SF 2699

as introduced - 90th Legislature (2017 - 2018) Posted on 03/07/2018 03:28pm

A bill for an act
relating to public safety; increasing penalties for child pornography offenses;
requiring reports on court-imposed stays of sentence or adjudication for sex
offenses; restricting the grounds that permit reunification of parents and children
after the parent sexually abuses a child; amending Minnesota Statutes 2016, sections
260.012; 617.246, subdivisions 2, 3, 4, 7; 617.247, subdivisions 3, 4, 9; proposing
coding for new law in Minnesota Statutes, chapter 609.

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

Section 1.

Minnesota Statutes 2016, 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 Minnesota Statutes 2010, section 260C.201, subdivision 11, paragraph (d),
clause (1), section 260C.515, subdivision 4, or a similar law of another jurisdiction;

(5) the parent has committed sexual abuse as defined in section 626.556, subdivision 2,
against the child or another child of the parent;

(6) the parent has committed an offense that requires registration as a predatory offender
under section 243.166, subdivision 1b, paragraph (a) or (b); or

(7) 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.505, or a termination of parental rights
petition under sections 260C.141 and 260C.301 must be filed. A permanency hearing under
sections 260C.503 to 260C.521 must be held within 30 days of this determination.

(c) In the case of an Indian child, in proceedings under sections 260B.178, 260C.178,
260C.201, 260C.202, 260C.204, 260C.301, or 260C.503 to 260C.521, 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.219;

(3) conduct a relative search to identify and provide notice to adult relatives as required
under section 260C.221;

(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 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 child;

(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;

(4) committing sexual abuse as defined in section 626.556, subdivision 2, against the
child or another child of the parent; or

(5) an offense that requires registration as a predatory offender under section 243.166,
subdivision 1b, paragraph (a) or (b).

new text begin Reunification is also not required when a parent receives a stay of adjudication pursuant to
section 609.095, paragraph (b), for an offense that constitutes sexual abuse under clause
(4).
new text end

(h) The juvenile court, in proceedings under sections 260B.178, 260C.178, 260C.201,
260C.202, 260C.204, 260C.301, or 260C.503 to 260C.521, 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.

new text begin [609.3454] STAYS OF SENTENCE OR ADJUDICATION; REPORTS
REQUIRED.
new text end

new text begin (a) By January 31 of each year, each county attorney whose office has prosecuted an
offense in the preceding calendar year for which a court has imposed a stay of imposition
or execution of sentence under section 609.342, subdivision 3; 609.343, subdivision 3;
609.344, subdivision 3; or 609.345, subdivision 3, or a stay of adjudication of guilt for a
violation of section 243.166; 609.342; 609.343; 609.344; 609.345; 609.3451, subdivision
3; or 609.3453, shall report to the Minnesota County Attorneys Association the following
information on each offense for which a stay was imposed:
new text end

new text begin (1) general information about the case, including a brief description of the facts and any
relevant information specific to the case's prosecution;
new text end

new text begin (2) whether the prosecutor objected to or supported the court's decision to impose a stay
and the reasons for that position;
new text end

new text begin (3) what conditions of probation were imposed by the court on the offender; and
new text end

new text begin (4) any other information the county attorney deems appropriate.
new text end

new text begin (b) By March 1 of each year, the Minnesota County Attorneys Association shall forward
to the chairs and ranking minority members of the senate and house of representatives
committees having jurisdiction over criminal justice policy a combined report that includes
the reports of each county attorney under paragraph (a).
new text end

new text begin (c) Reports under this section must not identify individuals who are offenders, victims,
or witnesses to an offense.
new text end

Sec. 3.

Minnesota Statutes 2016, section 617.246, subdivision 2, is amended to read:

Subd. 2.

Use of minor.

new text begin (a) new text end It is unlawful for a person to promote, employ, use or permit
a minor to engage in or assist others to engage minors in posing or modeling alone or with
others in any sexual performance or pornographic work if the person knows or has reason
to know that the conduct intended is a sexual performance or a pornographic work.

Any person who violates this deleted text begin subdivision deleted text end new text begin paragraph new text end is guilty of a felony and may be
sentenced to imprisonment for not more than ten years or to payment of a fine of not more
than $20,000 deleted text begin for the first offense and $40,000 for a second or subsequent offense deleted text end , or both.

new text begin (b) A person who violates paragraph (a) is guilty of a felony and may be sentenced to
imprisonment for not more than 15 years or to payment of a fine of not more than $40,000,
or both, if:
new text end

new text begin (1) the person has a prior conviction or delinquency adjudication for violating this section
or section 617.247;
new text end

new text begin (2) the violation occurs when the person is a registered predatory offender under section
243.166; or
new text end

new text begin (3) the violation involved a minor under the age of 13 years.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2018, and applies to crimes
committed on or after that date.
new text end

Sec. 4.

Minnesota Statutes 2016, section 617.246, subdivision 3, is amended to read:

Subd. 3.

Operation or ownership of business.

new text begin (a) new text end A person who owns or operates a
business in which a pornographic work, as defined in this section, is disseminated to an
adult or a minor or is reproduced, and who knows the content and character of the
pornographic work disseminated or reproduced, is guilty of a felony and may be sentenced
to imprisonment for not more than ten years, or to payment of a fine of not more than
$20,000 deleted text begin for the first offense and $40,000 for a second or subsequent offense deleted text end , or both.

new text begin (b) A person who violates paragraph (a) is guilty of a felony and may be sentenced to
imprisonment for not more than 15 years or to payment of a fine of not more than $40,000,
or both, if:
new text end

new text begin (1) the person has a prior conviction or delinquency adjudication for violating this section
or section 617.247;
new text end

new text begin (2) the violation occurs when the person is a registered predatory offender under section
243.166; or
new text end

new text begin (3) the violation involved a minor under the age of 13 years.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2018, and applies to crimes
committed on or after that date.
new text end

Sec. 5.

