Mont. Code Ann. » TITLE 41. MINORS · CHAPTER 3. CHILD ABUSE AND NEGLECT · Part 4. Abuse or Neglect Proceedings
Montana Code Annotated

Mont. Code Ann. § 41-3-438 (2026)

Disposition -- Hearing -- Order

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 41
  3. CHAPTER 3
  4. Part 4
  5. 41-3-438 Disposition -- hearing -- order

TITLE 41. MINORS

CHAPTER 3. CHILD ABUSE AND NEGLECT

Part 4. Abuse or Neglect Proceedings

Disposition -- Hearing -- Order

41-3-438. Disposition -- hearing -- order. (1) Unless a petition is dismissed or unless otherwise stipulated by the parties pursuant to 41-3-434 or ordered by the court, a dispositional hearing must be held on every petition filed under this chapter within 20 days after an adjudicatory order has been entered under 41-3-437. Exceptions to the time limit may be allowed only in cases involving newly discovered evidence, unavoidable delays, stipulation by the parties pursuant to 41-3-434, and unforeseen personal emergencies.

(2) (a) A dispositional order must be made after a dispositional hearing that is separate from the adjudicatory hearing under 41-3-437. The hearing process must be scheduled and structured so that dispositional issues are specifically addressed apart from adjudicatory issues. Hearsay evidence is admissible at the dispositional hearing.

(b) A dispositional hearing may follow an adjudicatory hearing in a bifurcated manner immediately after the adjudicatory phase of the proceedings if:

(i) all required reports are available and have been received by all parties or their attorneys at least 5 working days in advance of the hearing; and

(ii) the judge has an opportunity to review the reports after the adjudication.

(c) The dispositional hearing may be held prior to the entry of written findings required by 41-3-437.

(3) If a child is found to be a youth in need of care under 41-3-437, the court may enter its judgment, making any of the following dispositions to protect the welfare of the child:

(a) permit the child to remain with the child's custodial parent or guardian, subject to those conditions and limitations the court may prescribe;

(b) order the department to evaluate the noncustodial parent as a possible caretaker;

(c) order the temporary placement of the child with the noncustodial parent, superseding any existing custodial order, and keep the proceeding open pending completion by the custodial parent of any treatment plan ordered pursuant to 41-3-443;

(d) order the placement of the child with the noncustodial parent, superseding any existing custodial order, and dismiss the proceeding with no further obligation on the part of the department to provide services to the parent with whom the child is placed or to work toward reunification of the child with the parent or guardian from whom the child was removed in the initial proceeding;

(e) grant an order of limited emancipation to a child who is 16 years of age or older, as provided in 41-1-503;

(f) transfer temporary legal custody to any of the following:

(i) the department;

(ii) a licensed child-placing agency that is willing and able to assume responsibility for the education, care, and maintenance of the child and that is licensed or otherwise authorized by law to receive and provide care of the child; or

(iii) a nonparent relative or other individual who has been evaluated and recommended by the department or a licensed child-placing agency designated by the court and who is found by the court to be qualified to receive and care for the child;

(g) order a party to the action to do what is necessary to give effect to the final disposition, including undertaking medical and psychological evaluations, treatment, and counseling that does not require an expenditure of money by the department unless the department consents and informs the court that resources are available for payment. The department is the payor of last resort after all family, insurance, and other resources have been examined.

(h) order further care and treatment as the court considers in the best interests of the child that does not require an expenditure of money by the department unless the department consents and informs the court that resources are available for the proposed care and treatment. The department is the payor of last resort after all family, insurance, and other resources have been examined pursuant to 41-3-446.

(4) If a member of the child's extended family, including an adult sibling, grandparent, great-grandparent, aunt, or uncle, has requested that custody be awarded to that family member, the department shall investigate and determine if awarding custody to the family member is in the best interests of the child. The department shall provide the reasons for any denial to the court. If the court accepts the department's custody recommendation, the court shall inform any denied family member of the reasons for the denial to the extent that confidentiality laws allow. The court shall include the reasons for denial in the court order if the family member who is denied temporary legal custody requests it to be included.

(5) If reasonable efforts have been made to prevent removal of a child from the home or to return a child to the child's home but continuation of the efforts is determined by the court to be inconsistent with permanency for the child, the department shall make reasonable efforts to place the child in a timely manner in accordance with a permanent plan and to complete whatever steps are necessary to finalize the permanent placement of the child.

