SF 2415

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to family law; providing for mediated 
  1.3             relative care in certain child protection cases; 
  1.4             modifying certain child custody provisions; permitting 
  1.5             a communication or contact agreement after adoption; 
  1.6             amending Minnesota Statutes 1994, sections 259.59, by 
  1.7             adding a subdivision; 260.191, subdivision 3b; 
  1.8             260.241, subdivision 1; and 518.158; proposing coding 
  1.9             for new law in Minnesota Statutes, chapters 259; and 
  1.10            260. 
  1.11  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.12     Section 1.  [259.58] [COMMUNICATION OR CONTACT AGREEMENTS.] 
  1.13     Adoptive parents and birth parents may enter an agreement 
  1.14  under this section regarding communication with or contact 
  1.15  between minor adoptees, adoptive parents, and a birth parent or 
  1.16  parents. 
  1.17     (a) An agreement regarding communication with or contact 
  1.18  between minor adoptees, adoptive parents, and a birth parent or 
  1.19  parents is not legally enforceable unless the terms of the 
  1.20  agreement are contained in a written court order entered in 
  1.21  accordance with this section.  An order must be sought at the 
  1.22  same time a petition for adoption is filed.  The court shall not 
  1.23  enter a proposed order unless the terms of the order have been 
  1.24  approved in writing by the prospective adoptive parents, a birth 
  1.25  parent who desires to be a party to the agreement, and, if the 
  1.26  child is in the custody of an agency, a representative of the 
  1.27  agency.  An agreement under this section need not disclose the 
  1.28  identity of the parties to be legally enforceable.  The court 
  2.1   shall not enter a proposed order unless the court finds that the 
  2.2   communication or contact between the minor adoptee, the adoptive 
  2.3   parents, and a birth parent or parents as agreed upon and 
  2.4   contained in the proposed order would be in the minor adoptee's 
  2.5   best interests. 
  2.6      (b) Failure to comply with the terms of an agreed order 
  2.7   regarding communication or contact that has been entered by the 
  2.8   court under this section is not grounds for: 
  2.9      (1) setting aside an adoption decree; or 
  2.10     (2) revocation of a written consent to an adoption after 
  2.11  that consent has become irrevocable. 
  2.12     (c) An agreed order entered under this section may be 
  2.13  enforced by a civil action.  The prevailing party in that action 
  2.14  may be awarded reasonable attorneys' fees as part of the costs 
  2.15  of the action.  The court shall not modify an agreed order under 
  2.16  this section unless it finds that the modification is necessary 
  2.17  to serve the best interests of the minor adoptee and: 
  2.18     (1) the modification is agreed to by the adoptive parent 
  2.19  and the birth parent or parents; or 
  2.20     (2) exceptional circumstances have arisen since the agreed 
  2.21  order was entered that justify modification of the order. 
  2.22     Sec. 2.  Minnesota Statutes 1994, section 259.59, is 
  2.23  amended by adding a subdivision to read: 
  2.24     Subd. 3.  This section does not prohibit birth parents and 
  2.25  adoptive parents from entering a communication or contact 
  2.26  agreement under section 259.58. 
  2.27     Sec. 3.  [260.188] [CERTAIN MEDIATED DISPOSITIONS.] 
  2.28     Subdivision 1.  [DEFINITION.] For purposes of this section, 
  2.29  "relative" means a stepparent, grandparent, brother, sister, 
  2.30  uncle, aunt, or other extended family member of the minor by 
  2.31  blood, marriage, or adoption, or an important friend with whom 
  2.32  the child has had significant contact. 
  2.33     For an Indian child, "relative" includes members of the 
  2.34  extended family as defined by the law or custom of the Indian 
  2.35  child's tribe or, in the absence of law or custom, nieces, 
  2.36  nephews, or first or second cousins, as provided in the Indian 
  3.1   Child Welfare Act of 1978, United States Code, title 25, section 
  3.2   1903. 
  3.3      Subd. 2.  [MEDIATED RELATIVE CARE.] If a child is placed in 
  3.4   a residential facility, as defined in section 257.071, 
  3.5   subdivision 1, by court order or by the voluntary release of the 
  3.6   child by the parent, or if a child is placed with a relative 
  3.7   under section 260.173, subdivision 2, the local social service 
  3.8   agency shall proceed initially under this section, 
  3.9   notwithstanding section 260.191 or other provisions of chapter 
  3.10  260 to the contrary. 
