How does a DN case get to court?

When the Montana Child and Family Service Division, or CFSD, receives a report of suspected child abuse, neglect or abandonment, they must investigate. If CFSD determines a child is not safe at home, a child protection specialist, or CPS working for CFSD can remove the child from their home. MCA 41-3-301 (1). The Child and Family Service Division must make "active efforts" to avoid the removal of an Indian child from their home. 25 U.S.C. § 1912(d); MCA 41-3-1319(1). They also need to determine that removing an Indian child is necessary to prevent "imminent physical damage or harm" to the child. 25 C.F.R. § 23.113; MCA 41-3-1325(1).

The parents, Indian custodians or guardians are given a written notice of removal at the time of the child's removal, if available, or as soon after as possible. MCA 41-3-301(1)(b). The notice of removal should also be provided to the Office of the State Public Defender, or OPD, within 24 hours of the removal. MCA 41-3-301(1)(c).

The CPS then drafts an affidavit regarding the circumstances of the removal. An affidavit is a document sworn to be truthful and accurate. The affidavit should be given to the state's attorney, a county attorney or an assistant attorney general, OPD, and the parents or guardians, if possible, within two working days of a child's removal. MCA 41-3-301(6). If the state's attorney believes there are sufficient safety concerns based on a review of the affidavit and a conversation with the CPS, they will file a petition with the affidavit in the appropriate Montana District Court within five working days of a child's removal. MCA 41-3-301(6). These legal actions begin the court process in a DN case.

The petition and affidavit inform the court and parties about why a child was removed. The initial petition may seek emergency protective services, temporary legal custody and temporary investigative authority. In very rare cases of extreme conduct or severe abuse by parents, Indian custodians, or guardians, the state can request the court allow the case to proceed to termination without offering treatment or services. MCA 41-3-422(1)(a).

If possible, parents, Indian custodians and guardians are personally served with a copy of the petition, affidavit and a summons to appear in court. MCA 41-3-422(6); MCA 41-3-1311(2)(b).

They may also be served by certified mail. Tribes must be served by certified mail. 25 U.S.C. § 1912(a), 25 C.F.R. §23.11(a), MCA 41-3-1311(2)(a). It is best practice for the parents, Indian custodians, guardians, and the Tribe to also be contacted by phone and email as soon as possible.

The judge reviews the petition and affidavit and decides whether sufficient grounds exist to grant emergency protective services. The court determines whether the child's removal was appropriate or if they should be returned home.

Watch and Reflect

Watch the following video interview with Sheila Not Afraid as Indian culture and the foster care system are discussed in relation to ICWA. As you watch, think about why it would be important for Indian children who are removed from their homes to be placed with extended family or Tribal members.