(6) If the court finds that reasonable efforts are not necessary pursuant to 41-3-442(1) or subsection (5) of this section, a permanency hearing must be held within 30 days of that determination and reasonable efforts must be made to place the child in a timely manner in accordance with the permanency plan and to complete whatever steps are necessary to finalize the permanent placement of the child.

(7) If the time limitations of this section are not met, the court shall review the reasons for the failure and order an appropriate remedy that considers the best interests of the child.

History: En. 10-1314 by Sec. 10, Ch. 328, L. 1974; R.C.M. 1947, 10-1314; amd. Sec. 7, Ch. 567, L. 1979; amd. Sec. 170, Ch. 575, L. 1981; amd. Sec. 3, Ch. 564, L. 1983; amd. Sec. 6, Ch. 659, L. 1985; amd. Sec. 11, Ch. 609, L. 1987; amd. Sec. 2, Ch. 696, L. 1991; amd. Sec. 2, Ch. 362, L. 1993; amd. Sec. 15, Ch. 458, L. 1995; amd. Sec. 170, Ch. 546, L. 1995; amd. Sec. 9, Ch. 516, L. 1997; amd. Sec. 2, Ch. 428, L. 1999; amd. Sec. 11, Ch. 566, L. 1999; amd. Sec. 4, Ch. 194, L. 2001; amd. Secs. 10, 18(3), Ch. 281, L. 2001; amd. Sec. 11, Ch. 311, L. 2001; Sec. 41-3-406, MCA 1999; redes. 41-3-438 by Sec. 17(2), Ch. 281, L. 2001; amd. Sec. 12, Ch. 504, L. 2003; amd. Sec. 1, Ch. 178, L. 2005; amd. Sec. 5, Ch. 382, L. 2005; amd. Sec. 1, Ch. 73, L. 2007; amd. Sec. 6, Ch. 179, L. 2009; amd. Sec. 5, Ch. 210, L. 2009; amd. Sec. 5, Ch. 674, L. 2023.

