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SF 3172

1st Engrossment - 90th Legislature (2017 - 2018) Posted on 03/23/2018 09:06am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 1st Engrossment

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A bill for an act
relating to human services; permitting legal parent to petition for reestablishment
of the legal parent and child relationship; prohibiting disqualification of individuals
subject to human services background studies with expunged criminal records;
amending Minnesota Statutes 2016, sections 245C.14; 245C.15, by adding a
subdivision; 245C.22, by adding a subdivision; 245C.24, by adding a subdivision;
260C.329, subdivisions 3, 7, 8; Minnesota Statutes 2017 Supplement, section
245C.16, subdivision 1; repealing Minnesota Statutes 2016, section 260C.329,
subdivision 5.

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

Section 1.

Minnesota Statutes 2016, section 245C.14, is amended to read:


245C.14 DISQUALIFICATION.

Subdivision 1.

Disqualification from direct contact.

(a) The commissioner shall
disqualify an individual who is the subject of a background study from any position allowing
direct contact with persons receiving services from the license holder or entity identified in
section 245C.03, upon receipt of information showing, or when a background study
completed under this chapter shows any of the following:

(1) a conviction of, admission to, or Alford plea to one or more crimes listed in section
245C.15, regardless of whether the conviction or admission is a felony, gross misdemeanor,
or misdemeanor level crime;

(2) a preponderance of the evidence indicates the individual has committed an act or
acts that meet the definition of any of the crimes listed in section 245C.15, regardless of
whether the preponderance of the evidence is for a felony, gross misdemeanor, or
misdemeanor level crime; or

(3) an investigation results in an administrative determination listed under section
245C.15, subdivision 4, paragraph (b).

(b) No individual who is disqualified following a background study under section
245C.03, subdivisions 1 and 2, may be retained in a position involving direct contact with
persons served by a program or entity identified in section 245C.03, unless the commissioner
has provided written notice under section 245C.17 stating that:

(1) the individual may remain in direct contact during the period in which the individual
may request reconsideration as provided in section 245C.21, subdivision 2;

(2) the commissioner has set aside the individual's disqualification for that program or
entity identified in section 245C.03, as provided in section 245C.22, subdivision 4; or

(3) the license holder has been granted a variance for the disqualified individual under
section 245C.30.

new text begin (c) The commissioner shall not disqualify an individual under this subdivision based on
(1) a record of conviction that was expunged under chapter 609A and the order was directed
specifically to the commissioner, or (2) any underlying fact or element from an expunged
record of an arrest, criminal charge, or conviction and the order was directed specifically
to the commissioner. Nothing in this paragraph prohibits the commissioner from disqualifying
an individual based upon a separate administrative determination under section 245C.15,
subdivision 4, paragraph (b), unless there is a court order directed specifically to the
commissioner to expunge an administrative order.
new text end

Subd. 2.

Disqualification from access.

(a) If an individual who is studied under section
245C.03, subdivision 1, paragraph (a), clauses (2), (5), and (6), is disqualified from direct
contact under subdivision 1, the commissioner shall also disqualify the individual from
access to a person receiving services from the license holder.

(b) No individual who is disqualified following a background study under section
245C.03, subdivision 1, paragraph (a), clauses (2), (5), and (6), or as provided elsewhere
in statute who is disqualified as a result of this section, may be allowed access to persons
served by the program unless the commissioner has provided written notice under section
245C.17 stating that:

(1) the individual may remain in direct contact during the period in which the individual
may request reconsideration as provided in section 245C.21, subdivision 2;

(2) the commissioner has set aside the individual's disqualification for that licensed
program or entity identified in section 245C.03 as provided in section 245C.22, subdivision
4
; or

(3) the license holder has been granted a variance for the disqualified individual under
section 245C.30.

new text begin (c) The commissioner shall not disqualify an individual under this subdivision based on
(1) a record of conviction that was expunged under chapter 609A and the order was directed
specifically to the commissioner, or (2) any underlying fact or element from an expunged
record of an arrest, criminal charge, or conviction and the order was directed specifically
to the commissioner. Nothing in this paragraph prohibits the commissioner from disqualifying
an individual based upon a separate administrative determination under section 245C.15,
subdivision 4, paragraph (b), unless there is a court order directed specifically to the
commissioner to expunge an administrative order.
new text end

Sec. 2.

