HF 1251

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to child protection; providing for a
background check of an individual being considered as
a custodian; modifying requirements for adoption
consents and placement resources for children who are
in the legal custody of a social services agency;
amending Minnesota Statutes 2004, sections 259.24,
subdivisions 1, 2a, 5, 6a; 260C.201, subdivision 11;
260C.212, subdivision 4; proposing coding for new law
in Minnesota Statutes, chapter 260C.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2004, section 259.24,
subdivision 1, is amended to read:

Subdivision 1.

Exceptions.

No child shall be adopted
without the consent of the child's parents and the child's
guardian, if there be one, except in the following instances:

(a) Consent shall not be required of a parent not entitled
to notice of the proceedings.

(b) Consent shall not be required of a parent who has
abandoned the child, or of a parent who has lost custody of the
child through a divorce decree or a decree of dissolution, and
upon whom notice has been served as required by section 259.49.

(c) Consent shall not be required of a parent whose
parental rights to the child have been terminated by a juvenile
court or who has lost custody of a child through a final
commitment of the juvenile court or through a decree in a prior
adoption proceeding.

(d) If there be no parent or guardian qualified to consent
to the adoption, the consent may be given by the
commissioner. new text begin After the court accepts a parent's consent to the
adoption under section 260C.201, subdivision 11, consent by the
commissioner or commissioner's delegate is also necessary.
Agreement to the identified prospective adoptive parent by the
responsible social services agency under section 260C.201,
subdivision 11, does not constitute the required consent.
new text end

(e) The commissioner or agency having authority to place a
child for adoption pursuant to section 259.25, subdivision 1,
shall have the exclusive right to consent to the adoption of
such child. The commissioner or agency shall make every effort
to place siblings together for adoption. Notwithstanding any
rule to the contrary, the commissioner may delegate the right to
consent to the adoption or separation of siblings, if it is in
the child's best interest, to a local social services agency.

Sec. 2.

Minnesota Statutes 2004, section 259.24,
subdivision 2a, is amended to read:

Subd. 2a.

Time of consent; notice of intent to consent to
adoption.

(a) Not sooner than 72 hours after the birth of a
child and not later than 60 days after the child's placement in
a prospective adoptive home, a person whose consent is required
under this section shall execute a consent.

(b) Unless all birth parents from whom consent is required
under this section are involved in making the adoptive placement
and intend to consent to the adoption, a birth parent who
intends to execute a consent to an adoption must give notice to
the child's other birth parent of the intent to consent to the
adoption prior to or within 72 hours following the placement of
the child, if the other birth parent's consent to the adoption
is required under subdivision 1. The birth parent who receives
notice shall have 60 days after the placement of the child to
either consent or refuse to consent to the adoption. If the
birth parent who receives notice fails to take either of these
actions, that parent shall be deemed to have irrevocably
consented to the child's adoption. new text begin This paragraph does not
apply to consents executed under section 260C.201, subdivision
11.
new text end

(c) When notice is required under this subdivision, it
shall be provided to the other birth parent according to the
Rules of Civil Procedure for service of a summons and complaint.

Sec. 3.

Minnesota Statutes 2004, section 259.24,
subdivision 5, is amended to read:

Subd. 5.

Execution.

All consents to an adoption shall be
in writing, executed before two competent witnesses, and
acknowledged by the consenting party. In addition, all consents
to an adoption, except those by the commissioner, the
commissioner's agent, a licensed child-placing agency, an adult
adoptee, or the child's parent in a petition for adoption by a
stepparent, shall be executed before a representative of the
commissioner, the commissioner's agent, or a licensed
child-placing agency. All consents by a parent:

(1) shall contain notice to the parent of the substance of
subdivision 6a, providing for the right to withdraw
consent new text begin unless the parent will not have the right to withdraw
consent because consent was executed under section 260C.201,
subdivision 11 new text end ; and

