SF 813

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to children; modifying the definition of 
  1.3             family under the MinnesotaCare program; providing for 
  1.4             transfer of custody of a child to a relative by a 
  1.5             consent decree; authorizing communication or contact 
  1.6             agreements between adoptive parents and birth parents; 
  1.7             providing for a relative conference and relative care 
  1.8             agreement following a report of child abuse or 
  1.9             neglect; creating a pilot project; appropriating 
  1.10            money; amending Minnesota Statutes 1996, sections 
  1.11            119B.01, subdivision 10; 256.9366, subdivision 3; 
  1.12            257.02; 259.59 by adding a subdivision; 260.191, 
  1.13            subdivision 3b; 260.241, subdivision 1; and 518.158; 
  1.14            proposing coding for new law in Minnesota Statutes, 
  1.15            chapters 257; 259; and 626. 
  1.16  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.17     Section 1.  Minnesota Statutes 1996, section 119B.01, 
  1.18  subdivision 10, is amended to read: 
  1.19     Subd. 10.  [FAMILY.] (a) "Family" means parents, 
  1.20  stepparents, guardians and their spouses, or other eligible 
  1.21  relative caretakers and their spouses, and their blood related 
  1.22  dependent children and adoptive siblings under the age of 18 
  1.23  years living in the same home including children temporarily 
  1.24  absent from the household in settings such as schools, foster 
  1.25  care, and residential treatment facilities.  When a minor parent 
  1.26  or parents and his, her, or their child or children are living 
  1.27  with other relatives, and the minor parent or parents apply for 
  1.28  a child care subsidy, "family" means only the minor parent or 
  1.29  parents and the child or children.  An adult may be considered a 
  1.30  dependent member of the family unit if 50 percent of the adult's 
  2.1   support is being provided by the parents, stepparents, guardians 
  2.2   and their spouses, or eligible relative caretakers and their 
  2.3   spouses, residing in the same household.  An adult age 18 who is 
  2.4   a full-time high school student and can reasonably be expected 
  2.5   to graduate before age 19 may be considered a dependent member 
  2.6   of the family unit. 
  2.7      (b) "Family" also means a relative and the relative's own 
  2.8   children and dependent siblings residing in the same household, 
  2.9   and the child or children who are residing in the same household 
  2.10  and of whom the relative has either: 
  2.11     (1) legal and physical custody under section 257.0215; or 
  2.12     (2) sole legal custody under a relative care agreement 
  2.13  under section 626.5565. 
  2.14     Sec. 2.  Minnesota Statutes 1996, section 256.9366, 
  2.15  subdivision 3, is amended to read: 
  2.16     Subd. 3.  [FAMILIES WITH CHILDREN.] (a) For purposes of 
  2.17  sections 256.9366 to 256.9369, a "family with children" means a 
  2.18  parent or parents and their children, or legal guardians and 
  2.19  their wards who are children, and dependent siblings, residing 
  2.20  in the same household.  The term includes children and dependent 
  2.21  siblings who are temporarily absent from the household in 
  2.22  settings such as schools, camps, or visitation with noncustodial 
  2.23  parents.  For purposes of this section, a "dependent sibling" 
  2.24  means an unmarried child who is a full-time student under the 
  2.25  age of 25 years who is financially dependent upon a parent.  
  2.26  Proof of school enrollment will be is required. 
  2.27     (b) "Family with children" also means a relative and the 
  2.28  relative's own children and dependent siblings residing in the 
  2.29  same household, and the child or children who are residing in 
  2.30  the same household and of whom the relative has either:  
  2.31     (1) legal and physical custody under section 257.0215; or 
  2.32     (2) sole legal custody under a relative care agreement 
  2.33  under section 626.5565. 
  2.34     Sec. 3.  Minnesota Statutes 1996, section 257.02, is 
  2.35  amended to read: 
  2.36     257.02 [SURRENDER OF PARENTAL RIGHTS.] 
  3.1      No person other than the parents or relatives may assume 
  3.2   the permanent care and custody of a child under 14 years of age 
  3.3   unless authorized so to do by an order or decree of court.  