Minnesota Statutes 2016, section 245C.15, is amended by adding a subdivision to
read:


new text begin Subd. 6. new text end

new text begin Expunged criminal records. new text end

new text begin The commissioner shall not disqualify an
individual subject to a background study under this chapter based on (1) a record of
conviction that was expunged under chapter 609A and the order was directed specifically
to the commissioner, or (2) any underlying fact or element from an expunged record of an
arrest, criminal charge, or conviction and the order was directed specifically to the
commissioner. Nothing in this subdivision prohibits the commissioner from disqualifying
an individual based upon a separate administrative determination under section 245C.15,
subdivision 4, paragraph (b), unless there is a court order directed specifically to the
commissioner to expunge an administrative order.
new text end

Sec. 3.

Minnesota Statutes 2017 Supplement, section 245C.16, subdivision 1, is amended
to read:


Subdivision 1.

Determining immediate risk of harm.

(a) If the commissioner determines
that the individual studied has a disqualifying characteristic, the commissioner shall review
the information immediately available and make a determination as to the subject's immediate
risk of harm to persons served by the program where the individual studied will have direct
contact with, or access to, people receiving services.

(b) The commissioner shall consider all relevant information available, including the
following factors in determining the immediate risk of harm:

(1) the recency of the disqualifying characteristic;

(2) the recency of discharge from probation for the crimes;

(3) the number of disqualifying characteristics;

(4) the intrusiveness or violence of the disqualifying characteristic;

(5) the vulnerability of the victim involved in the disqualifying characteristic;

(6) the similarity of the victim to the persons served by the program where the individual
studied will have direct contact;

(7) whether the individual has a disqualification from a previous background study that
has not been set aside; and

(8) if the individual has a disqualification which may not be set aside because it is a
permanent bar under section 245C.24, subdivision 1, or the individual is a child care staff
person who has a felony-level conviction for a drug-related offense in the last five years,
the commissioner may order the immediate removal of the individual from any position
allowing direct contact with, or access to, persons receiving services from the program.

(c) This section does not apply when the subject of a background study is regulated by
a health-related licensing board as defined in chapter 214, and the subject is determined to
be responsible for substantiated maltreatment under section 626.556 or 626.557.

(d) This section does not apply to a background study related to an initial application
for a child foster care license.

(e) Except for paragraph deleted text begin(f)deleted text endnew text begin (g)new text end, this section does not apply to a background study that
is also subject to the requirements under section 256B.0659, subdivisions 11 and 13, for a
personal care assistant or a qualified professional as defined in section 256B.0659,
subdivision 1
.

new text begin (f) This section does not apply if the subject of a background study has a conviction that
was expunged under chapter 609A and the order was directed specifically to the
commissioner, or any underlying fact or element from an expunged record of an arrest,
criminal charge, or conviction and the order was directed specifically to the commissioner.
Nothing in this paragraph prohibits the commissioner from disqualifying an individual based
upon a separate administrative determination under section 245C.15, subdivision 4, paragraph
(b), unless there is a court order directed specifically to the commissioner to expunge an
administrative order.
new text end

deleted text begin (f)deleted text endnew text begin (g)new text end If the commissioner has reason to believe, based on arrest information or an active
maltreatment investigation, that an individual poses an imminent risk of harm to persons
receiving services, the commissioner may order that the person be continuously supervised
or immediately removed pending the conclusion of the maltreatment investigation or criminal
proceedings.

Sec. 4.

Minnesota Statutes 2016, section 245C.22, is amended by adding a subdivision to
read:


new text begin Subd. 8. new text end

new text begin Expunged records. new text end

new text begin This section does not apply if the subject of a background
study has a conviction that was expunged under chapter 609A, and the order was directed
specifically to the commissioner, or any underlying fact or element from an expunged record
of an arrest, criminal charge, or conviction and the order was directed specifically to the
commissioner. Nothing in this subdivision prohibits the commissioner from disqualifying
an individual based upon a separate administrative determination under section 245C.15,
subdivision 4, paragraph (b), unless there is a court order directed specifically to the
commissioner to expunge an administrative order.
new text end

Sec. 5.

