Mont. Code Ann. » TITLE 41. MINORS · CHAPTER 3. CHILD ABUSE AND NEGLECT · Part 3. Protective Care
Montana Code Annotated

Mont. Code Ann. § 41-3-301 (2026)

Emergency Protective Services

✓ current as of May 2026
Find cases: SyfertCases citing this section MT-LEGleg.mt.gov JustiaTitle on Justia CornellLII Search CasesGoogle Scholar
  1. MCA Contents
  2. TITLE 41
  3. CHAPTER 3
  4. Part 3
  5. 41-3-301 Emergency protective services

TITLE 41. MINORS

CHAPTER 3. CHILD ABUSE AND NEGLECT

Part 3. Protective Care

Emergency Protective Services

41-3-301. Emergency protective services. (1) (a) Any child protection investigator of the department, a peace officer, or the county attorney who has reason to believe any child is in immediate or apparent danger of harm may immediately remove the child and place the child in a protective facility. After ensuring that the child is safe, the department may make a request for further assistance from the law enforcement agency or take appropriate legal action.

(b) The person or agency placing the child shall notify the parents, parent, guardian, or other person having physical or legal custody of the child of the placement at the time the placement is made or as soon after placement as possible. Notification under this subsection (1)(b) must:

(i) include the reason for removal;

(ii) include information regarding the emergency protective services hearing within 5 working days under 41-3-306, the required show cause hearing within 21 days, and the purpose of the hearings;

(iii) provide contact information for the child protection investigator, the child protection investigator's supervisor, the child reunification specialist, and the office of state public defender; and

(iv) advise the parents, parent, guardian, or other person having physical or legal custody of the child that the parents, parent, guardian, or other person:

(A) has the right to receive a copy of the affidavit as provided in subsection (6);

(B) has the right to attend and participate in the emergency protective services hearing and the show cause hearing, including providing statements to the judge;

(C) may have a support person present during any meeting with the child protection investigator concerning emergency protective services, including the emergency protective services hearing provided for in 41-3-306; and

(D) may request that the child be placed in a kinship foster home as defined in 52-2-602.

(c) A copy of the notification required under subsection (1)(b) must be provided within 24 hours to the prehearing conference facilitator provided for in 41-3-307 or another person who conducts prehearing conferences in that district and to the office of state public defender.

(2) If a child protection investigator, a peace officer, or the county attorney determines in an investigation of abuse or neglect of a child that the child is in danger because of the occurrence of partner or family member assault, as provided for in 45-5-206, or strangulation of a partner or family member, as provided for in 45-5-215, against an adult member of the household or that the child needs protection as a result of the occurrence of partner or family member assault or strangulation of a partner or family member against an adult member of the household, the department shall take appropriate steps for the protection of the child, which may include:

(a) making reasonable efforts to protect the child and prevent the removal of the child from the parent or guardian who is a victim of alleged partner or family member assault or strangulation of a partner or family member;

(b) making reasonable efforts to remove the person who allegedly committed the partner or family member assault or strangulation of a partner or family member from the child's residence if it is determined that the child or another family or household member is in danger of partner or family member assault or strangulation of a partner or family member; and

(c) providing services to help protect the child from being placed with or having unsupervised visitation with the person alleged to have committed partner or family member assault or strangulation of a partner or family member until the department determines that the alleged offender has met conditions considered necessary to protect the safety of the child.

(3) If the department determines that an adult member of the household is the victim of partner or family member assault or strangulation of a partner or family member, the department shall provide the adult victim with a referral to a domestic violence program.

(4) A child who has been removed from the child's home or any other place for the child's protection or care may not be placed in a jail.

(5) The department may locate and contact extended family members upon placement of a child in out-of-home care. The department may share information with extended family members for placement and case planning purposes.

(6) If a child is removed from the child's home by the department, a child protection investigator shall submit an affidavit regarding the circumstances of the emergency removal to the county attorney and provide a copy of the affidavit to the office of state public defender and, if possible, the parents or guardian within 2 working days of the emergency removal. An abuse and neglect petition must be filed in accordance with 41-3-422 within 5 working days, excluding weekends and holidays, of the emergency removal of a child unless arrangements acceptable to the agency for the care of the child have been made by the parents or a written prevention plan has been entered into pursuant to 41-3-302.

(7) Except as provided in the federal Indian Child Welfare Act or the Montana Indian Child Welfare Act provided for in Title 41, chapter 3, part 13, if applicable, a show cause hearing must be held within 21 days of the filing of the petition unless otherwise stipulated by the parties pursuant to 41-3-434.

(8) If the department determines that a petition for immediate protection and emergency protective services must be filed to protect the safety of the child, the child protection investigator shall interview the parents of the child to whom the petition pertains, if the parents are reasonably available, before the petition may be filed. The district court may immediately issue an order for immediate protection of the child.