  3.4   However, if a parent of a child who is being cared for by a 
  3.5   relative dies, or if the parent is not or cannot fulfill 
  3.6   parental duties with respect to the child, the relative may 
  3.7   bring a petition under section 260.131.  Except in proceedings 
  3.8   for adoption or by a consent decree entered under section 
  3.9   257.0215, no parent may assign or otherwise transfer to another 
  3.10  parental rights or duties with respect to the permanent care and 
  3.11  custody of a child under 14 years of age.  Any such transfer 
  3.12  shall be void.  
  3.13     Sec. 4.  [257.0215] [CUSTODY CONSENT DECREE.] 
  3.14     A parent may transfer legal and physical custody of a child 
  3.15  to a relative by a consent decree entered under this section.  
  3.16  The court may approve a proposed consent decree if the custody 
  3.17  arrangement is in the best interests of the child and all 
  3.18  parties to the decree agree to it after being fully informed of 
  3.19  its contents.  A consent decree under this section must: 
  3.20     (1) transfer legal and physical custody of the child to a 
  3.21  named relative and state that this includes the ability to 
  3.22  determine the child's residence; make decisions regarding the 
  3.23  child's education, religious training, and health care; and 
  3.24  obtain information and public services on behalf of the child in 
  3.25  the same manner as a parent; 
  3.26     (2) indicate whether the transfer of custody is temporary 
  3.27  or permanent; and 
  3.28     (3) include an order for child support in the guidelines 
  3.29  amount provided by section 518.551, subject to wage withholding 
  3.30  under sections 518.611 and 518.613, and including an order for 
  3.31  medical support under section 518.171. 
  3.32     Either a parent or a relative who is party to a consent 
  3.33  decree under this section may file a motion to modify or 
  3.34  terminate the consent decree at any time.  A party who has 
  3.35  custody of a child under this section must seek modification of 
  3.36  the consent decree before transferring physical or legal custody 
  4.1   of the child to anyone. 
  4.2      For purposes of this section, "relative" means an adult who 
  4.3   is a stepparent, grandparent, brother, sister, uncle, aunt, or 
  4.4   other extended family member of a minor by blood, marriage, or 
  4.5   adoption. 
  4.6      Sec. 5.  [259.58] [COMMUNICATION OR CONTACT AGREEMENTS.] 
  4.7      If an adoptee has resided with a birth parent before being 
  4.8   adopted, adoptive parents and birth parents may enter an 
  4.9   agreement under this section regarding communication with or 
  4.10  contact between a minor adoptee, adoptive parents, and a birth 
  4.11  parent or parents. 
  4.12     (a) An agreement regarding communication with or contact 
  4.13  between minor adoptees, adoptive parents, and a birth parent or 
  4.14  parents is not legally enforceable unless the terms of the 
  4.15  agreement are contained in a written court order entered in 
  4.16  accordance with this section.  An order must be sought at the 
  4.17  same time a petition for adoption is filed.  The court shall not 
  4.18  enter a proposed order unless the terms of the order have been 
  4.19  approved in writing by the prospective adoptive parents, a birth 
  4.20  parent who desires to be a party to the agreement, and, if the 
  4.21  child is in the custody of an agency, a representative of the 
  4.22  agency.  An agreement under this section need not disclose the 
  4.23  identity of the parties to be legally enforceable.  The court 
  4.24  shall not enter a proposed order unless the court finds that the 
  4.25  communication or contact between the minor adoptee, the adoptive 
  4.26  parents, and a birth parent or parents as agreed upon and 
  4.27  contained in the proposed order would be in the minor adoptee's 
  4.28  best interests. 
  4.29     (b) Failure to comply with the terms of an agreed order 
  4.30  regarding communication or contact that has been entered by the 
  4.31  court under this section is not grounds for: 
  4.32     (1) setting aside an adoption decree; or 
  4.33     (2) revocation of a written consent to an adoption after 
  4.34  that consent has become irrevocable. 
  4.35     (c) An agreed order entered under this section may be 
  4.36  enforced by a civil action.  The prevailing party in that action 
  5.1   may be awarded reasonable attorney's fees and costs.  The court 
  5.2   shall not modify an agreed order under this section unless it 
  5.3   finds that the modification is necessary to serve the best 
  5.4   interests of the minor adoptee, and: 
  5.5      (1) the modification is agreed to by the adoptive parent 
  5.6   and the birth parent or parents; or 
  5.7      (2) exceptional circumstances have arisen since the agreed 
  5.8   order was entered that justify modification of the order. 