(2) shall contain the following written notice in all
capital letters at least one-eighth inch high:

"This agency will submit your consent to adoption to the
court. The consent itself does not terminate your parental
rights. Parental rights to a child may be terminated only by an
adoption decree or by a court order terminating parental
rights. Unless the child is adopted or your parental rights are
terminated, you may be asked to support the child."

new text begin The notice required in clause (2) must not be given and
does not apply to consents given under section 260C.201.
new text end

Consents shall be filed in the adoption proceedings at any
time before the matter is heard provided, however, that a
consent executed and acknowledged outside of this state, either
in accordance with the law of this state or in accordance with
the law of the place where executed, is valid.

Sec. 4.

Minnesota Statutes 2004, section 259.24,
subdivision 6a, is amended to read:

Subd. 6a.

Withdrawal of consent.

new text begin Except for consents
executed under section 260C.201, subdivision 11, new text end a parent's
consent to adoption may be withdrawn for any reason within ten
working days after the consent is executed and acknowledged.
Written notification of withdrawal of consent must be received
by the agency to which the child was surrendered no later than
the tenth working day after the consent is executed and
acknowledged. On the day following the tenth working day after
execution and acknowledgment, the consent shall become
irrevocable, except upon order of a court of competent
jurisdiction after written findings that consent was obtained by
fraud. new text begin A consent to adopt executed under section 260C.201,
subdivision 11, is irrevocable upon acceptance by the court,
except upon order of the same court after written findings that
the consent was obtained by fraud. new text end In proceedings to determine
the existence of fraud, the adoptive parents and the child shall
be made parties. The proceedings shall be conducted to preserve
the confidentiality of the adoption process. There shall be no
presumption in the proceedings favoring the birth parents over
the adoptive parents.

Sec. 5.

Minnesota Statutes 2004, section 260C.201,
subdivision 11, is amended to read:

Subd. 11.

Review of court-ordered placements; permanent
placement determination.

(a) This subdivision and subdivision
11a do not apply in cases where the child is in placement due
solely to the child's developmental disability or emotional
disturbance, where legal custody has not been transferred to the
responsible social services agency, and where the court finds
compelling reasons under section 260C.007, subdivision 8, to
continue the child in foster care past the time periods
specified in this subdivision. Foster care placements of
children due solely to their disability are governed by section
260C.141, subdivision 2b. In all other cases where the child is
in foster care or in the care of a noncustodial parent under
subdivision 1, the court shall conduct a hearing to determine
the permanent status of a child not later than 12 months after
the child is placed in foster care or in the care of a
noncustodial parent.

For purposes of this subdivision, the date of the child's
placement in foster care is the earlier of the first
court-ordered placement or 60 days after the date on which the
child has been voluntarily placed in foster care by the child's
parent or guardian. For purposes of this subdivision, time
spent by a child under the protective supervision of the
responsible social services agency in the home of a noncustodial
parent pursuant to an order under subdivision 1 counts towards
the requirement of a permanency hearing under this subdivision
or subdivision 11a.

For purposes of this subdivision, 12 months is calculated
as follows:

(1) during the pendency of a petition alleging that a child
is in need of protection or services, all time periods when a
child is placed in foster care or in the home of a noncustodial
parent are cumulated;

(2) if a child has been placed in foster care within the
previous five years under one or more previous petitions, the
lengths of all prior time periods when the child was placed in
foster care within the previous five years are cumulated. If a
child under this clause has been in foster care for 12 months or
more, the court, if it is in the best interests of the child and
for compelling reasons, may extend the total time the child may
continue out of the home under the current petition up to an
additional six months before making a permanency determination.

(b) Unless the responsible social services agency
recommends return of the child to the custodial parent or
parents, not later than 30 days prior to this hearing, the
responsible social services agency shall file pleadings in
juvenile court to establish the basis for the juvenile court to
order permanent placement of the child according to paragraph
(d). Notice of the hearing and copies of the pleadings must be
provided pursuant to section 260C.152. If a termination of
parental rights petition is filed before the date required for
the permanency planning determination and there is a trial under
section 260C.163 scheduled on that petition within 90 days of
the filing of the petition, no hearing need be conducted under
this subdivision.