  3.11     The local social service agency shall determine whether 
  3.12  appropriate relatives are available and willing to assume the 
  3.13  care of the child.  Consideration must be given to a relative 
  3.14  with whom the child was placed under section 260.173, 
  3.15  subdivision 2, as well as to any other appropriate, available, 
  3.16  and willing relatives.  A relative who is approved by the local 
  3.17  social service agency to care for the child has the rights of a 
  3.18  legal custodian of the child for the duration of the relative 
  3.19  care agreement under this section.  A relative caring for a 
  3.20  child under this section who wishes to provide foster care for 
  3.21  the child must seek licensure as a foster parent under sections 
  3.22  245A.01 to 245A.08. 
  3.23     If the local social service agency determines that an 
  3.24  appropriate relative is available to care for a child, the 
  3.25  agency shall attempt to mediate an agreement between itself, the 
  3.26  parent, and the relative for the care of the child while a case 
  3.27  plan under section 257.071, subdivision 1, is implemented for 
  3.28  the parent, and until the parent has met the requirements of 
  3.29  subdivision 3.  A relative care agreement entered under this 
  3.30  section must be reviewed by the court six months after it is 
  3.31  entered and every 18 months thereafter to determine whether the 
  3.32  relative care agreement continues to be in the best interests of 
  3.33  the child. 
  3.34     Subd. 3.  [PARENT'S SHOWING.] A parent may file a motion at 
  3.35  any time to require that the child be returned to the home of 
  3.36  the parent if the parent establishes that: 
  4.1      (1) the parent has substantially complied with a case plan 
  4.2   implemented under section 257.071, subdivision 1, and any court 
  4.3   orders; and 
  4.4      (2) the conditions which led to the child's placement 
  4.5   out-of-home have been corrected. 
  4.6      The parent has the burden of proof in a motion under this 
  4.7   subdivision. 
  4.8      Subd. 4.  [PROCEDURE ABSENT MEDIATION.] If a mediated 
  4.9   agreement under this section is not possible, whether because no 
  4.10  appropriate relative is available and willing to care for the 
  4.11  child, a parent refuses to attempt mediation, or mediation is 
  4.12  attempted and fails, the local social service agency shall 
  4.13  return the child to the home of the parent or file a petition 
  4.14  under section 260.191. 
  4.15     Sec. 4.  Minnesota Statutes 1994, section 260.191, 
  4.16  subdivision 3b, is amended to read: 
  4.17     Subd. 3b.  [REVIEW OF COURT ORDERED PLACEMENTS; PERMANENT 
  4.18  PLACEMENT DETERMINATION.] (a) If the court places a child in a 
  4.19  residential facility, as defined in section 257.071, subdivision 
  4.20  1, the court shall conduct a hearing to determine the permanent 
  4.21  status of the child not later than 12 months after the child was 
  4.22  placed out of the home of the parent.  Not later than ten days 
  4.23  prior to this hearing, the responsible social service agency 
  4.24  shall file pleadings to establish the basis for the permanent 
  4.25  placement determination.  Notice of the hearing and copies of 
  4.26  the pleadings must be provided pursuant to section 260.141.  If 
  4.27  a termination of parental rights petition is filed before the 
  4.28  date required for the permanency planning determination, no 
  4.29  hearing need be conducted under this section.  The court shall 
  4.30  determine whether the child is to be returned home or, if not, 
  4.31  what permanent placement is consistent with the child's best 
  4.32  interests.  The "best interests of the child" means all relevant 
  4.33  factors to be considered and evaluated. 