  5.9      Sec. 6.  Minnesota Statutes 1996, section 259.59, is 
  5.10  amended by adding a subdivision to read: 
  5.11     Subd. 3.  This section does not prohibit birth parents and 
  5.12  adoptive parents from entering a communication or contact 
  5.13  agreement under section 259.58. 
  5.14     Sec. 7.  Minnesota Statutes 1996, section 260.191, 
  5.15  subdivision 3b, is amended to read: 
  5.16     Subd. 3b.  [REVIEW OF COURT ORDERED PLACEMENTS; PERMANENT 
  5.17  PLACEMENT DETERMINATION.] (a) If the court places a child in a 
  5.18  residential facility, as defined in section 257.071, subdivision 
  5.19  1, the court shall conduct a hearing to determine the permanent 
  5.20  status of the child not later than 12 months after the child was 
  5.21  placed out of the home of the parent.  Not later than ten days 
  5.22  prior to this hearing, the responsible social service agency 
  5.23  shall file pleadings to establish the basis for the permanent 
  5.24  placement determination.  Notice of the hearing and copies of 
  5.25  the pleadings must be provided pursuant to section 260.141.  If 
  5.26  a termination of parental rights petition is filed before the 
  5.27  date required for the permanency planning determination, no 
  5.28  hearing need be conducted under this section.  The court shall 
  5.29  determine whether the child is to be returned home or, if not, 
  5.30  what permanent placement is consistent with the child's best 
  5.31  interests.  The "best interests of the child" means all relevant 
  5.32  factors to be considered and evaluated. 
  5.33     If the child is not returned to the home, the dispositions 
  5.34  available for permanent placement determination are: 
  5.35     (1) permanent legal and physical custody to a relative 
  5.36  pursuant to the standards and procedures applicable under 
  6.1   chapter 257 or 518.  The social service agency may petition on 
  6.2   behalf of the proposed custodian; 
  6.3      (2) termination of parental rights and adoption; the social 
  6.4   service agency shall file a petition for termination of parental 
  6.5   rights under section 260.231 and all the requirements of 
  6.6   sections 260.221 to 260.245 remain applicable.  An adoption 
  6.7   ordered under this subdivision may include an agreement for 
  6.8   communication or contact under section 259.58; or 
  6.9      (3) long-term foster care; transfer of legal custody and 
  6.10  adoption are preferred permanency options for a child who cannot 
  6.11  return home.  The court may order a child into long-term foster 
  6.12  care only if it finds that neither an award of legal and 
  6.13  physical custody to a relative, nor termination of parental 
  6.14  rights nor adoption is in the child's best interests.  Further, 
  6.15  the court may only order long-term foster care for the child 
  6.16  under this section if it finds the following: 
  6.17     (i) the child has reached age 12 and reasonable efforts by 
  6.18  the responsible social service agency have failed to locate an 
  6.19  adoptive family for the child; or 
  6.20     (ii) the child is a sibling of a child described in clause 
  6.21  (i) and the siblings have a significant positive relationship 
  6.22  and are ordered into the same long-term foster care home. 
  6.23     (b) The court may extend the time period for determination 
  6.24  of permanent placement to 18 months after the child was placed 
  6.25  in a residential facility if: 
  6.26     (1) there is a substantial probability that the child will 
  6.27  be returned home within the next six months; 
  6.28     (2) the agency has not made reasonable, or, in the case of 
  6.29  an Indian child, active efforts, to correct the conditions that 
  6.30  form the basis of the out-of-home placement; or 
  6.31     (3) extraordinary circumstances exist precluding a 
  6.32  permanent placement determination, in which case the court shall 
  6.33  make written findings documenting the extraordinary 
  6.34  circumstances and order one subsequent review after six months 
  6.35  to determine permanent placement.  A court finding that 
  6.36  extraordinary circumstances exist precluding a permanent 
  7.1   placement determination must be supported by detailed factual 
  7.2   findings regarding those circumstances. 
  7.3      (c) In ordering a permanent placement of a child, the court 
  7.4   must be governed by the best interests of the child, including a 
  7.5   review of the relationship between the child and relatives and 
  7.6   the child and other important persons with whom the child has 
  7.7   resided or had significant contact. 