(c) At the conclusion of the hearing, the court shall order
the child returned to the care of the parent or guardian from
whom the child was removed or order a permanent placement in the
child's best interests. The "best interests of the child" means
all relevant factors to be considered and evaluated. Transfer
of permanent legal and physical custody, termination of parental
rights, or guardianship and legal custody to the commissioner
through a consent to adopt are preferred permanency options for
a child who cannot return home.

(d) If the child is not returned to the home, the court
must order one of the following dispositions:

(1) permanent legal and physical custody to a relative in
the best interests of the child according to the following
conditions:

(i) an order for transfer of permanent legal and physical
custody to a relative shall only be made after the court has
reviewed the suitability of the prospective legal and physical
custodian;

(ii) in transferring permanent legal and physical custody
to a relative, the juvenile court shall follow the standards
applicable under this chapter and chapter 260, and the
procedures set out in the juvenile court rules;

(iii) an order establishing permanent legal and physical
custody under this subdivision must be filed with the family
court;

(iv) a transfer of legal and physical custody includes
responsibility for the protection, education, care, and control
of the child and decision making on behalf of the child;

(v) the social services agency may bring a petition or
motion naming a fit and willing relative as a proposed permanent
legal and physical custodian. The commissioner of human
services shall annually prepare for counties information that
must be given to proposed custodians about their legal rights
and obligations as custodians together with information on
financial and medical benefits for which the child is eligible;
and

(vi) the juvenile court may maintain jurisdiction over the
responsible social services agency, the parents or guardian of
the child, the child, and the permanent legal and physical
custodian for purposes of ensuring appropriate services are
delivered to the child and permanent legal custodian or for the
purpose of ensuring conditions ordered by the court related to
the care and custody of the child are met;

(2) termination of parental rights according to the
following conditions:

(i) unless the social services agency has already filed a
petition for termination of parental rights under section
260C.307, the court may order such a petition filed and all the
requirements of sections 260C.301 to 260C.328 remain applicable;
and

(ii) an adoption completed subsequent to a determination
under this subdivision may include an agreement for
communication or contact under section 259.58;

(3) long-term foster care according to the following
conditions:

(i) the court may order a child into long-term foster care
only if it finds compelling reasons that neither an award of
permanent legal and physical custody to a relative, nor
termination of parental rights is in the child's best interests;
and

(ii) further, the court may only order long-term foster
care for the child under this section if it finds the following:

(A) the child has reached age 12 and reasonable efforts by
the responsible social services agency have failed to locate an
adoptive family for the child; or

(B) the child is a sibling of a child described in subitem
(A) and the siblings have a significant positive relationship
and are ordered into the same long-term foster care home;

(4) foster care for a specified period of time according to
the following conditions:

(i) foster care for a specified period of time may be
ordered only if:

(A) the sole basis for an adjudication that the child is in
need of protection or services is the child's behavior;

(B) the court finds that foster care for a specified period
of time is in the best interests of the child; and

(C) the court finds compelling reasons that neither an
award of permanent legal and physical custody to a relative, nor
termination of parental rights is in the child's best interests;

(ii) the order does not specify that the child continue in
foster care for any period exceeding one year; or

(5) guardianship and legal custody to the commissioner of
human services under the following procedures and conditions:

(i) there is an identified prospective adoptive home deleted text begin that
has agreed to adopt the child deleted text end new text begin agreed to by the responsible
social services agency having legal custody of the child
pursuant to court order under this section new text end and the court accepts
the parent's voluntary consent to adopt under section 259.24;

