HF 3391

as introduced - 86th Legislature (2009 - 2010) Posted on 03/04/2010 09:51am

A bill for an act
relating to children; modifying provisions relating to children in need of
protection or services; amending Minnesota Statutes 2008, sections 260C.007,
subdivisions 6, 14; 260C.163, subdivision 2; 260C.201, by adding a subdivision;
260C.301, subdivision 1; Minnesota Statutes 2009 Supplement, sections
260.012; 260C.175, subdivision 1.

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

Section 1.

Minnesota Statutes 2009 Supplement, section 260.012, is amended to read:

260.012 DUTY TO ENSURE PLACEMENT PREVENTION AND FAMILY
REUNIFICATION; REASONABLE EFFORTS.

(a) Once a child alleged to be in need of protection or services is under the court's
jurisdiction, the court shall ensure that reasonable efforts, including culturally appropriate
services, by the social services agency are made to prevent placement or to eliminate the
need for removal and to reunite the child with the child's family at the earliest possible
time, and the court must ensure that the responsible social services agency makes
reasonable efforts to finalize an alternative permanent plan for the child as provided in
paragraph (e). In determining reasonable efforts to be made with respect to a child and in
making those reasonable efforts, the child's best interests, health, and safety must be of
paramount concern. Reasonable efforts to prevent placement and for rehabilitation and
reunification are always required except upon a determination by the court that a petition
has been filed stating a prima facie case that:

(1) the parent has subjected a child to egregious harm as defined in section
260C.007, subdivision 14;

(2) the parental rights of the parent to another child have been terminated
involuntarily;

(3) the child is an abandoned infant under section 260C.301, subdivision 2,
paragraph (a), clause (2);

(4) the parent's custodial rights to another child have been involuntarily transferred
to a relative under section 260C.201, subdivision 11, paragraph (e), clause (1), or a similar
law of another jurisdiction; deleted text begin or
deleted text end

(5) new text begin the conditions of section 260C.301, subdivision 1, paragraph (b), clause (11),
are met; or
new text end

new text begin (6) new text end the provision of services or further services for the purpose of reunification is
futile and therefore unreasonable under the circumstances.

(b) When the court makes one of the prima facie determinations under paragraph (a),
either permanency pleadings under section 260C.201, subdivision 11, or a termination
of parental rights petition under sections 260C.141 and 260C.301 must be filed. A
permanency hearing under section 260C.201, subdivision 11, must be held within 30
days of this determination.

(c) In the case of an Indian child, in proceedings under sections 260B.178 or
260C.178, 260C.201, and 260C.301 the juvenile court must make findings and conclusions
consistent with the Indian Child Welfare Act of 1978, United States Code, title 25, section
1901 et seq., as to the provision of active efforts. In cases governed by the Indian Child
Welfare Act of 1978, United States Code, title 25, section 1901, the responsible social
services agency must provide active efforts as required under United States Code, title
25, section 1911(d).

(d) "Reasonable efforts to prevent placement" means:

(1) the agency has made reasonable efforts to prevent the placement of the child in
foster care by working with the family to develop and implement a safety plan; or

(2) given the particular circumstances of the child and family at the time of the
child's removal, there are no services or efforts available which could allow the child to
safely remain in the home.

(e) "Reasonable efforts to finalize a permanent plan for the child" means due
diligence by the responsible social services agency to:

(1) reunify the child with the parent or guardian from whom the child was removed;

(2) assess a noncustodial parent's ability to provide day-to-day care for the child and,
where appropriate, provide services necessary to enable the noncustodial parent to safely
provide the care, as required by section 260C.212, subdivision 4;

(3) conduct a relative search to identify and provide notice to adult relatives as
required under section 260C.212, subdivision 5;

(4) place siblings removed from their home in the same home for foster care or
adoption, or transfer permanent legal and physical custody to a relative. Visitation
between siblings who are not in the same foster care, adoption, or custodial placement or
facility shall be consistent with section 260C.212, subdivision 2; and

(5) when the child cannot return to the parent or guardian from whom the child was
removed, to plan for and finalize a safe and legally permanent alternative home for the
child, and considers permanent alternative homes for the child inside or outside of the
state, preferably through adoption or transfer of permanent legal and physical custody of
the child.