  7.8      (d) Once a permanent placement determination has been made 
  7.9   and permanent placement has been established, further reviews 
  7.10  are only necessary if otherwise required by federal law, an 
  7.11  adoption has not yet been finalized, or there is a disruption of 
  7.12  the permanent or long-term placement.  If required, reviews must 
  7.13  take place no less frequently than every six months. 
  7.14     (e) An order under this subdivision must include the 
  7.15  following detailed findings: 
  7.16     (1) how the child's best interests are served by the order; 
  7.17     (2) the nature and extent of the responsible social service 
  7.18  agency's reasonable efforts, or, in the case of an Indian child, 
  7.19  active efforts, to reunify the child with the parent or parents; 
  7.20     (3) the parent's or parents' efforts and ability to use 
  7.21  services to correct the conditions which led to the out-of-home 
  7.22  placement; 
  7.23     (4) whether the conditions which led to the out-of-home 
  7.24  placement have been corrected so that the child can return home; 
  7.25  and 
  7.26     (5) if the child cannot be returned home, whether there is 
  7.27  a substantial probability of the child being able to return home 
  7.28  in the next six months.  
  7.29     (f) An order for permanent legal and physical custody of a 
  7.30  child may be modified under sections 518.18 and 518.185.  The 
  7.31  social service agency is a party to the proceeding and must 
  7.32  receive notice.  An order for long-term foster care is 
  7.33  reviewable upon motion and a showing by the parent of a 
  7.34  substantial change in the parent's circumstances such that the 
  7.35  parent could provide appropriate care for the child and that 
  7.36  removal of the child from the child's permanent placement and 
  8.1   the return to the parent's care would be in the best interest of 
  8.2   the child. 
  8.3      Sec. 8.  Minnesota Statutes 1996, section 260.241, 
  8.4   subdivision 1, is amended to read: 
  8.5      Subdivision 1.  If, after a hearing, the court finds by 
  8.6   clear and convincing evidence that one or more of the conditions 
  8.7   set out in section 260.221 exist, it may terminate parental 
  8.8   rights.  Upon the termination of parental rights all rights, 
  8.9   powers, privileges, immunities, duties, and obligations, 
  8.10  including any rights to custody, control, visitation, or support 
  8.11  existing between the child and parent shall be severed and 
  8.12  terminated and the parent shall have no standing to appear at 
  8.13  any further legal proceeding concerning the child.  Provided, 
  8.14  however, that a parent whose parental rights are terminated: 
  8.15     (1) shall remain liable for the unpaid balance of any 
  8.16  support obligation owed under a court order upon the effective 
  8.17  date of the order terminating parental rights; and 
  8.18     (2) may be a party to a communication or contact agreement 
  8.19  under section 259.58.  
  8.20     Sec. 9.  Minnesota Statutes 1996, section 518.158, is 
  8.21  amended to read: 
  8.22     518.158 [GRANDPARENT RELATIVE EX PARTE TEMPORARY CUSTODY 
  8.23  ORDER.] 
  8.24     Subdivision 1.  [FACTORS.] It is presumed to be in the best 
  8.25  interests of the child for the court to grant temporary custody 
  8.26  to a grandparent relative under subdivision 2 if a minor child 
  8.27  has resided with the grandparent relative for a period of 12 
  8.28  months or more and the following circumstances exist without 
  8.29  good cause: 
  8.30     (1) the parent has had no contact with the child on a 
  8.31  regular basis and no demonstrated, consistent participation in 
  8.32  the child's well-being for six months; or 
  8.33     (2) the parent, during the time the child resided with the 
  8.34  grandparent relative, has refused or neglected to comply with 
  8.35  the duties imposed upon the parent by the parent and child 
  8.36  relationship, including but not limited to providing the child 
  9.1   necessary food, clothing, shelter, health care, education, and 
  9.2   other care and control necessary for the child's physical, 
  9.3   mental, or emotional health and development. 
