Glasgow couple halts court case centering on DPHHS taking their child as legislation moves forward

Yahoo

18-03-2025

Photo illustration by Getty Images.
An attorney who is fighting for a Glasgow couple's access to information surrounding their child being removed from a home in 2023 has withdrawn his latest filing, saying that an end-run by a current lawmaker could help cover up the Gianforte administration's role in seizing their child.
However, that Republican lawmaker told the Daily Montanan he is simply taking what the Montana Supreme Court has said in ruling and codifying it in law so that no other legislator will have to take the state to the highest court in Montana just to get access to documents.
Bozeman attorney Matthew Monforton withdrew a filing he made last week in a state court seeking records the Montana Department of Public Health and Human Services has surrounding social workers removing a teenager from Todd and Krista Kolstad's home because of concerns of suicidal threats. Authorities placed the teenager in a hospital for psychiatric care, trying to locate a longer-term treatment solution.
When a bed became available in Wyoming, the Kolstads objected, believing that another state would begin treatment for gender dysphoria. The Kolstads' child identified as transgender, something they've said their religion sees as a sin. The Kolstads, instead, wanted their child to go to a Montana institution because lawmakers halted gender-affirming treatment without parental permission in the Treasure State.
Though the fight over the care of the child ended when she was placed with her biological mother in Canada, the legal fight centering on parental rights and why the Gianforte administration had fought to remove the child remains ongoing.
The Kolstads have gotten a sympathetic response from some conservative lawmakers who have pledged to use their access to the records, under a privilege in Montana law, to review the case. That includes Rep. Bill Mercer, R-Billings, who took the case to the Montana Supreme Court, which later ordered the entire file that the DPHHS had be turned over to him for inspection.
When the Kolstads used the same part of the law to request the same records, officials with the DPHHS turned over more than 2,400 pages of documents, but created a six-page list, often referred to as a 'privilege log,' of documents the state was withholding from the couple based on attorney-client privilege. The Kolstads, through Monforton, argued in court filings that state law doesn't allow DPHHS to withhold the documents from them while releasing them to Mercer.
But as the case has continued to wind its way through the courts, Mercer, a member of the Montana House of Representatives, has introduced House Bill 690, which would change state law so that parents would not be entitled to those documents, but lawmakers could still see them. The bill has already cleared the House, and is still alive in the Montana Senate, where it will likely be heard during the second half of the Legislature. Monforton said that because of the proposed legal change and because the bill has already been successful, he was forced to remove his latest legal challenge, which has allowed the Gianforte administration to withhold records concerning the teenager's removal.
'It's clear that the records DPHHS is seeking to shield will implicate them in wrongdoing,' Monforton said. 'It stinks of corruption.'
However, Mercer said the purpose of HB 690 is to clarify in law that parents in Montana cannot be punished for disregarding or disagreeing with a child's gender identity. Furthermore, the changes to accessing documents shouldn't be surprising since the Montana Supreme Court signaled that even state agencies, like the DPHHS, have a right to withhold documents that are attorney-client privilege, a gray area in the law now, which he said could cause other similar cases to be entangled in lengthy court battles. Mercer told the Daily Montanan that he inserted new language into the bill to clarify that. He said that even if parents are denied some documents the state considers attorney-client privilege, they can still challenge that decision in court.
He agreed there may be cases where lawmakers have more access than parents to the files, but not much. He said that in order for a lawmaker to understand whether the state is truly following the intent of the law, they need all the documents, including attorneys' advice, to understand the decisions. But, Mercer also said those same sensitive documents could violate attorney-client privilege, which the courts often treat as sacrosanct, which is why he added language that makes disclosing the contents of those documents illegal.
Monforton also questioned why the Republican-led Legislature and the Gianforte administration would allow a lawmaker more access and privilege than the parents of a child, especially since the GOP continues to emphasize parental rights.