Notes of Decisions
Cited in 39 cases (5 in the last 5 years), 2002–2026 · leading case: In re M.J., 2013 MT 60 (Mont. 2013).
Sort: Relevance Newest Treatment
In re M.J., 2013 MT 60 (Mont. 2013). · cites it 11× “Those options are set forth in § 41-3-438, MCA. The provision invoked in the instant proceedings was § 41-3-438(3)(d), MCA.”
In re E.Y.R., 446 P.3d 1117 (Mont. 2019). · cites it 8× “Counsel did not request a placement hearing to require the Department to meet its burden to present documented evidence that Child should not be placed with Father because of safety concerns consistent with § 41-3-438, MCA, In re S.S. , and Department policy 304-1.”
In re A.C., 2004 MT 320 (Mont. 2004). · cites it 9× “’s home was a safe placement for the children, the State contends that the Department did all that was necessary “for the district court to place the children under Mont. Code Ann. § 41-3-438 (3)(b).” We agree.”
In re B.B., 2006 MT 66 (Mont. 2006). · cites it 26× “, by stipulation, relieve the District Court of the need to hold a separate dispositional hearing pursuant to § 41-3-438, MCA? ¶4 (2) Does the District Court’s failure to hold a permanency plan hearing pursuant to § 41-3-445, MCA, require reversal of the order terminating J.”
In re G.S., 2002 MT 245 (Mont. 2002). · cites it 4× “Whether § 41-3-438, MCA (2001), is constitutional as applied in this matter.”
In re S.S., 2012 MT 78 (Mont. 2012). · cites it 19× “Section 41-3-438(1), MCA. This hearing must be separate from the adjudicatory hearing, and "must be scheduled and structured so that dispositional issues are specifically addressed apart from adjudicatory issues.”
In re K.B., 2016 MT 73 (Mont. 2016). · cites it 3× “” Section 41-3-438(3)(b), MCA. The court may order a treatment plan for the child’s parent if “the court has made an adjudication under 41-3-437 that the child is a youth in need of care.”
In re A.N.W., 2006 MT 42 (Mont. 2006). · cites it 4× “asserts that the District Court’s failure to bifurcate the youth in need of care adjudication and the TLC disposition violated § 41-3-438(2), MCA. The Department does not dispute that District Court failed to bifurcate the proceedings, but maintains that the proceedings…”
In re M.A.L., 2006 MT 299 (Mont. 2006). · cites it 3× “Section 41-3-438(3), MCA (2003). A youth in need of care determination must be based on a finding that the child is abused, abandoned, or neglected.”
In re A.D.B., 2013 MT 167 (Mont. 2013). · cites it 2× “¶86 In those circumstances, the court has the responsibility to determine whether the children are youths in need of care, § 41-3-437, MCA, and ultimately decide an appropriate disposition for that child, § 41-3-438, MCA. As parties, the parents, whose parental rights are being…”
In re J.H., 2016 MT 35 (Mont. 2016). · cites it 9× “Section 41-3-438(3)(d), MCA. ¶19 The Department argues its efforts were reasonable because as long as the case remained open it was required to follow the ICPC, which precluded placement with Father until Texas approved the placement.”
In re S.C., 2005 MT 241 (Mont. 2005). · cites it 4× “¶25 Did the District Court err in failing to bifurcate the adjudicatory and dispositional hearings? ¶26 Mother and Father, in their respective briefs, argue that the District Court violated § 41-3-438, MCA, which requires the adjudicatory and dispositional stages be separated,…”
Show all 39 citing cases →
— Mont. Code Ann. § 41-3-438(1) — 10 cases
In re B.B., 2006 MT 66 (Mont. 2006). “, by stipulation, relieve the District Court of the need to hold a separate dispositional hearing pursuant to § 41-3-438, MCA? ¶4 (2) Does the District Court’s failure to hold a permanency plan hearing pursuant to § 41-3-445, MCA, require reversal of the order terminating J.”
In re A.H., 2015 MT 75 (Mont. 2015).
In re S.S., 2012 MT 78 (Mont. 2012). “Section 41-3-438(1), MCA. This hearing must be separate from the adjudicatory hearing, and "must be scheduled and structured so that dispositional issues are specifically addressed apart from adjudicatory issues.”
In re B.W.S., 2014 MT 198 (Mont. 2014).
Matter of T.H., 2010 MT 176N (Mont. 2010).
— Mont. Code Ann. § 41-3-438(2) — 6 cases
In re S.S., 2012 MT 78 (Mont. 2012). “Section 41-3-438(1), MCA. This hearing must be separate from the adjudicatory hearing, and "must be scheduled and structured so that dispositional issues are specifically addressed apart from adjudicatory issues.”
In re A.N.W., 2006 MT 42 (Mont. 2006). “asserts that the District Court’s failure to bifurcate the youth in need of care adjudication and the TLC disposition violated § 41-3-438(2), MCA. The Department does not dispute that District Court failed to bifurcate the proceedings, but maintains that the proceedings…”
In re B.B., 2006 MT 66 (Mont. 2006). “, by stipulation, relieve the District Court of the need to hold a separate dispositional hearing pursuant to § 41-3-438, MCA? ¶4 (2) Does the District Court’s failure to hold a permanency plan hearing pursuant to § 41-3-445, MCA, require reversal of the order terminating J.”