(f) Reasonable efforts are made upon the exercise of due diligence by the responsible
social services agency to use culturally appropriate and available services to meet the
needs of the child and the child's family. Services may include those provided by the
responsible social services agency and other culturally appropriate services available in
the community. At each stage of the proceedings where the court is required to review
the appropriateness of the responsible social services agency's reasonable efforts as
described in paragraphs (a), (d), and (e), the social services agency has the burden of
demonstrating that:

(1) it has made reasonable efforts to prevent placement of the child in foster care;

(2) it has made reasonable efforts to eliminate the need for removal of the child from
the child's home and to reunify the child with the child's family at the earliest possible time;

(3) it has made reasonable efforts to finalize an alternative permanent home for
the child, and considers permanent alternative homes for the child inside or outside of
the state; or

(4) reasonable efforts to prevent placement and to reunify the child with the parent
or guardian are not required. The agency may meet this burden by stating facts in a sworn
petition filed under section 260C.141, by filing an affidavit summarizing the agency's
reasonable efforts or facts the agency believes demonstrate there is no need for reasonable
efforts to reunify the parent and child, or through testimony or a certified report required
under juvenile court rules.

(g) Once the court determines that reasonable efforts for reunification are not
required because the court has made one of the prima facie determinations under paragraph
(a), the court may only require reasonable efforts for reunification after a hearing according
to section 260C.163, where the court finds there is not clear and convincing evidence of
the facts upon which the court based its prima facie determination. In this case when there
is clear and convincing evidence that the child is in need of protection or services, the
court may find the child in need of protection or services and order any of the dispositions
available under section 260C.201, subdivision 1. Reunification of a surviving child with a
parent is not required if the parent has been convicted of:

(1) a violation of, or an attempt or conspiracy to commit a violation of, sections
609.185 to 609.20; 609.222, subdivision 2; or 609.223 in regard to another child of the
parent;

(2) a violation of section 609.222, subdivision 2; or 609.223, in regard to the
surviving child; or

(3) a violation of, or an attempt or conspiracy to commit a violation of, United States
Code, title 18, section 1111(a) or 1112(a), in regard to another child of the parent.

(h) The juvenile court, in proceedings under sections 260B.178 or 260C.178,
260C.201, and 260C.301 shall make findings and conclusions as to the provision of
reasonable efforts. When determining whether reasonable efforts have been made, the
court shall consider whether services to the child and family were:

(1) relevant to the safety and protection of the child;

(2) adequate to meet the needs of the child and family;

(3) culturally appropriate;

(4) available and accessible;

(5) consistent and timely; and

(6) realistic under the circumstances.

In the alternative, the court may determine that provision of services or further
services for the purpose of rehabilitation is futile and therefore unreasonable under the
circumstances or that reasonable efforts are not required as provided in paragraph (a).

(i) This section does not prevent out-of-home placement for treatment of a child with
a mental disability when it is determined to be medically necessary as a result of the child's
diagnostic assessment or individual treatment plan indicates that appropriate and necessary
treatment cannot be effectively provided outside of a residential or inpatient treatment
program and the level or intensity of supervision and treatment cannot be effectively and
safely provided in the child's home or community and it is determined that a residential
treatment setting is the least restrictive setting that is appropriate to the needs of the child.

(j) If continuation of reasonable efforts to prevent placement or reunify the child
with the parent or guardian from whom the child was removed is determined by the court
to be inconsistent with the permanent plan for the child or upon the court making one of
the prima facie determinations under paragraph (a), reasonable efforts must be made to
place the child in a timely manner in a safe and permanent home and to complete whatever
steps are necessary to legally finalize the permanent placement of the child.

(k) Reasonable efforts to place a child for adoption or in another permanent
placement may be made concurrently with reasonable efforts to prevent placement or to
reunify the child with the parent or guardian from whom the child was removed. When
the responsible social services agency decides to concurrently make reasonable efforts for
both reunification and permanent placement away from the parent under paragraph (a), the
agency shall disclose its decision and both plans for concurrent reasonable efforts to all
parties and the court. When the agency discloses its decision to proceed on both plans for
reunification and permanent placement away from the parent, the court's review of the
agency's reasonable efforts shall include the agency's efforts under both plans.