  4.34     If the child is not returned to the home, the dispositions 
  4.35  available for permanent placement determination are: 
  4.36     (1) permanent legal and physical custody to a relative 
  5.1   pursuant to the standards and procedures applicable under 
  5.2   chapter 257 or 518.  The social service agency may petition on 
  5.3   behalf of the proposed custodian; 
  5.4      (2) termination of parental rights and adoption; the social 
  5.5   service agency shall file a petition for termination of parental 
  5.6   rights under section 260.231 and all the requirements of 
  5.7   sections 260.221 to 260.245 remain applicable.  An adoption 
  5.8   ordered under this subdivision may include an agreement for 
  5.9   communication or contact under section 259.58; or 
  5.10     (3) long-term foster care; transfer of legal custody and 
  5.11  adoption are preferred permanency options for a child who cannot 
  5.12  return home.  The court may order a child into long-term foster 
  5.13  care only if it finds that neither an award of legal and 
  5.14  physical custody to a relative, nor termination of parental 
  5.15  rights nor adoption is in the child's best interests.  Further, 
  5.16  the court may only order long-term foster care for the child 
  5.17  under this section if it finds the following: 
  5.18     (i) the child has reached age 12 and reasonable efforts by 
  5.19  the responsible social service agency have failed to locate an 
  5.20  adoptive family for the child; or 
  5.21     (ii) the child is a sibling of a child described in clause 
  5.22  (i) and the siblings have a significant positive relationship 
  5.23  and are ordered into the same long-term foster care home.  
  5.24     (b) The court may extend the time period for determination 
  5.25  of permanent placement to 18 months after the child was placed 
  5.26  in a residential facility if: 
  5.27     (1) there is a substantial probability that the child will 
  5.28  be returned home within the next six months; 
  5.29     (2) the agency has not made reasonable, or, in the case of 
  5.30  an Indian child, active efforts, to correct the conditions that 
  5.31  form the basis of the out-of-home placement; or 
  5.32     (3) extraordinary circumstances exist precluding a 
  5.33  permanent placement determination, in which case the court shall 
  5.34  make written findings documenting the extraordinary 
  5.35  circumstances and order one subsequent review after six months 
  5.36  to determine permanent placement.  A court finding that 
  6.1   extraordinary circumstances exist precluding a permanent 
  6.2   placement determination must be supported by detailed factual 
  6.3   findings regarding those circumstances. 
  6.4      (c) In ordering a permanent placement of a child, the court 
  6.5   must be governed by the best interests of the child, including a 
  6.6   review of the relationship between the child and relatives and 
  6.7   the child and other important persons with whom the child has 
  6.8   resided or had significant contact. 
  6.9      (d) Once a permanent placement determination has been made 
  6.10  and permanent placement has been established, further reviews 
  6.11  are only necessary if otherwise required by federal law, an 
  6.12  adoption has not yet been finalized, or there is a disruption of 
  6.13  the permanent or long-term placement.  If required, reviews must 
  6.14  take place no less frequently than every six months. 
  6.15     (e) An order under this subdivision must include the 
  6.16  following detailed findings: 
  6.17     (1) how the child's best interests are served by the order; 
  6.18     (2) the nature and extent of the responsible social service 
  6.19  agency's reasonable efforts, or, in the case of an Indian child, 
  6.20  active efforts, to reunify the child with the parent or parents; 
  6.21     (3) the parent's or parents' efforts and ability to use 
  6.22  services to correct the conditions which led to the out-of-home 
  6.23  placement; 
  6.24     (4) whether the conditions which led to the out-of-home 
  6.25  placement have been corrected so that the child can return home; 
  6.26  and 
  6.27     (5) if the child cannot be returned home, whether there is 
  6.28  a substantial probability of the child being able to return home 
  6.29  in the next six months.  
  6.30     (f) An order for permanent legal and physical custody of a 
  6.31  child may be modified under sections 518.18 and 518.185.  The 
  6.32  social service agency is a party to the proceeding and must 
  6.33  receive notice.  An order for long-term foster care is 
  6.34  reviewable upon motion and a showing by the parent of a 
  6.35  substantial change in the parent's circumstances such that the 
  6.36  parent could provide appropriate care for the child and that 
  7.1   removal of the child from the child's permanent placement and 
  7.2   the return to the parent's care would be in the best interest of 
  7.3   the child. 
