In an effort to keep some child abuse and neglect cases out of the court system and to resolve them more satisfactorily, the 2015 Montana Legislature created the Child Abuse and Court Diversion Pilot Project (called the Diversion Project). Despite good intentions, there were unforeseen obstacles in the project’s implementation, which led to changes in the law during the 2017 Legislature.
In designated pilot court districts, the Diversion Project originally allowed for parents and guardians whose children had been removed on an emergency basis to voluntarily work with the Department of Public Health and Human Services (the Department) for a period of up to six months. If successful in safely returning children home, the parties would not have to go to court. Thus, cases could be diverted from court on a voluntary basis. This project provided a way for parents, guardians, and CPS workers to focus on the important tasks needed for children to safely return home during that six-month period without having to focus unnecessarily on court appearances, preparation, and resources.
The 2015 law required there be an emergency removal of the children and that the parents or guardians had to be advised in writing of their rights, and then have the parents and CPS worker sign an agreement to participate in the Diversion Project within two working days of the emergency removal. Unfortunately, the days immediately following an emergency removal are very stressful and hectic for both CPS workers and parents. That short and difficult time in which to review the written materials and assess whether a case was a good fit for the Diversion Project proved to be a serious impediment to getting cases referred to it.
To make the Diversion Project more accessible to the Department and to families, the 2017 Legislature changed the law. The biggest change was to make the Diversion Project available to parents and guardians who have voluntarily agreed to place their children outside their home through a Voluntary Protective Services Agreement.
Voluntary Protection Services Agreements (VSPA) provide for the voluntary placement of children outside the home for a period of up to 30 days without having to file a District Court case. Even when things are going well with a VPSA, 30 days is often not enough time to make the kind of changes in which children can safely return home. Before 2017, Court cases were therefore being filed after a VPSA, even when parents or guardians were making significant progress and cooperating with the CPS workers to make improvements in their family life. More time was needed to alleviate the safety concerns before the children could return home.
The revised 2017 law allows the Diversion Project to immediately follow a VPSA. Emergency removal is still allowed, but no longer required for the Diversion Project. If a VPSA is going well (the parents or guardians are making progress and cooperating with the Department), the matter is no longer required to go to Court if the children cannot be safely returned home within 30 days. Instead, the parties can voluntarily agree to continue working together for several more months with the children out of the home for up to a total of 180 days. Thus, participation in the Diversion Project is allowed, but no longer required within two working days of an emergency removal. Instead, there is now more time to be thoughtful about the process by initially entering into a VPSA.
If the children cannot safely be returned during the 30 days of a VPSA, the parties can discuss the Diversion Project as an option and alternative to District Court. The parents or guardians can take some time to review the Diversion Project’s written materials and consider their options. CPS workers have time to determine whether parents are addressing their safety concerns and cooperating with the Department during the VPSA. Thus, everyone involved has a chance to consider where the case will go after 30 days of a VPSA. If, at the end of a VPSA where the children are voluntarily placed outside the home, the parties all believe the Diversion Project is the best option, they can choose that option by signing a Participation Agreement within two days of the termination of the VPSA. Signing the agreement gives the parties up to 32 days from the voluntary out-of-home placement to agree to participate in the Diversion Project.
In addition to giving the parties additional time to consider the option of the Diversion Project in the case of a VPSA with an out-of-home placement, the 2017 legislative changes provide an option for the Diversion Project following a VPSA even when the children remain in the home.
If there is a VPSA in place with the children remaining at home, the parties could agree to voluntarily enter the Diversion Project by reviewing the written materials and signing the Participation Agreement. The Department and family could then benefit from a voluntarily negotiated diversion plan for up to 180 days, designed to keep the children safely in the home. In this case, there would be a more formal structure for voluntarily working with the Department to avoid the removal of children and/or the filing of cases in District Court.
The Diversion Project is voluntary. To participate, parents, guardians, and the Department must all agree to do so. At any time, any party can end participation, simply by notifying the other parties. As soon as the other parties are notified, participation in the Diversion Project and any agreements that were reached are terminated. If children are out of the home, the Department will take steps to file a formal case in District Court. If children are in the home, the Department will determine whether a court case is necessary at that time.
If the case ends up in Court, the parties will have the right to be represented by an attorney. Parents or guardians could hire an attorney or, if eligible, an attorney would be appointed for them. The parties would have the right to contest hearings, file motions, and be heard by the Court. There are no jury trials in child abuse and neglect cases in Montana; District Court judges oversee the process in Court.
The changes the 2017 state Legislature made to the Diversion Project should allow more children and families to benefit from a voluntary plan designed to return children safely home and/or to keep them at home without having to focus time and unnecessary resources on the Court system. By making the Diversion Project more accessible, it is hoped that more families and CPS workers will use it, benefitting all of the parties involved.