Representative Mercer wins court ruling, then proposes narrower access rules and revised abuse definitions in child‑welfare bill

Representative Caleb Mercer opened a hearing about two related proposals after a recent court fight over legislative access to Department of Public Health and Human Services (DPHHS) child‑welfare files. Mercer told the committee he obtained a district-court mandatory injunction and subsequent favorable language in a Montana Supreme Court decision that, in his view, affirmed the legislature’s right to review the department’s records at the committee’s request.

The bill has two principal parts. First, it codifies — with procedural safeguards — a legislator’s right to review "case records" in child-abuse and neglect matters when requested by a parent or guardian. The bill forbids disclosure of records that the department demonstrably designates as attorney‑client privileged, and it provides a judicial process for a legislator to ask a state district court to review a privilege designation filed under seal. Mercer told the committee he agreed in the earlier litigation to limit any disclosure of documents labeled attorney‑client privileged while the court reviewed the matter; the proposed statutory language would preserve the privilege pending court resolution and give the court explicit authority to resolve privilege disputes.

Second, Mercer proposed revisions to the statutory definitions used in Montana’s child‑abuse and neglect code. The draft language would add a specific exclusion: "abused or neglected" would not include a child who has been referred to or raised "in a manner consistent with the child's biological sex, including in the making of related mental health or medical decisions." Mercer said the language takes a model similar to a 2023 change adopted in Virginia and would prevent DPHHS from relying on abuse‑and‑neglect statutes to remove or otherwise penalize parents who discipline or raise children consistent with their biological sex.

Supporters included advocates who urged clearer legislative oversight and Native American advocates who said they need better access to data on child‑welfare cases affecting tribal communities. Opponents included civil‑rights and LGBTQ advocates, medical professionals and child‑welfare advocates who warned the proposed statutory exclusions could prevent the department from intervening in situations of documented harm; critics said the bill would create a statutory loophole that could be asserted by caregivers who are inflicting psychological or physical harm on a child. Opponents cited research showing higher rates of suicide attempts among transgender youth exposed to stigma and said the state should be able to act where a child has been harmed.

Why it matters: The bill combines two consequential policy areas — legislator access to confidential case records and the statutory definitions that trigger state intervention in family life — and has immediate implications for child‑welfare investigations, tribal communities and medical decision‑making for minors.

Ending: Mercer said the proposal is limited and cautioned that the privilege carveouts and court‑review process are designed to protect attorney‑client confidentiality while ensuring legislative oversight. The committee heard extensive testimony and asked for follow‑up materials; no committee vote was recorded during the session.