Department does not have any identifying information about either of the newborn’s parents, it is not required to search for relatives of the newborn as a placement or permanency option or to implement other placement requirements that give preference to relatives.  The Department shall place the newborn with prospective adoptive parents as soon as practicable.  If the Department has information regarding the newborn’s medical history, date of birth, or age, the adoptive parents must be allowed access it.[xix]

A newborn surrendered according to the Act is presumed to have been born in Montana.  However, presumption may not be made if the actual place of birth is disclosed by the newborn’s parent.[xx]  A Montana birth certificate may be issued based on the presumption of birth in Montana.  The birth certificate must provide a date of birth based on the newborn’s actual date of birth, or on the date of birth determined by the physician. [xxi]

Any person who claims to be the biological parent of a newborn, may file an action with the court for custody within 60 days of the date of surrender of the newborn. [xxii]

The court has jurisdiction over a newborn that is surrendered to an emergency services provider, and may appoint a guardian ad litem to represent a newborn in proceedings relating to the relinquishment. [xxiii]  The court shall determine custody of the newborn based on the newborn’s best interest with the goal of achieving permanent placement for the newborn at the earliest possible date. [xxiv]  Based on the court’s finding of the newborn’s best interest  the court may issue an order:

a) granting legal or physical custody, or both, of the newborn to the parent and either retaining or relinquishing jurisdiction; or

b) denying custody of the newborn to the parent and referring the matter to the Department or county attorney for further proceedings. [xxv]

A parent who surrenders a newborn under the Act and who does not file a timely custody action is presumed to have knowingly waived his/her parental rights with regard to the newborn.  If a custody action is not filed or if the parent is denied custody of the newborn, the Department shall file a petition requesting appropriate relief with the goal of achieving permanent placement for the newborn at the earliest possible date.[xxvi]

Any hospital, fire department, or law enforcement agency, and its agents and employees are immune in a civil action for damages for an act or omission in accepting or transferring a newborn.  However, they are not immune from actions due to gross negligence or willful misconduct of the provider.[xxvii]

A criminal investigation relating to abandonment may not be initiated solely on the basis of a newborn being surrendered according to the Act.  However, investigation may be initiated in cases of intentional infliction of injury to the abandoned infant. [xxviii]

[i] Mont. Code Anno., § 40-6-401

[ii] Mont. Code Anno., § 40-6-405(1)

[iii] Mont. Code Anno., § 40-6-405(1)

[iv] Mont. Code Anno., § 40-6-405(2)

[v] Mont. Code Anno., § 40-6-405(2)

[vi] Mont. Code Anno., § 40-6-405(2)

[vii] Mont. Code Anno., § 40-6-405(2)

[viii] Mont. Code Anno., § 40-6-405(3)

[ix] Mont. Code Anno., § 40-6-405(3)

[x] Mont. Code Anno., § 40-6-405(3)

[xi] Mont. Code Anno., § 40-6-405(3)

[xii] Mont. Code Anno., § 40-6-406(1)

[xiii] Mont. Code Anno., § 40-6-406(2)

[xiv] Mont. Code Anno., § 40-6-406(2)

[xv] Mont. Code Anno., § 40-6-406(3)

[xvi] Mont. Code Anno., § 40-6-416

[xvii] Mont. Code Anno., § 40-6-407(1)

[xviii] Mont. Code Anno., § 40-6-407(1)

[xix] Mont. Code Anno., § 40-6-407(2)

[xx] Mont. Code Anno., § 40-6-407(3)

[xxi] Mont. Code Anno., § 40-6-407(4)

[xxii] Mont. Code Anno., § 40-6-411

[xxiii] Mont. Code Anno., § 40-6-403(1)

[xxiv] Mont. Code Anno., § 40-6-412

[xxv] Mont. Code Anno., § 40-6-413

[xxvi] Mont. Code Anno., § 40-6-414

[xxvii] Mont. Code Anno., § 40-6-404, § 40-6-403(3)

[xxviii] Mont. Code Anno., § 40-6-417

Inside Montana Safe Haven Laws