June 5, 2012 § Leave a comment

Back in 2007, the legislature made some sweeping changes in the adoption statute, particularly with regard to jurisdiction and venue.

The 2012 legislature has made some more changes, embodied in HB 1268, which take effect July 1, 2012. That means that if you have an adoption pending on that date, you’d better be prepared to meet its requirements. I suggest you click on the link and print yourself a copy so you can change your office forms and procedures.

Here is a summary of the changes:

  • The child (the term I will use for the person — adult or child — who is to be adopted) may not be placed in the home of or adopted by the adoptive parent(s) before a court-ordered or voluntary home study has been completed. MCA 93-17-3(6). (See comments below) 
  • The required home study must be done by a licensed adoption agency, or a licensed, experienced social worker approved by the chancery court, or by the DHS “if required by MCA 93-17-11” (See comments below). MCA 93-17-3(6).
  • For out-of-state adopting parents, the Interstate Compact for Placement of Children (MCA 43-18-1, et seq.) must first be complied with. Evidence of placement approval (forms 100A and 100B) must be placed in the permanent adoption record file. Also, a minimum of two post-placement reports conducted by a licensed placement agency must be filed with DHS Interstate Compact for Placement of Children Office. MCA 93-17-3(7), a newly added provision.
  • The Indian Child Welfare Act (ICWA) must be complied with, if applicable. If the ICWA is not applicable, the petition must state that it is not applicable, or an affidavit to that effect must be on file before finalization. MCA 93-17-3(8), a newly added provision.
  • The post-adoption reports required in MCA 93-17-205 are changed. These are forms that are required to be filed with the State Department of Health, Bureau of Vital Records. MCA 93-17-205.

Comments: It is not at all clear to me how the new language in MCA 93-17-3 regarding home studies will interface with MCA 93-17-11. The language of section -3(6) starts out in seemingly mandatory fashion, but ends with “if required by Section 93-17-11” language. MCA 93-17-11 is the code section that allows the chancellor in his or her discretion to require a home study. My best guess is that the new language in -3(6) will be interpreted to define who has authority to do the home study that may be ordered by the court in -11.

Notice the ICWA pleading requirement. You’d best add it to your forms.

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