Sec. 2.

Minnesota Statutes 2008, section 260C.007, subdivision 6, is amended to read:

Subd. 6.

Child in need of protection or services.

"Child in need of protection or
services" means a child who deleted text begin is in need of protection or services because the child deleted text end :

(1) is abandoned or without parent, guardian, or custodian;

(2)(i) has been a victim of physical or sexual abuse as defined in section 626.556,
subdivision 2, (ii) resides with or has resided with a victim of child abuse as defined in
subdivision 5 or domestic child abuse as defined in subdivision 13, (iii) resides with or
would reside with a perpetrator of domestic child abuse as defined in subdivision 13 or
child abuse as defined in subdivision 5 or 13, or (iv) is a victim of emotional maltreatment
as defined in subdivision 15;

(3) is without necessary food, clothing, shelter, education, or other required care
for the child's physical or mental health or morals because the child's parent, guardian,
or custodian is unable or unwilling to provide that care;

(4) is without the special care made necessary by a physical, mental, or emotional
condition because the child's parent, guardian, or custodian is unable or unwilling to
provide that care;

(5) is medically neglected, which includes, but is not limited to, the withholding of
medically indicated treatment from a disabled infant with a life-threatening condition. The
term "withholding of medically indicated treatment" means the failure to respond to the
infant's life-threatening conditions by providing treatment, including appropriate nutrition,
hydration, and medication which, in the treating physician's or physicians' reasonable
medical judgment, will be most likely to be effective in ameliorating or correcting all
conditions, except that the term does not include the failure to provide treatment other
than appropriate nutrition, hydration, or medication to an infant when, in the treating
physician's or physicians' reasonable medical judgment:

(i) the infant is chronically and irreversibly comatose;

(ii) the provision of the treatment would merely prolong dying, not be effective in
ameliorating or correcting all of the infant's life-threatening conditions, or otherwise be
futile in terms of the survival of the infant; or

(iii) the provision of the treatment would be virtually futile in terms of the survival
of the infant and the treatment itself under the circumstances would be inhumane;

(6) is one whose parent, guardian, or other custodian for good cause desires to be
relieved of the child's care and custody, including a child who entered foster care under a
voluntary placement agreement between the parent and the responsible social services
agency under section 260C.212, subdivision 8;

(7) has been placed for adoption or care in violation of law;

(8) is without proper parental care because of the emotional, mental, or physical
disability, or state of immaturity of the child's parent, guardian, or other custodian;

(9) is one whose behavior, condition, or environment is such as to be injurious or
dangerous to the child or others. An injurious or dangerous environment may include, but
is not limited to, the exposure of a child to criminal activity in the child's home;

(10) is experiencing growth delays, which may be referred to as failure to thrive, that
have been diagnosed by a physician and are due to parental neglect;

(11) has engaged in prostitution as defined in section 609.321, subdivision 9;

(12) has committed a delinquent act or a juvenile petty offense before becoming
ten years old;

(13) is a runaway;

(14) is a habitual truant; deleted text begin or
deleted text end

(15) has been found incompetent to proceed or has been found not guilty by reason
of mental illness or mental deficiency in connection with a delinquency proceeding, a
certification under section 260B.125, an extended jurisdiction juvenile prosecution, or a
proceeding involving a juvenile petty offense new text begin ; or
new text end

new text begin (16) has a parent whose parental rights to one or more other children were
involuntarily terminated or whose custodial rights to another child have been involuntarily
transferred to a relative and there is a case plan prepared by the responsible social services
agency documenting a compelling reason why filing the termination of parental rights
petition under section 260C.301, subdivision 3, is not in the best interests of the child new text end .

Sec. 3.

Minnesota Statutes 2008, section 260C.007, subdivision 14, is amended to read:

Subd. 14.

Egregious harm.