(9) The department shall make the necessary arrangements for the child's well-being as are required prior to the court hearing.

History: En. 10-1309 by Sec. 5, Ch. 328, L. 1974; amd. Sec. 19, Ch. 100, L. 1977; R.C.M. 1947, 10-1309; amd. Sec. 12, Ch. 543, L. 1979; amd. Sec. 1, Ch. 659, L. 1985; amd. Sec. 41, Ch. 609, L. 1987; amd. Sec. 166, Ch. 546, L. 1995; amd. Sec. 3, Ch. 281, L. 2001; amd. Sec. 2, Ch. 398, L. 2003; amd. Sec. 6, Ch. 504, L. 2003; amd. Sec. 3, Ch. 555, L. 2003; amd. Sec. 1, Ch. 422, L. 2005; amd. Sec. 1, Ch. 212, L. 2007; amd. Sec. 1, Ch. 11, L. 2011; amd. Sec. 3, Ch. 223, L. 2011; amd. Sec. 3, Ch. 376, L. 2015; amd. Sec. 4, Ch. 394, L. 2017; amd. Sec. 5, Ch. 19, L. 2021; amd. Sec. 2, Ch. 383, L. 2021; amd. Sec. 9, Ch. 520, L. 2021; amd. Sec. 3, Ch. 529, L. 2021; amd. Sec. 1, Ch. 323, L. 2023; amd. Sec. 1, Ch. 711, L. 2023; amd. Sec. 30, Ch. 716, L. 2023; amd. Sec. 1, Ch. 57, L. 2025; amd. Sec. 1, Ch. 63, L. 2025; amd. Sec. 12, Ch. 153, L. 2025.