As Montana law currently stands, it allows for a variety of people to gain access to a Child and Family Services file, through the proper written steps. That includes file notes, interviews and other documents, and the law is silent about whether notes from attorneys should be included in the case files or can be withheld under the legal doctrine of 'attorney-client privilege.' Mercer's law would add a provision that would allow lawmakers, including members of Congress, to evaluate the files, including documents the department deems attorney-client privilege, access that House Bill 690 doesn't give to anyone else, including parents.
'This is the same party that supposedly values parental rights, and yet the Republican governor and Republican legislators are closing files to parents regarding their children,' Monforton said.
Mercer said the change in the law reflects the different roles of parents and lawmakers. He said the parents need to know the details of their child's case, and that includes every document except those subject to attorney-client privilege. A lawmaker's role is to ensure the state is complying with the laws the Legislature passes, but that often requires inspecting privately and confidentially whether the state is acting based on an attorney's counsel.
'I don't think the courts would say that there's never any attorney-client privilege,' Mercer said. 'And this means if there's going to be a skirmish, it's going to be something over whether a document is privileged. It narrows the scope of what can be challenged.'
Mercer also fought for the documents related to the Kolstads' case, taking the challenge to the Montana Supreme Court, which agreed that he could also see attorney-client documents, but only after agreeing to additional non-disclosure agreements. The state's Supreme Court did not directly tackle the matter in its decision, but noted in at least three different parts of an 18-page opinion that even though the current law is silent about documents the DPHHS has that it considers 'attorney-client' privilege doesn't mean the principle is moot. Mercer said since the unanimous five-judge decision, written by Justice Jim Rice, acknowledged that DPHHS had a legitimate concern, he was addressing those in the bill.
Monforton also told the Daily Montanan that the Kolstads plan to testify at the Legislature when the bill gets to a hearing in the Montana Senate so that they can hopefully amend the law to give parents at least as many right as lawmakers.
In addition to making changes to what information can be shared with parents and lawmakers, House Bill 690, sponsored by Rep. Bill Mercer, R-Billings, would curtail when the state could intervene in certain child abuse and neglect cases. HB 690 would no longer allow agents from the Montana Department of Public Health and Human Services to remove a child who is struggling with gender identity issues from a home for those reasons. In other words, disagreeing about gender identity would not be considered abuse or neglect, if HB 690 passes. HB 690 changes the definition of youth-in-need of care to specifically exclude cases where gender identity is part of the case. 'The term does 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,' the proposed legislation now reads. And, HB 690 would now amend the law to read that serious emotional or physical damage to the child does not occur when a parent cannot control a youth's behavior or 'referring to and raising the child in a manner consistent with the child's biological sex, including in the making of related mental health or medical decisions.' Physical neglect and psychological harm and abuse would also not be applicable if parents wanted to raise the child 'in a manner consistent with the child's biological sex.' The measure passed the House on a party-line vote, 57-to-42. Before that it, the bill passed the House Judiciary Committee along a similar party-line vote, 12-to-8.
In addition to making changes to what information can be shared with parents and lawmakers, House Bill 690, sponsored by Rep. Bill Mercer, R-Billings, would curtail when the state could intervene in certain child abuse and neglect cases.
HB 690 would no longer allow agents from the Montana Department of Public Health and Human Services to remove a child who is struggling with gender identity issues from a home for those reasons. In other words, disagreeing about gender identity would not be considered abuse or neglect, if HB 690 passes. HB 690 changes the definition of youth-in-need of care to specifically exclude cases where gender identity is part of the case.
'The term does 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,' the proposed legislation now reads.
And, HB 690 would now amend the law to read that serious emotional or physical damage to the child does not occur when a parent cannot control a youth's behavior or 'referring to and raising the child in a manner consistent with the child's biological sex, including in the making of related mental health or medical decisions.'
Physical neglect and psychological harm and abuse would also not be applicable if parents wanted to raise the child 'in a manner consistent with the child's biological sex.'
The measure passed the House on a party-line vote, 57-to-42. Before that it, the bill passed the House Judiciary Committee along a similar party-line vote, 12-to-8.