"Egregious harm" means the infliction of bodily harm
to a child or neglect of a child which demonstrates a grossly inadequate ability to provide
minimally adequate parental care. The egregious harm need not have occurred in the
state or in the county where a termination of parental rights action is otherwise properly
venued. Egregious harm includes, but is not limited to:

(1) conduct towards a child that constitutes a violation of sections 609.185 to 609.21,
609.222, subdivision 2, 609.223, or any other similar law of any other state;

(2) the infliction of "substantial bodily harm" to a child, as defined in section 609.02,
subdivision 7a;

(3) conduct towards a child that constitutes felony malicious punishment of a child
under section 609.377;

(4) conduct towards a child that constitutes felony unreasonable restraint of a child
under section 609.255, subdivision 3;

(5) conduct towards a child that constitutes felony neglect or endangerment of a
child under section 609.378;

(6) conduct towards a child that constitutes assault under section 609.221, 609.222,
or 609.223;

(7) conduct towards a child that constitutes solicitation, inducement, or promotion
of, or receiving profit derived from prostitution under section 609.322;

(8) conduct towards a child that constitutes murder or voluntary manslaughter as
defined by United States Code, title 18, section 1111(a) or 1112(a);

(9) conduct towards a child that constitutes aiding or abetting, attempting,
conspiring, or soliciting to commit a murder or voluntary manslaughter that constitutes a
violation of United States Code, title 18, section 1111(a) or 1112(a); deleted text begin or
deleted text end

(10) conduct toward a child that constitutes criminal sexual conduct under sections
609.342 to 609.345 new text begin ; or
new text end

new text begin (11) the unexplained serious physical injury of a child that resulted from the
intentional conduct or willful neglect of the child's parent new text end .

Sec. 4.

Minnesota Statutes 2008, section 260C.163, subdivision 2, is amended to read:

Subd. 2.

Right to participate in proceedings.

A child who is the subject of
a petition, and the parents, guardian, or legal custodian of the child have the right to
participate in all proceedings on a petition. Official tribal representatives have the right
to participate in any proceeding that is subject to the Indian Child Welfare Act of 1978,
United States Code, title 25, sections 1901 to 1963.

Any grandparent of the child has a right to participate in the proceedings to the
same extent as a parent, if the child has lived with the grandparent within the two years
preceding the filing of the petition. At the first hearing following the filing of a petition,
the court shall ask whether the child has lived with a grandparent within the last two years,
except that the court need not make this inquiry if the petition states that the child did not
live with a grandparent during this time period. Failure to notify a grandparent of the
proceedings is not a jurisdictional defect.

If, in a new text begin permanency new text end proceeding involving a child in need of protection or services,
deleted text begin the responsible social services agency recommends deleted text end new text begin any party files a petition for new text end transfer
of permanent legal and physical custody to a new text begin named new text end relative, the relative has a right to
participate new text begin in the permanency proceeding new text end as a party new text begin solely on the issue of the relative's
suitability to be a legal and physical custodian for the child and whether the transfer
is in the child's best interests new text end , and thereafter shall receive notice of any hearing in the
proceedings.

Sec. 5.

Minnesota Statutes 2009 Supplement, section 260C.175, subdivision 1, is
amended to read:

Subdivision 1.

Immediate custody.

No child may be taken into immediate custody
except:

(1) with an order issued by the court in accordance with the provisions of section
260C.151, subdivision 6, or Laws 1997, chapter 239, article 10, section 10, paragraph
(a), clause (3), or 12, paragraph (a), clause (3), or by a warrant issued in accordance
with the provisions of section 260C.154;

(2) by a peace officer:

(i) when a child has run away from a parent, guardian, or custodian, or when the
peace officer reasonably believes the child has run away from a parent, guardian, or
custodian, but only for the purpose of transporting the child home, to the home of a
relative, or to another safe place new text begin which may include a shelter care facility new text end ; or

(ii) when a child is found in surroundings or conditions which endanger the child's
health or welfare or which such peace officer reasonably believes will endanger the child's
health or welfare. If an Indian child is a resident of a reservation or is domiciled on a
reservation but temporarily located off the reservation, the taking of the child into custody
under this clause shall be consistent with the Indian Child Welfare Act of 1978, United
States Code, title 25, section 1922;

(3) by a peace officer or probation or parole officer when it is reasonably believed
that the child has violated the terms of probation, parole, or other field supervision; or

(4) by a peace officer or probation officer under section 260C.143, subdivision 1 or 4.

Sec. 6.