  9.4      Subd. 2.  [EMERGENCY CUSTODY HEARING.] If the parent seeks 
  9.5   to remove the child from the home of the grandparent relative 
  9.6   and the factors in subdivision 1 exist, the grandparent relative 
  9.7   may apply for an ex parte temporary order for custody of the 
  9.8   child.  The court shall grant temporary custody if it finds, 
  9.9   based on the application, that the factors in subdivision 1 
  9.10  exist.  If it finds that the factors in subdivision 1 do not 
  9.11  exist, the court shall order that the child be returned to the 
  9.12  parent.  An ex parte temporary custody order under this 
  9.13  subdivision is good effective for a fixed period not to exceed 
  9.14  14 days.  A temporary custody hearing under this chapter must be 
  9.15  set for not later than seven days after issuance of the ex parte 
  9.16  temporary custody order.  The parent must be promptly served 
  9.17  with a copy of the ex parte order and the petition and notice of 
  9.18  the date for the hearing. 
  9.19     Subd. 3.  [FURTHER PROCEEDINGS.] If the court orders 
  9.20  temporary physical custody to the grandparent relative under 
  9.21  subdivision 2 and the grandparent relative or parent seeks to 
  9.22  pursue further temporary or permanent custody of the child, the 
  9.23  custody issues must be determined pursuant to a petition under 
  9.24  this chapter and the other standards and procedures of this 
  9.25  chapter apply.  This section does not affect any rights or 
  9.26  remedies available under other law. 
  9.27     Subd. 4.  [RETURN TO PARENT.] If the court orders permanent 
  9.28  custody to a grandparent relative under this section, the court 
  9.29  shall set conditions the parent must meet in order to obtain 
  9.30  custody.  The court may notify the parent that the parent may 
  9.31  request assistance from the local social service agency in order 
  9.32  to meet the conditions set by the court. 
  9.33     Subd. 5.  [DEFINITION.] For purposes of this section, 
  9.34  "relative" means an adult who is a stepparent, grandparent, 
  9.35  brother, sister, uncle, aunt, or other extended family member of 
  9.36  the minor by blood, marriage, or adoption.  
 10.1      For an Indian child, "relative" includes members of the 
 10.2   extended family as defined by the law or custom of the Indian 
 10.3   child's tribe or, in the absence of law or custom, nieces, 
 10.4   nephews, or first or second cousins, as provided in the Indian 
 10.5   Child Welfare Act of 1978, United States Code, title 25, section 
 10.6   1903. 
 10.7      Sec. 10.  [626.5565] [RELATIVE CARE AGREEMENT.] 
 10.8      Subdivision 1.  [DEFINITIONS.] (a) For purposes of this 
 10.9   section, "relative" means an adult who is a stepparent, 
 10.10  grandparent, brother, sister, uncle, aunt, or other extended 
 10.11  family member of the minor by blood, marriage, or adoption. 
 10.12     For an Indian child, "relative" includes members of the 
 10.13  extended family as defined by the law or custom of the Indian 
 10.14  child's tribe or, in the absence of law or custom, nieces, 
 10.15  nephews, or first or second cousins, as provided in the Indian 
 10.16  Child Welfare Act of 1978, United States Code, title 25, section 
 10.17  1903. 
 10.18     (b) For purposes of this section, "relative care" means one 
 10.19  or more of the following:  respite care, a monitoring agreement, 
 10.20  a designated parent agreement under chapter 257A, access to 
 10.21  information about a child, the right to make decisions about a 
 10.22  child's residence, education, religious training, or health 
 10.23  care, or joint or sole legal or physical custody of a child. 
 10.24     (c) For purposes of this section, "relative care agreement" 
 10.25  means an agreement regarding the care of a child that has been 
 10.26  reached by the parents and interested relatives of the child 
 10.27  after the parents and interested relatives have participated in 
 10.28  a facilitated relative care conference under this section. 
 10.29     Subd. 2.  [RELATIVE CARE CONFERENCE.] If, upon assessment 
 10.30  of a report of neglect or physical or sexual abuse under section 
 10.31  626.556, a local social service agency determines that child 
 10.32  protective services are needed, the local social service agency 
 10.33  may proceed under this section if it appears from the 
 10.34  circumstances of the individual case that a relative care 
 10.35  agreement may be in the best interests of the child.  The local 
 10.36  social service agency may select a facilitator to convene a 
 11.1   relative care conference.  A facilitator must be certified under 
 11.2   chapter 494. 