Minnesota Statutes 2016, section 617.246, subdivision 4, is amended to read:

Subd. 4.

Dissemination.

new text begin (a) new text end A person who, knowing or with reason to know its content
and character, disseminates for profit to an adult or a minor a pornographic work, as defined
in this section, is guilty of a felony and may be sentenced to imprisonment for not more
than ten years, or to payment of a fine of not more than $20,000 deleted text begin for the first offense and
$40,000 for a second or subsequent offense deleted text end , or both.

new text begin (b) A person who violates paragraph (a) is guilty of a felony and may be sentenced to
imprisonment for not more than 15 years or to payment of a fine of not more than $40,000,
or both, if:
new text end

new text begin (1) the person has a prior conviction or delinquency adjudication for violating this section
or section 617.247;
new text end

new text begin (2) the violation occurs when the person is a registered predatory offender under section
243.166; or
new text end

new text begin (3) the violation involved a minor under the age of 13 years.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2018, and applies to crimes
committed on or after that date.
new text end

Sec. 6.

Minnesota Statutes 2016, section 617.246, subdivision 7, is amended to read:

Subd. 7.

Conditional release term.

Notwithstanding the statutory maximum sentence
otherwise applicable to the offense or any provision of the sentencing guidelines, when a
court commits a person to the custody of the commissioner of corrections for violating this
section, the court shall provide that after the person has been released from prison, the
commissioner shall place the person on conditional release for five years. If the person has
previously been convicted of a violation of this section, section 609.342, 609.343, 609.344,
609.345, 609.3451, 609.3453, or 617.247, or any similar statute of the United States, this
state, or any state, the commissioner shall place the person on conditional release for deleted text begin ten deleted text end
new text begin 15 new text end years. The terms of conditional release are governed by section 609.3455, subdivision
8.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2018, and applies to crimes
committed on or after that date.
new text end

Sec. 7.

Minnesota Statutes 2016, section 617.247, subdivision 3, is amended to read:

Subd. 3.

Dissemination prohibited.

(a) A person who disseminates pornographic work
to an adult or a minor, knowing or with reason to know its content and character, is guilty
of a felony and may be sentenced to imprisonment for not more than seven years deleted text begin and deleted text end new text begin or to
payment of new text end a fine of not more than $10,000 deleted text begin for a first offense and for not more than 15
years and a fine of not more than $20,000 for a second or subsequent offense deleted text end new text begin , or both new text end .

(b) A person who violates paragraph (a) is guilty of a felony and may be sentenced to
imprisonment for not more than 15 years new text begin or to payment of a fine of not more than $20,000,
or both, new text end if new text begin :
new text end

new text begin (1) the person has a prior conviction or delinquency adjudication for violating this section
or section 617.246;
new text end

new text begin (2) new text end the violation occurs when the person is a registered predatory offender under section
243.166 new text begin ; or
new text end

new text begin (3) the violation involved a minor under the age of 13 years new text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2018, and applies to crimes
committed on or after that date.
new text end

Sec. 8.

Minnesota Statutes 2016, section 617.247, subdivision 4, is amended to read:

Subd. 4.

Possession prohibited.

(a) A person who possesses a pornographic work or a
computer disk or computer or other electronic, magnetic, or optical storage system or a
storage system of any other type, containing a pornographic work, knowing or with reason
to know its content and character, is guilty of a felony and may be sentenced to imprisonment
for not more than five years deleted text begin and deleted text end new text begin or to payment of new text end a fine of not more than $5,000 deleted text begin for a first
offense and for not more than ten years and a fine of not more than $10,000 for a second
or subsequent offense deleted text end new text begin , or both new text end .

(b) A person who violates paragraph (a) is guilty of a felony and may be sentenced to
imprisonment for not more than ten years new text begin or to payment of a fine of not more than $10,000,
or both, new text end if new text begin :
new text end

new text begin (1) the person has a prior conviction or delinquency adjudication for violating this section
or section 617.246;
new text end

new text begin (2) new text end the violation occurs when the person is a registered predatory offender under section
243.166 new text begin ; or
new text end

new text begin (3) the violation involved a minor under the age of 13 years new text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2018, and applies to crimes
committed on or after that date.
new text end

Sec. 9.

Minnesota Statutes 2016, section 617.247, subdivision 9, is amended to read:

Subd. 9.

Conditional release term.

Notwithstanding the statutory maximum sentence
otherwise applicable to the offense or any provision of the sentencing guidelines, when a
court commits a person to the custody of the commissioner of corrections for violating this
section, the court shall provide that after the person has been released from prison, the
commissioner shall place the person on conditional release for five years. If the person has
previously been convicted of a violation of this section, section 609.342, 609.343, 609.344,
609.345, 609.3451, 609.3453, or 617.246, or any similar statute of the United States, this
state, or any state, the commissioner shall place the person on conditional release for deleted text begin ten deleted text end
new text begin 15 new text end years. The terms of conditional release are governed by section 609.3455, subdivision
8.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2018, and applies to crimes
committed on or after that date.
new text end

Sec. 10. new text begin SENTENCING GUIDELINES MODIFICATION.
new text end

new text begin The Sentencing Guidelines Commission shall comprehensively review and consider
modifying how the Sentencing Guidelines and the sex offender grid address the crimes
described in Minnesota Statutes, sections 617.246 and 617.247, as compared to similar
crimes, including other sex offenses and other offenses with similar maximum penalties.
new text end