Minnesota Statutes 2016, section 245C.24, is amended by adding a subdivision to
read:


new text begin Subd. 5. new text end

new text begin Expunged criminal records. new text end

new text begin The commissioner shall not disqualify an
individual subject to a background study under this chapter based on (1) a record of
conviction that was expunged under chapter 609A and the order was directed specifically
to the commissioner, or (2) any underlying fact or element from an expunged record of an
arrest, criminal charge, or conviction and the order was directed specifically to the
commissioner. Nothing in this subdivision prohibits the commissioner from disqualifying
an individual based upon a separate administrative determination under section 245C.15,
subdivision 4, paragraph (b), unless there is a court order directed specifically to the
commissioner to expunge an administrative order.
new text end

Sec. 6.

Minnesota Statutes 2016, section 260C.329, subdivision 3, is amended to read:


Subd. 3.

Petition.

deleted text beginOnly the county attorneydeleted text endnew text begin A legal parentnew text end may file a petition for the
reestablishment of the legal parent and child relationship. A petition for the reestablishment
of the legal parent and child relationship may be filed when:

(1) deleted text beginboth the responsible social services agency and the county attorney agree that
deleted text end reestablishment of the legal parent and child relationship is in the child's best interests;

(2) the parent has corrected the conditions that led to an order terminating parental rights;

(3) the parent is willing and has the capability to provide day-to-day care and maintain
the health, safety, and welfare of the child;

(4) the child has been in foster care for at least deleted text begin36deleted text endnew text begin 24new text end months after the court issued the
order terminating parental rights;

deleted text begin (5) the child is 15 years of age or older at the time the petition for reestablishment of
the legal parent and child relationship is filed;
deleted text end

deleted text begin (6)deleted text endnew text begin (5)new text end the child has not been adopted; and

deleted text begin (7)deleted text endnew text begin (6)new text end the child is not the subject of a written adoption placement agreement between
the responsible social services agency and the prospective adoptive parent, as required under
Minnesota Rules, part 9560.0060, subpart 2.

Sec. 7.

Minnesota Statutes 2016, section 260C.329, subdivision 7, is amended to read:


Subd. 7.

Service of petition on the parties.

The petition for the reestablishment of the
legal parent and child relationship and notice of hearing on the petition must be served on:

(1) the child;

deleted text begin (2) the parent whose rights have been terminated and with whom the legal parent and
child relationship is proposed to be reestablished;
deleted text end

new text begin (2) the county attorney;
new text end

new text begin (3) the responsible social services agency;
new text end

deleted text begin (3)deleted text endnew text begin (4)new text end the child's guardian ad litem; and

deleted text begin (4)deleted text endnew text begin (5)new text end the child's tribe if the child is subject to the Indian Child Welfare Act.

Sec. 8.

Minnesota Statutes 2016, section 260C.329, subdivision 8, is amended to read:


Subd. 8.

Hearing.

The court may grant the petition ordering the reestablishment of the
legal parent and child relationship only if it finds by clear and convincing evidence that:

(1) reestablishment of the legal parent and child relationship is in the child's best interests;

deleted text begin (2) the child is 15 years of age or older;
deleted text end

deleted text begin (3)deleted text endnew text begin (2)new text end the child has not been adopted;

deleted text begin (4)deleted text endnew text begin (3)new text end the child is not the subject of a written adoption placement agreement between
the responsible social services agency and the prospective adoptive parent, as required under
Minnesota Rules, part 9560.0060, subpart 2;

deleted text begin (5)deleted text endnew text begin (4)new text end at least deleted text begin36deleted text endnew text begin 24new text end months have elapsed following a final order terminating parental
rights and the child remains in foster care;

deleted text begin (6)deleted text endnew text begin (5)new text end the child desires to reside with the parent;

deleted text begin (7)deleted text endnew text begin (6)new text end the parent has corrected the conditions that led to an order terminating parental
rights; and

deleted text begin (8)deleted text endnew text begin (7)new text end the parent is willing and has the capability to provide day-to-day care and maintain
the health, safety, and welfare of the child.

Sec. 9. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2016, section 260C.329, subdivision 5, new text end new text begin is repealed.
new text end

APPENDIX

Repealed Minnesota Statutes: S3172-1

260C.329 REESTABLISHMENT OF THE LEGAL PARENT AND CHILD RELATIONSHIP.

Subd. 5.

Decision not appealable.

The decision by the county attorney not to file a petition for the reestablishment of legal parent and child relationship is not appealable.