 11.3      Written notice of the conference must be provided to the 
 11.4   parents and to all relatives who have expressed an interest in 
 11.5   participating or have been identified by other relatives.  The 
 11.6   notice must state that the purpose of the conference is to 
 11.7   provide an opportunity for the parents and relatives to reach an 
 11.8   agreement regarding the care of the child and explain the forms 
 11.9   of relative care listed in subdivision 1 and the right to seek 
 11.10  foster care licensure if the child is placed out of the home. 
 11.11     The local social service agency shall participate in a 
 11.12  relative care conference for the purposes of protecting the 
 11.13  child's best interests but may not be a party to a relative care 
 11.14  agreement reached by the parents and any participating 
 11.15  relatives.  A relative care agreement remains in effect unless 
 11.16  it expires by its own terms or a parent or a relative who is a 
 11.17  party to the agreement seeks to modify or end the agreement.  If 
 11.18  a relative care agreement involves the removal of a child from 
 11.19  the home, a parent who seeks to have the child returned to the 
 11.20  home of the parent without the consent of the relative with whom 
 11.21  the child is staying has the burden of establishing that: 
 11.22     (1) the conditions that led to the child's placement out of 
 11.23  the home have been corrected; and 
 11.24     (2) the parent has demonstrated the ability to care for and 
 11.25  provide a stable home for the child. 
 11.26     Sec. 11.  [626.5566] [RELATIVE CARE CONFERENCE PILOT 
 11.27  PROGRAM.] 
 11.28     Subdivision 1.  [PILOT PROGRAM.] The commissioner of human 
 11.29  services shall establish a pilot grant program in four counties 
 11.30  to encourage counties to use a facilitated relative care 
 11.31  conference to assist relatives in reaching a relative care 
 11.32  agreement under section 626.5565 regarding the care of a child 
 11.33  for whom: 
 11.34     (1) the county agency has made an assessment of a report of 
 11.35  neglect or physical or sexual abuse under section 626.556 and 
 11.36  has made a determination that child protective services are 
 12.1   needed; and 
 12.2      (2) it appears to the county agency that a relative care 
 12.3   agreement may be in the best interests of the child. 
 12.4      Subd. 2.  [PILOT SITES.] Interested county agencies shall 
 12.5   submit an application to the commissioner to be included in the 
 12.6   pilot program.  Participating counties must use the technical 
 12.7   assistance provided by the commissioner to train individuals as 
 12.8   conference facilitators.  Grant funds must be targeted to an 
 12.9   urban county, a suburban county, a rural county, and a county 
 12.10  that contains a city that is a regional center. 
 12.11     Subd. 3.  [USES OF GRANT FUNDS.] A county must use its 
 12.12  grant funds to support the implementation of a relative care 
 12.13  conference program in the county, including, but not limited to: 
 12.14     (1) training individuals as relative care conference 
 12.15  facilitators; 
 12.16     (2) providing, up to the limit of available grant funds, 
 12.17  services or supports that were identified and agreed upon by the 
 12.18  conference participants as needed to assist the parents and 
 12.19  relatives in achieving the terms of a relative care agreement. 
 12.20     Subd. 4.  [REPORT ON PILOT PROGRAM.] The commissioner shall 
 12.21  report to the chairs of the house and senate judiciary 
 12.22  committees on the participating counties' experiences with the 
 12.23  pilot program.  The report must include, at a minimum, 
 12.24  information on the number of families served, the 
 12.25  characteristics of the relatives who were involved in the 
 12.26  relative care conferences and agreements, the triggering events 
 12.27  in the families that brought them to a relative care conference, 
 12.28  and whether the children were kept out of foster care placements 
 12.29  after a relative care agreement was obtained. 
 12.30     Sec. 12.  [APPROPRIATION.] 
 12.31     $....... is appropriated from the general fund to the 
 12.32  commissioner of human services for the biennium ending June 30, 
 12.33  1999, for the purposes of the relative care conference pilot 
 12.34  program under section 626.5566. 
 12.35     Sec. 13.  [EFFECTIVE DATE.] 
 12.36     Section 1 is effective for applications received on or 
 13.1   after July 1, 1997.  Sections 2 to 11 are effective July 1, 1997.