Notes of Decisions
Cited in 27 cases, 1979–2019 · leading case: In re L.N., 2014 MT 187 (Mont. 2014).
Sort: Relevance Newest Treatment
In re L.N., 2014 MT 187 (Mont. 2014). · cites it 45× “Section 41-3-301, MCA. Instead, it provides that the Department must file “an abuse and neglect petition” within five working days of an emergency removal.”
In re S.R., 436 P.3d 696 (Mont. 2019). · cites it 25× “10 However, ICWA does not prohibit district courts from continuing a pre-petition emergency removal and placement by the Department under § 41-3-301, MCA, pending tribal notice and determination of a child's tribal enrollment eligibility.”
In re K.C.H., 2003 MT 125 (Mont. 2003). · cites it 19× “Whether § 41-3-301, MCA, the emergency protection service statute, is constitutional? Background ¶7 In April 2000, the Department of Public Health and Human Services (Department) learned that R.”
In re F.H., 878 P.2d 890 (Mont. 1994). · cites it 19× “Did the District Court err by failing to dismiss the youth court action after DFS admitted that it failed to follow the statutory procedure of § 41-3-301, MCA (1991) — the 48-hour rule? II.”
In re T.D.H., 2015 MT 244 (Mont. 2015). · cites it 6× “” Section 41-3-301(2), MCA. ¶41 To the extent that Mother contends that the Department did not make reasonable efforts to prevent the removal of her children, the District Court noted in its November 13,2012 orders adjudicating the children as Youths in Need of Care and granting…”
In re R.J.F., 443 P.3d 387 (Mont. 2019). · cites it 2× “Pursuant to § 41-3-301(6), MCA, an abuse and neglect petition must be filed within five working days of the emergency removal of a child.”
In Re M.H. & G.H., 2006 MT 208 (Mont. 2006). · cites it 5× “returned to the father because the District Court failed to hold a timely show cause hearing? ¶15 Section 41-3-301(6), MCA, requires a show cause hearing on a petition for emergency protective services to be held within 20 days of the filing of the initial petition unless…”
In Re the Marriage of Miller, 825 P.2d 189 (Mont. 1992). · cites it 5× “On March 26, 1990, pursuant to § 41-3-301, MCA, the State of Montana, through the Department of Family Services (DFS), removed the children from Mrs.”
Brown v. Montana, 442 F. Supp. 2d 982 (D. Mont. 2006). · cites it 7× “Based on these facts, Wills decided that “there was a need for emergency protective service under Mont. Code Ann. § 41-3-301 (1),” id., that is, that Brown’s newborn baby was “in immediate or apparent danger of harm.”
Matter of FH, 878 P.2d 890 (Mont. 1994). · cites it 19× “Did the District Court err by failing to dismiss the youth court action after DFS admitted that it failed to follow the statutory procedure of § 41-3-301, MCA (1991) — the 48-hour rule? II.”
In re Declaring T. Y. K. & D. A. W. R., 598 P.2d 593 (Mont. 1979). · cites it 3× “Section 41-3-301(2), MCA, provides: “a petition shall be filed within 48 hours of emergency placement of a child .”
In Re Kch, 2003 MT 125 (Mont. 2003). · cites it 19× “Whether § 41-3-301, MCA, the emergency protection service statute, is constitutional? *790 Background ¶ 7 In April 2000, the Department of Public Health and Human Services (Department) learned that R.”
Show all 27 citing cases →
— Mont. Code Ann. § 41-3-301(1) — 5 cases
In re L.N., 2014 MT 187 (Mont. 2014). “Section 41-3-301, MCA. Instead, it provides that the Department must file “an abuse and neglect petition” within five working days of an emergency removal.”
In re S.R., 436 P.3d 696 (Mont. 2019). “10 However, ICWA does not prohibit district courts from continuing a pre-petition emergency removal and placement by the Department under § 41-3-301, MCA, pending tribal notice and determination of a child's tribal enrollment eligibility.”
Brown v. Montana, 442 F. Supp. 2d 982 (D. Mont. 2006). “Based on these facts, Wills decided that “there was a need for emergency protective service under Mont. Code Ann. § 41-3-301 (1),” id., that is, that Brown’s newborn baby was “in immediate or apparent danger of harm.”
Weber v. State, 2015 MT 161 (Mont. 2015).
In Re the Marriage of Fontenot, 2010 MT 86 (Mont. 2010).
— Mont. Code Ann. § 41-3-301(2) — 4 cases
In re Declaring T. Y. K. & D. A. W. R., 598 P.2d 593 (Mont. 1979). “Section 41-3-301(2), MCA, provides: “a petition shall be filed within 48 hours of emergency placement of a child .”
In re T.D.H., 2015 MT 244 (Mont. 2015). “” Section 41-3-301(2), MCA. ¶41 To the extent that Mother contends that the Department did not make reasonable efforts to prevent the removal of her children, the District Court noted in its November 13,2012 orders adjudicating the children as Youths in Need of Care and granting…”
Matter of J.H. J.H. & T.D.H., 2015 MT 244 (Mont. 2015).
Matter of TYK, 598 P.2d 593 (Mont. 1979).
— Mont. Code Ann. § 41-3-301(3) — 5 cases
In re F.H., 878 P.2d 890 (Mont. 1994). “Did the District Court err by failing to dismiss the youth court action after DFS admitted that it failed to follow the statutory procedure of § 41-3-301, MCA (1991) — the 48-hour rule? II.”
In re T.D.H., 2015 MT 244 (Mont. 2015). “” Section 41-3-301(2), MCA. ¶41 To the extent that Mother contends that the Department did not make reasonable efforts to prevent the removal of her children, the District Court noted in its November 13,2012 orders adjudicating the children as Youths in Need of Care and granting…”
Matter of FH, 878 P.2d 890 (Mont. 1994). “Did the District Court err by failing to dismiss the youth court action after DFS admitted that it failed to follow the statutory procedure of § 41-3-301, MCA (1991) — the 48-hour rule? II.”
Matter of J.H. J.H. & T.D.H., 2015 MT 244 (Mont. 2015).
Matter of F.H. J.K. B.K. (Mont. 1994).
— Mont. Code Ann. § 41-3-301(6) — 7 cases
In re L.N., 2014 MT 187 (Mont. 2014). “Section 41-3-301, MCA. Instead, it provides that the Department must file “an abuse and neglect petition” within five working days of an emergency removal.”
In re S.R., 436 P.3d 696 (Mont. 2019). “10 However, ICWA does not prohibit district courts from continuing a pre-petition emergency removal and placement by the Department under § 41-3-301, MCA, pending tribal notice and determination of a child's tribal enrollment eligibility.”
In re R.J.F., 443 P.3d 387 (Mont. 2019). “Pursuant to § 41-3-301(6), MCA, an abuse and neglect petition must be filed within five working days of the emergency removal of a child.”
In Re M.H. & G.H., 2006 MT 208 (Mont. 2006). “returned to the father because the District Court failed to hold a timely show cause hearing? ¶15 Section 41-3-301(6), MCA, requires a show cause hearing on a petition for emergency protective services to be held within 20 days of the filing of the initial petition unless…”
In re J.B., 2015 MT 342 (Mont. 2015).
— Mont. Code Ann. § 41-3-301(7) — 1 case
Weber v. State, 2015 MT 161 (Mont. 2015).
— Mont. Code Ann. § 41-3-301(8) — 1 case
In re L.N., 2014 MT 187 (Mont. 2014). “Section 41-3-301, MCA. Instead, it provides that the Department must file “an abuse and neglect petition” within five working days of an emergency removal.”
— Mont. Code Ann. § 41-3-301(9) — 1 case
In re L.N., 2014 MT 187 (Mont. 2014). “Section 41-3-301, MCA. Instead, it provides that the Department must file “an abuse and neglect petition” within five working days of an emergency removal.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.