Debate in Montana Senate health committee over warrant requirement for child removals centers on parental rights, child safety

Senator Daniel Emerich opened the Jan. 20 Senate Public Health Committee hearing on Senate Bill 50 by saying the bill would require a warrant to remove a child from the child's home except when there are exigent circumstances and would require the department to file an abuse-and-neglect petition within 72 hours of an emergency removal.

"Parents have a fundamental constitutional right, to, raise their children," Senator Daniel Emerich said when describing the bill's intent to add judicial oversight to removals. The sponsor emphasized that the bill preserves the ability to remove a child without a warrant if a judge would not be able to act in time to prevent imminent harm.

The hearing drew extensive testimony. Attorney Matthew Monforten, representing the Colstad family, said the family’s child was seized by CPS in August 2023 without a warrant and without probable cause and that had a warrant requirement been in place, "the Colstad family would be intact." Multiple family members and relatives gave accounts describing removal of children that they said lacked evidentiary support; Christa Kolstad described her family's experience, saying hospital staff and CPS moved her daughter through an out-of-state placement process without parental agreement and later removed the child from parental care.

Proponents included child-welfare advocates and attorneys who urged the committee to adopt warrant protections and said the change could reduce unnecessary removals and align Montana with federal constitutional standards and some other states. Janice Lorrah of the Pacific Justice Institute said, "There is no social worker exception to the constitution," and cited federal case law requiring a court order unless a child is likely to experience serious bodily harm.

Many proponents linked SB 50 to previous legislation. Testimony noted House Bill 37 from the prior session contained similar warrant language and was vetoed by the governor. Witnesses also cited federal programs and audits; one witness said Montana's removal rate exceeds national averages and referenced CAPTA and Family First Act requirements in arguing for reform.

Opponents — including the Department of Public Health and Human Services, county attorneys, behavioral health providers and child welfare organizations — urged caution or opposed SB 50 as written. Nikki Grossberg, division administrator for Child and Family Services at DPHHS, said the bill's narrow definition of exigent circumstances (limited to physical or sexual abuse) would not capture many urgent situations that child-welfare workers encounter, such as parental arrest, overdose, acute medical crises or severe neglect. Grossberg recommended working with stakeholders to draft a narrower statutory requirement that would require a court order for non-emergency removals while recognizing the range of imminent situations that may require immediate action.

County and tribal attorneys and behavioral health providers described rural and logistical constraints: judges are not always available telephonically in every jurisdiction, cell service can be unreliable in frontier areas, and staff may not be able to remain on scene indefinitely while waiting for a warrant. Several health- and child-focused organizations urged further stakeholder work — proposing a task force or using the existing DN (dependency and neglect) task force — to address process details, timetables and resources before enacting a warrant requirement.

Proponents stressed that federal constitutional law — as interpreted by circuit courts — permits warrantless seizure only where officials reasonably believe a child faces imminent, serious bodily harm and that SB 50 moves Montana law closer to that standard. Attorney Matthew Monforten told the committee the Ninth Circuit has held seizures "are excusable only when officials have reasonable cause to believe that the child is likely to experience serious bodily harm."

The bill also contains a 72-hour filing requirement for an abuse-and-neglect petition following an emergency removal; witnesses said county clerk, county attorney and public defender timelines would need to be considered when implementing such a requirement.

Committee discussion included questions about logistics: how a telephonic warrant process would be handled, who would prepare applications for judges, whether county attorneys or law enforcement would staff a warrant-liaison function, and whether the warrant approach would duplicate the existing emergency protective services (EPS) hearing process. Several participants suggested the DN task force as the proper venue to craft implementation details.

Sponsor closing: Senator Daniel Emerich asked the committee for a favorable vote, arguing the bill would protect constitutional parental rights and create accountability in the removal process.

The transcript records dozens of proponents and numerous opponents and extensive back-and-forth but does not show a formal committee vote on SB 50 in this hearing.