  7.4      Sec. 5.  Minnesota Statutes 1994, section 260.241, 
  7.5   subdivision 1, is amended to read: 
  7.6      Subdivision 1.  If, after a hearing, the court finds by 
  7.7   clear and convincing evidence that one or more of the conditions 
  7.8   set out in section 260.221 exist, it may terminate parental 
  7.9   rights.  Upon the termination of parental rights all rights, 
  7.10  powers, privileges, immunities, duties, and obligations, 
  7.11  including any rights to custody, control, visitation, or support 
  7.12  existing between the child and parent shall be severed and 
  7.13  terminated and the parent shall have no standing to appear at 
  7.14  any further legal proceeding concerning the child.  Provided, 
  7.15  however, that a parent whose parental rights are terminated: 
  7.16     (1) shall remain liable for the unpaid balance of any 
  7.17  support obligation owed under a court order upon the effective 
  7.18  date of the order terminating parental rights; and 
  7.19     (2) may be a party to a communication or contact agreement 
  7.20  under section 259.58.  
  7.21     Sec. 6.  Minnesota Statutes 1994, section 518.158, is 
  7.22  amended to read: 
  7.23     518.158 [GRANDPARENT RELATIVE EX PARTE TEMPORARY CUSTODY 
  7.24  ORDER.] 
  7.25     Subdivision 1.  [FACTORS.] It is presumed to be in the best 
  7.26  interests of the child for the court to grant temporary custody 
  7.27  to a grandparent relative under subdivision 2 if a minor child 
  7.28  has resided with the grandparent relative for a period of 12 
  7.29  months or more and the following circumstances exist without 
  7.30  good cause: 
  7.31     (1) the parent has had no contact with the child on a 
  7.32  regular basis and no demonstrated, consistent participation in 
  7.33  the child's well-being for six months; or 
  7.34     (2) the parent, during the time the child resided with the 
  7.35  grandparent relative, has refused or neglected to comply with 
  7.36  the duties imposed upon the parent by the parent and child 
  8.1   relationship, including but not limited to providing the child 
  8.2   necessary food, clothing, shelter, health care, education, and 
  8.3   other care and control necessary for the child's physical, 
  8.4   mental, or emotional health and development. 
  8.5      Subd. 2.  [EMERGENCY CUSTODY HEARING.] If the parent seeks 
  8.6   to remove the child from the home of the grandparent relative 
  8.7   and the factors in subdivision 1 exist, the grandparent relative 
  8.8   may apply for an ex parte temporary order for custody of the 
  8.9   child.  The court shall grant temporary custody if it finds, 
  8.10  based on the application, that the factors in subdivision 1 
  8.11  exist.  If it finds that the factors in subdivision 1 do not 
  8.12  exist, the court shall order that the child be returned to the 
  8.13  parent.  An ex parte temporary custody order under this 
  8.14  subdivision is good effective for a fixed period not to exceed 
  8.15  14 days.  A temporary custody hearing under this chapter must be 
  8.16  set for not later than seven days after issuance of the ex parte 
  8.17  temporary custody order.  The parent must be promptly served 
  8.18  with a copy of the ex parte order and the petition and notice of 
  8.19  the date for the hearing. 
  8.20     Subd. 3.  [FURTHER PROCEEDINGS.] If the court orders 
  8.21  temporary physical custody to the grandparent relative under 
  8.22  subdivision 2 and the grandparent relative or parent seeks to 
  8.23  pursue further temporary or permanent custody of the child, the 
  8.24  custody issues must be determined pursuant to a petition under 
  8.25  this chapter and the other standards and procedures of this 
  8.26  chapter apply.  This section does not affect any rights or 
  8.27  remedies available under other law. 
  8.28     Subd. 4.  [RETURN TO PARENT.] If the court orders permanent 
  8.29  custody to a grandparent relative under this section, the court 
  8.30  shall set conditions the parent must meet in order to obtain 
  8.31  custody.  The court may notify the parent that the parent may 
  8.32  request assistance from the local social service agency in order 
  8.33  to meet the conditions set by the court. 
  8.34     Subd. 5.  [DEFINITION.] For purposes of this section, 
  8.35  "relative" means a stepparent, grandparent, brother, sister, 
  8.36  uncle, aunt, or other extended family member of the minor by 
  9.1   blood, marriage, or adoption, or an important friend with whom 
  9.2   the child has had significant contact. 
  9.3      For an Indian child, "relative" includes members of the 
  9.4   extended family as defined by the law or custom of the Indian 
  9.5   child's tribe or, in the absence of law or custom, nieces, 
  9.6   nephews, or first or second cousins, as provided in the Indian 
  9.7   Child Welfare Act of 1978, United States Code, title 25, section 
  9.8   1903.