(ii) if the court accepts a consent to adopt in lieu of
ordering one of the other enumerated permanency dispositions,
the court must review the matter at least every 90 days. The
review will address the reasonable efforts of the agency to
achieve a finalized adoption;

(iii) a consent to adopt under this clause vests all legal
authority regarding the child, including guardianship and legal
custody of the child, with the commissioner of human services as
if the child were a state ward after termination of parental
rights;

(iv) the court must forward a copy of the consent to adopt,
together with a certified copy of the order transferring
guardianship and legal custody to the commissioner, to the
commissioner; deleted text begin and
deleted text end

(v) if an adoption is not finalized by the identified
prospective adoptive parent within 12 months of the execution of
the consent to adopt under this clause, the commissioner of
human services or the commissioner's delegate shall pursue
adoptive placement in another home unless the commissioner
certifies that the failure to finalize is not due to either an
action or a failure to act by the prospective adoptive parent new text begin ;
and
new text end

new text begin (vi) notwithstanding item (v), the commissioner of human
services or the commissioner's designee must pursue adoptive
placement in another home as soon as the commissioner or
commissioner's designee determines that finalization of the
adoption with the identified prospective adoptive parent is not
possible, that the identified prospective adoptive parent is not
willing to adopt the child, that the identified prospective
adoptive parent is not cooperative in completing the steps
necessary to finalize the adoption, or upon the commissioner's
determination to withhold consent to the adoption new text end .

(e) In ordering a permanent placement of a child, the court
must be governed by the best interests of the child, including a
review of the relationship between the child and relatives and
the child and other important persons with whom the child has
resided or had significant contact.

(f) Once a permanent placement determination has been made
and permanent placement has been established, further court
reviews are necessary if:

(1) the placement is long-term foster care or foster care
for a specified period of time;

(2) the court orders further hearings because it has
retained jurisdiction of a transfer of permanent legal and
physical custody matter;

(3) an adoption has not yet been finalized; or

(4) there is a disruption of the permanent or long-term
placement.

(g) Court reviews of an order for long-term foster care,
whether under this section or section 260C.317, subdivision 3,
paragraph (d), or foster care for a specified period of time
must be conducted at least yearly and must review the child's
out-of-home placement plan and the reasonable efforts of the
agency to:

(1) identify a specific long-term foster home for the child
or a specific foster home for the time the child is specified to
be out of the care of the parent, if one has not already been
identified;

(2) support continued placement of the child in the
identified home, if one has been identified;

(3) ensure appropriate services are provided to the child
during the period of long-term foster care or foster care for a
specified period of time;

(4) plan for the child's independence upon the child's
leaving long-term foster care living as required under section
260C.212, subdivision 1; and

(5) where placement is for a specified period of time, a
plan for the safe return of the child to the care of the parent.

(h) An order under this subdivision must include the
following detailed findings:

(1) how the child's best interests are served by the order;

(2) the nature and extent of the responsible social service
agency's reasonable efforts, or, in the case of an Indian child,
active efforts to reunify the child with the parent or parents;

(3) the parent's or parents' efforts and ability to use
services to correct the conditions which led to the out-of-home
placement; and

(4) whether the conditions which led to the out-of-home
placement have been corrected so that the child can return home.

(i) An order for permanent legal and physical custody of a
child may be modified under sections 518.18 and 518.185. The
social services agency is a party to the proceeding and must
receive notice. A parent may only seek modification of an order
for long-term foster care upon motion and a showing by the
parent of a substantial change in the parent's circumstances
such that the parent could provide appropriate care for the
child and that removal of the child from the child's permanent
placement and the return to the parent's care would be in the
best interest of the child.

(j) The court shall issue an order required under this
section within 15 days of the close of the proceedings. The
court may extend issuing the order an additional 15 days when
necessary in the interests of justice and the best interests of
the child.