In Re Ss, 2012 MT 78 (Mont. 2012).
In Re Bb, 2006 MT 66 (Mont. 2006).
— Mont. Code Ann. § 41-3-438(2)(a) — 4 cases
In re A.N.W., 2006 MT 42 (Mont. 2006). “asserts that the District Court’s failure to bifurcate the youth in need of care adjudication and the TLC disposition violated § 41-3-438(2), MCA. The Department does not dispute that District Court failed to bifurcate the proceedings, but maintains that the proceedings…”
In re S.C., 2005 MT 241 (Mont. 2005). “¶25 Did the District Court err in failing to bifurcate the adjudicatory and dispositional hearings? ¶26 Mother and Father, in their respective briefs, argue that the District Court violated § 41-3-438, MCA, which requires the adjudicatory and dispositional stages be separated,…”
In Re Sc, 2005 MT 241 (Mont. 2005).
In Re Anw, 2006 MT 42 (Mont. 2006).
— Mont. Code Ann. § 41-3-438(2)(b) — 2 cases
In re B.B., 2006 MT 66 (Mont. 2006). “, by stipulation, relieve the District Court of the need to hold a separate dispositional hearing pursuant to § 41-3-438, MCA? ¶4 (2) Does the District Court’s failure to hold a permanency plan hearing pursuant to § 41-3-445, MCA, require reversal of the order terminating J.”
In Re Bb, 2006 MT 66 (Mont. 2006).
— Mont. Code Ann. § 41-3-438(3) — 4 cases
In re M.A.L., 2006 MT 299 (Mont. 2006). “Section 41-3-438(3), MCA (2003). A youth in need of care determination must be based on a finding that the child is abused, abandoned, or neglected.”
In re A.C., 2004 MT 320 (Mont. 2004). “’s home was a safe placement for the children, the State contends that the Department did all that was necessary “for the district court to place the children under Mont. Code Ann. § 41-3-438 (3)(b).” We agree.”
In the Matter of Ac, 2004 MT 320 (Mont. 2004).
Matter of T.N., YINC, 2020 MT 307N (Mont. 2020).
— Mont. Code Ann. § 41-3-438(3)(b) — 5 cases
In re A.C., 2004 MT 320 (Mont. 2004). “’s home was a safe placement for the children, the State contends that the Department did all that was necessary “for the district court to place the children under Mont. Code Ann. § 41-3-438 (3)(b).” We agree.”
In re K.B., 2016 MT 73 (Mont. 2016). “” Section 41-3-438(3)(b), MCA. The court may order a treatment plan for the child’s parent if “the court has made an adjudication under 41-3-437 that the child is a youth in need of care.”
In re E.Y.R., 446 P.3d 1117 (Mont. 2019). “Counsel did not request a placement hearing to require the Department to meet its burden to present documented evidence that Child should not be placed with Father because of safety concerns consistent with § 41-3-438, MCA, In re S.S. , and Department policy 304-1.”
In the Matter of Ac, 2004 MT 320 (Mont. 2004).
Matter of D.H., YINC, 2022 MT 37 (Mont. 2022).
— Mont. Code Ann. § 41-3-438(3)(c) — 1 case
In re E.Y.R., 446 P.3d 1117 (Mont. 2019). “Counsel did not request a placement hearing to require the Department to meet its burden to present documented evidence that Child should not be placed with Father because of safety concerns consistent with § 41-3-438, MCA, In re S.S. , and Department policy 304-1.”
— Mont. Code Ann. § 41-3-438(3)(d) — 11 cases
In re M.J., 2013 MT 60 (Mont. 2013). “Those options are set forth in § 41-3-438, MCA. The provision invoked in the instant proceedings was § 41-3-438(3)(d), MCA.”
In re E.Y.R., 446 P.3d 1117 (Mont. 2019). “Counsel did not request a placement hearing to require the Department to meet its burden to present documented evidence that Child should not be placed with Father because of safety concerns consistent with § 41-3-438, MCA, In re S.S. , and Department policy 304-1.”
In re J.H., 2016 MT 35 (Mont. 2016). “Section 41-3-438(3)(d), MCA. ¶19 The Department argues its efforts were reasonable because as long as the case remained open it was required to follow the ICPC, which precluded placement with Father until Texas approved the placement.”
In re S.S., 2012 MT 78 (Mont. 2012). “Section 41-3-438(1), MCA. This hearing must be separate from the adjudicatory hearing, and "must be scheduled and structured so that dispositional issues are specifically addressed apart from adjudicatory issues.”
Matter of R.J.F., YINC, 2026 MT 125 (Mont. 2026).
— Mont. Code Ann. § 41-3-438(4) — 1 case
Matter of S.T., 2004 MT 266N (Mont. 2004).
— Mont. Code Ann. § 41-3-438(7) — 2 cases
In re A.H., 2015 MT 75 (Mont. 2015).
Matter of A.h L.M. J.M. Yinc, 2015 MT 75 (Mont. 2015).
— Mont. Code Ann. § 41-3-438(c) — 1 case
In re E.Y.R., 446 P.3d 1117 (Mont. 2019). “Counsel did not request a placement hearing to require the Department to meet its burden to present documented evidence that Child should not be placed with Father because of safety concerns consistent with § 41-3-438, MCA, In re S.S. , and Department policy 304-1.”
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.