Minnesota Statutes 2008, section 260C.201, is amended by adding a
subdivision to read:

new text begin Subd. 13. new text end

new text begin Stay of adjudication. new text end

new text begin (a) The court may stay an adjudication that the
child is in need of protection or services under the following circumstances:
new text end

new text begin (1) the court has not made a prima facie finding in a hearing under section
260C.178 or a subsequent hearing that the child's health or welfare would be immediately
endangered if the child remained in or was returned to the care of the parent, guardian, or
legal custodian from whom the child was removed;
new text end

new text begin (2) the allegations in the petition have been admitted, or when a hearing has been
held as provided in section 260C.163 and the allegations contained in the petition have
been duly proven;
new text end

new text begin (3) the parent is engaging in a case plan, approved by the local social services agency
and the court, which is anticipated to correct the conditions that led to the child in need of
protection petition and can be completed within 90 days; and
new text end

new text begin (4) the court makes a specific finding as to how it is in the best interests of the
child that adjudication is stayed.
new text end

new text begin (b) The court may stay an adjudication for a period not to exceed 90 days from the
date on which the findings in paragraph (a) were made, unless the court finds that it is in
the child's best interests to extend the period no more than one additional 90-day period.
new text end

new text begin (c) If the parent and child have complied with the terms of the stay, the case must
be dismissed without an adjudication that the child is in need of protection or services
within the time periods set in paragraph (b).
new text end

new text begin (d) If the parent or child has not complied with the terms of the stay within the time
periods set in paragraph (b), the court shall adjudicate the child in need of protection or
services.
new text end

Sec. 7.

Minnesota Statutes 2008, section 260C.301, subdivision 1, is amended to read:

Subdivision 1.

Voluntary and involuntary.

The juvenile court may upon petition,
terminate all rights of a parent to a child:

(a) with the written consent of a parent who for good cause desires to terminate
parental rights; or

(b) if it finds that one or more of the following conditions exist:

(1) that the parent has abandoned the child;

(2) that the parent has substantially, continuously, or repeatedly refused or neglected
to comply with the duties imposed upon that parent by the parent and child relationship,
including but not limited to providing the child with necessary food, clothing, shelter,
education, and other care and control necessary for the child's physical, mental, or
emotional health and development, if the parent is physically and financially able, and
either reasonable efforts by the social services agency have failed to correct the conditions
that formed the basis of the petition or reasonable efforts would be futile and therefore
unreasonable;

(3) that a parent has been ordered to contribute to the support of the child or
financially aid in the child's birth and has continuously failed to do so without good cause.
This clause shall not be construed to state a grounds for termination of parental rights of a
noncustodial parent if that parent has not been ordered to or cannot financially contribute
to the support of the child or aid in the child's birth;

(4) that a parent is palpably unfit to be a party to the parent and child relationship
because of a consistent pattern of specific conduct before the child or of specific conditions
directly relating to the parent and child relationship either of which are determined by
the court to be of a duration or nature that renders the parent unable, for the reasonably
foreseeable future, to care appropriately for the ongoing physical, mental, or emotional
needs of the child. It is presumed that a parent is palpably unfit to be a party to the parent
and child relationship upon a showing that new text begin :
new text end

new text begin (i) new text end the parent's parental rights to one or more other children were involuntarily
terminated deleted text begin or deleted text end new text begin ; new text end

deleted text begin that deleted text end new text begin (ii) new text end the parent's custodial rights to another child have been involuntarily
transferred to a relative under section 260C.201, subdivision 11, paragraph (e), clause (1),
or a similar law of another jurisdiction; new text begin or new text end

new text begin (iii) the parent has subjected any child to egregious harm as defined in section
260C.007, subdivision 14;
new text end

(5) that following the child's placement out of the home, reasonable efforts, under the
direction of the court, have failed to correct the conditions leading to the child's placement.
It is presumed that reasonable efforts under this clause have failed upon a showing that:

(i) a child has resided out of the parental home under court order for a cumulative
period of 12 months within the preceding 22 months. In the case of a child under age eight
at the time the petition was filed alleging the child to be in need of protection or services,
the presumption arises when the child has resided out of the parental home under court
order for six months unless the parent has maintained regular contact with the child and
the parent is complying with the out-of-home placement plan;

(ii) the court has approved the out-of-home placement plan required under section
260C.212 and filed with the court under section 260C.178;

(iii) conditions leading to the out-of-home placement have not been corrected. It
is presumed that conditions leading to a child's out-of-home placement have not been
corrected upon a showing that the parent or parents have not substantially complied with
the court's orders and a reasonable case plan; and

(iv) reasonable efforts have been made by the social services agency to rehabilitate
the parent and reunite the family.