Sec. 6.

new text begin [260C.209] BACKGROUND CHECKS.
new text end

new text begin Subdivision 1. new text end

new text begin Subjects. new text end

new text begin The responsible social services
agency must conduct a background check under this section of the
following:
new text end

new text begin (1) a noncustodial parent or nonadjudicated parent who is
being assessed for purposes of providing day-to-day care of a
child temporarily or permanently under section 260C.212,
subdivision 4, and any member of the parent's household who is
over the age of 13;
new text end

new text begin (2) an individual whose suitability for relative placement
under section 260C.212, subdivision 5, is being determined, and
any member of the relative's household who is over the age of
13; and
new text end

new text begin (3) a parent, following an out-of-home placement, when the
responsible social service agency has reasonable cause to
believe that further pertinent information may exist on the
custodial parent that may relate to the health, safety, or
welfare of the child in that parent's care.
new text end

new text begin Subd. 2. new text end

new text begin General procedures. new text end

new text begin (a) The individual being
assessed must provide sufficient information to ensure an
accurate assessment under this section, including:
new text end

new text begin (1) the individual's first, middle, and last name and all
other names by which the individual has been known;
new text end

new text begin (2) home address, zip code, city, county, and state of
residence for the past ten years;
new text end

new text begin (3) sex;
new text end

new text begin (4) date of birth; and
new text end

new text begin (5) driver's license number or state identification number.
new text end

new text begin (b) When notified by the responsible social services agency
that it is conducting an assessment under this section, the
Bureau of Criminal Apprehension, commissioners of health and
human services, law enforcement, and county agencies must
provide the responsible social services agency or county
attorney with the following information on the individual being
assessed: criminal history data, reports about the maltreatment
of adults substantiated under section 626.557, and reports of
maltreatment of minors substantiated under section 626.556.
new text end

new text begin Subd. 3. new text end

new text begin Multistate information. new text end

new text begin (a) For any assessment
completed under this section, if the responsible social services
agency has reasonable cause to believe that further pertinent
information may exist on the parent that may relate to the
health, safety, or welfare of the child, the individual must
provide the responsible social services agency or the county
attorney with a set of classifiable fingerprints obtained from
an authorized law enforcement agency. The responsible social
services agency or county attorney may obtain criminal history
data from the National Criminal Records Repository by submitting
the fingerprints to the Bureau of Criminal Apprehension.
new text end

new text begin (b) For purposes of this subdivision, the responsible
social services agency has reasonable cause when, but not
limited to:
new text end

new text begin (1) information from the Bureau of Criminal Apprehension
indicates that the individual is a multistate offender;
new text end

new text begin (2) information from the Bureau of Criminal Apprehension
indicates that multistate offender status is undetermined;
new text end

new text begin (3) the social services agency has received a report from
the individual or a third party indicating that the individual
has a criminal history in a jurisdiction other than Minnesota;
or
new text end

new text begin (4) the individual is or has been a resident of a state
other than Minnesota at any time during the prior ten years.
new text end

Sec. 7.

Minnesota Statutes 2004, section 260C.212,
subdivision 4, is amended to read:

Subd. 4.

Responsible social service agency's duties for
children in placement.

(a) When a child is in placement, the
responsible social services agency shall make diligent efforts
to identify, locate, and, where appropriate, offer services to
both parents of the child.

(1) deleted text begin If deleted text end new text begin The responsible social services agency shall assess
whether new text end a noncustodial or nonadjudicated parent is willing and
capable of providing for the day-to-day care of the child
new text begin temporarily or permanently. An assessment under this clause may
include, but is not limited to, obtaining information under
section 260C.209. If after assessment, the responsible social
services agency determines that a noncustodial or nonadjudicated
parent is willing and capable and it is in the best interests of
the child for that parent to provide day-to-day care of the
child new text end , the responsible social services agency may seek authority
from the custodial parent or the court to have that parent
assume day-to-day care of the child. If a parent is not an
adjudicated parent, the responsible social services agency shall
require the nonadjudicated parent to cooperate with paternity
establishment procedures as part of the case plan.

(2) If, after assessment, the responsible social services
agency determines that the child cannot be in the day-to-day
care of either parent, the agency shall prepare an out-of-home
placement plan addressing the conditions that each parent must
meet before the child can be in that parent's day-to-day care.

(3) If, after the provision of services following an
out-of-home placement plan under this section, the child cannot
return to the care of the parent from whom the child was removed
or who had legal custody at the time the child was placed in
foster care, the agency may petition on behalf of a noncustodial
parent to establish legal custody with that parent under section
260C.201, subdivision 11. If paternity has not already been
established, it may be established in the same proceeding in the
manner provided for under chapter 257.

(4) The responsible social services agency may be relieved
of the requirement to locate and offer services to both parents
by the juvenile court upon a finding of good cause after the
filing of a petition under section 260C.141.

(b) The responsible social services agency shall give
notice to the parent or parents or guardian of each child in a
residential facility, other than a child in placement due solely
to that child's developmental disability or emotional
disturbance, of the following information:

(1) that residential care of the child may result in
termination of parental rights or an order permanently placing
the child out of the custody of the parent, but only after
notice and a hearing as required under chapter 260C and the
juvenile court rules;

(2) time limits on the length of placement and of
reunification services, including the date on which the child is
expected to be returned to and safely maintained in the home of
the parent or parents or placed for adoption or otherwise
permanently removed from the care of the parent by court order;

(3) the nature of the services available to the parent;

(4) the consequences to the parent and the child if the
parent fails or is unable to use services to correct the
circumstances that led to the child's placement;

(5) the first consideration for placement with relatives;

(6) the benefit to the child in getting the child out of
residential care as soon as possible, preferably by returning
the child home, but if that is not possible, through a permanent
legal placement of the child away from the parent;

(7) when safe for the child, the benefits to the child and
the parent of maintaining visitation with the child as soon as
possible in the course of the case and, in any event, according
to the visitation plan under this section; and

(8) the financial responsibilities and obligations, if any,
of the parent or parents for the support of the child during the
period the child is in the residential facility.

(c) The responsible social services agency shall inform a
parent considering voluntary placement of a child who is not
developmentally disabled or emotionally disturbed of the
following information:

(1) the parent and the child each has a right to separate
legal counsel before signing a voluntary placement agreement,
but not to counsel appointed at public expense;

(2) the parent is not required to agree to the voluntary
placement, and a parent who enters a voluntary placement
agreement may at any time request that the agency return the
child. If the parent so requests, the child must be returned
within 24 hours of the receipt of the request;

(3) evidence gathered during the time the child is
voluntarily placed may be used at a later time as the basis for
a petition alleging that the child is in need of protection or
services or as the basis for a petition seeking termination of
parental rights or other permanent placement of the child away
from the parent;

(4) if the responsible social services agency files a
petition alleging that the child is in need of protection or
services or a petition seeking the termination of parental
rights or other permanent placement of the child away from the
parent, the parent would have the right to appointment of
separate legal counsel and the child would have a right to the
appointment of counsel and a guardian ad litem as provided by
law, and that counsel will be appointed at public expense if
they are unable to afford counsel; and

(5) the timelines and procedures for review of voluntary
placements under subdivision 3, and the effect the time spent in
voluntary placement on the scheduling of a permanent placement
determination hearing under section 260C.201, subdivision 11.

(d) When an agency accepts a child for placement, the
agency shall determine whether the child has had a physical
examination by or under the direction of a licensed physician
within the 12 months immediately preceding the date when the
child came into the agency's care. If there is documentation
that the child has had an examination within the last 12 months,
the agency is responsible for seeing that the child has another
physical examination within one year of the documented
examination and annually in subsequent years. If the agency
determines that the child has not had a physical examination
within the 12 months immediately preceding placement, the agency
shall ensure that the child has an examination within 30 days of
coming into the agency's care and once a year in subsequent
years.