This clause does not prohibit the termination of parental rights prior to one year, or
in the case of a child under age eight, prior to six months after a child has been placed
out of the home.

It is also presumed that reasonable efforts have failed under this clause upon a
showing that:

(A) the parent has been diagnosed as chemically dependent by a professional
certified to make the diagnosis;

(B) the parent has been required by a case plan to participate in a chemical
dependency treatment program;

(C) the treatment programs offered to the parent were culturally, linguistically,
and clinically appropriate;

(D) the parent has either failed two or more times to successfully complete a
treatment program or has refused at two or more separate meetings with a caseworker
to participate in a treatment program; and

(E) the parent continues to abuse chemicals.

(6) that a child has experienced egregious harm in the parent's care which is of a
nature, duration, or chronicity that indicates a lack of regard for the child's well-being,
such that a reasonable person would believe it contrary to the best interest of the child
or of any child to be in the parent's care;

new text begin Lack of regard for the child's well-being may be established by a statement, behavior,
action, or failure to act before, during, or after a child experiences egregious harm that
indicates the parent either inflicted the egregious harm, knew or should have known of the
egregious harm, or is unable or unwilling to protect a child from the same or similar harm
in the future. A statement, behavior, action, or failure to act includes, but is not limited to:
new text end

new text begin (i) inflicting the egregious harm;
new text end

new text begin (ii) permitting another to inflict egregious harm;
new text end

new text begin (iii) failing to protect the child from egregious harm;
new text end

new text begin (iv) unreasonable delay in obtaining medical evaluation or treatment for a child
who experiences egregious harm;
new text end

new text begin (v) giving a history of the circumstances of the child's injury or harm that is
inconsistent with the egregious harm and which does not reasonably explain the injury
or harm;
new text end

new text begin (vi) failure to protect the child from a caretaker whose past history includes infliction
of substantial bodily harm as defined in section 609.02, subdivision 7a, on a child, great
bodily harm as defined in section 609.02, subdivision 8, on a child, or egregious harm
under section 260C.007, subdivision 14, when the parent knew or should have known
of the caretaker's past history; or
new text end

new text begin (vii) aiding, abetting, or conspiring to conceal actions that constitute egregious
harm of a child;
new text end

(7) that in the case of a child born to a mother who was not married to the child's
father when the child was conceived nor when the child was born the person is not entitled
to notice of an adoption hearing under section 259.49 and the person has not registered
with the fathers' adoption registry under section 259.52;

(8) that the child is neglected and in foster care; deleted text begin or
deleted text end

(9) that the parent has been convicted of a crime listed in section 260.012, paragraph
(b), clauses (1) to (3) deleted text begin . deleted text end new text begin ; new text end

new text begin (10) that the parent has engaged in conduct toward the child's other parent that
constitutes a violation of sections 609.185 to 609.20; or
new text end

new text begin (11) that the parent is incarcerated or incarcerated and unavailable to provide parent
care to a child because of postincarceration parole restrictions for more than 24 months
following the placement of the child into foster care and:
new text end

new text begin (i) the parental rights of the child's other parent are terminated or the other parent is
deceased;
new text end

new text begin (ii) following the reasonable and comprehensive search for relatives required under
section 260C.212, subdivision 5, an award of legal and physical custody to a suitable
relative, as defined in section 260C.007, subdivision 27, cannot be made or is not in the
child's best interests; and
new text end

new text begin (iii) the court approves the social services agency's determination that there are no
compelling reasons for the child to continue in long-term foster care or the child does not
qualify for an order for long-term foster care under section 260C.201, subdivision 11.
new text end

In an action involving an American Indian child, sections 260.751 to 260.835 and
the Indian Child Welfare Act, United States Code, title 25, sections 1901 to 1923, control
to the extent that the provisions of this section are inconsistent with those laws.