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Minnesota Legislature

Office of the Revisor of Statutes

SF 834

1st Engrossment - 88th Legislature (2013 - 2014) Posted on 05/07/2013 10:06am

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

Current Version - 1st Engrossment

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A bill for an act
relating to judiciary; modifying certain provisions relating to the State Guardian
Ad Litem Board; amending Minnesota Statutes 2012, sections 260B.163,
subdivision 6; 260B.331, subdivision 6; 260C.163, subdivision 5; 260C.331,
subdivision 6; 480.35, subdivisions 1, 2; 518.165, subdivisions 1, 3.

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

Section 1.

Minnesota Statutes 2012, section 260B.163, subdivision 6, is amended to
read:


Subd. 6.

Guardian ad litem.

(a) The court shall appoint a guardian ad litem to
protect the interests of the minor when it appears, at any stage of the proceedings, that the
minor is without a parent or guardian, or that the minor's parent is a minor or incompetent,
or that the parent or guardian is indifferent or hostile to the minor's interests. In any
other case the court may appoint a guardian ad litem to protect the interests of the minor
when the court feels that such an appointment is desirable. The court shall appoint the
guardian ad litem on its own motion or in the manner provided for the appointment of
a guardian ad litem in the district court. The court may appoint separate counsel for the
guardian ad litem if necessary.

(b) A guardian ad litem shall carry out the following responsibilities:

(1) conduct an independent investigation to determine the facts relevant to the
situation of the child and the family, which must include, unless specifically excluded by
the court, reviewing relevant documents; meeting with and observing the child in the
home setting and considering the child's wishes, as appropriate; and interviewing parents,
caregivers, and others with knowledge relevant to the case;

(2) advocate for the child's best interests by participating in appropriate aspects of
the case and advocating for appropriate community services when necessary;

(3) maintain the confidentiality of information related to a case, with the exception
of sharing information as permitted by law to promote cooperative solutions that are
in the best interests of the child;

(4) monitor the child's best interests throughout the judicial proceeding; and

(5) present written reports on the child's best interests that include conclusions and
recommendations and the facts upon which they are based.

(c) The court may waive the appointment of a guardian ad litem pursuant to
paragraph (a), whenever counsel has been appointed pursuant to subdivision 2 or is
retained otherwise, and the court is satisfied that the interests of the minor are protected.

(d) In appointing a guardian ad litem pursuant to paragraph (a), the court shall not
appoint the partydeleted text begin, or any agent or employee thereof,deleted text end filing a petition pursuant to section
260B.141 and 260C.141.

(e) The following factors shall be considered when appointing a guardian ad litem in
a case involving an Indian or minority child:

(1) whether a person is available who is the same racial or ethnic heritage as the
child or, if that is not possible;

(2) whether a person is available who knows and appreciates the child's racial or
ethnic heritage.

(f) The court shall require a background study for each guardian ad litem as provided
under section 518.165. The court shall have access to data collected pursuant to section
245C.32 for purposes of the background study.

Sec. 2.

Minnesota Statutes 2012, section 260B.331, subdivision 6, is amended to read:


Subd. 6.

Guardian ad litem fees.

(a) In proceedings in which the court appoints a
guardian ad litem pursuant to section 260B.163, subdivision 6, paragraph (a), the court
may inquire into the ability of the parents to pay for the guardian ad litem's services and,
after giving the parents a reasonable opportunity to be heard, may order the parents to
pay guardian new text beginad litem new text endfees.

(b) In each fiscal year, the commissioner of management and budget shall deposit
guardian ad litem reimbursements in the special revenue fund and credit them to a
separate account with the State Guardian Ad Litem Board. The balance of this account is
appropriated to the State Guardian Ad Litem Board and does not cancel but is available
until expended. Revenue from this account must be spent in the judicial district in which
the reimbursement is collected.

Sec. 3.

Minnesota Statutes 2012, section 260C.163, subdivision 5, is amended to read:


Subd. 5.

Guardian ad litem.

(a) The court shall appoint a guardian ad litem to
protect the interests of the minor when it appears, at any stage of the proceedings, that the
minor is without a parent or guardian, or that the minor's parent is a minor or incompetent,
or that the parent or guardian is indifferent or hostile to the minor's interests, and in every
proceeding alleging a child's need for protection or services under section 260C.007,
subdivision 6
, except proceedings where the sole allegation is that the child is a runaway
or habitual truant. In any other case the court may appoint a guardian ad litem to protect
the interests of the minor when the court feels that such an appointment is desirable. The
court shall appoint the guardian ad litem on its own motion or in the manner provided
for the appointment of a guardian ad litem in the district court. The court may appoint
separate counsel for the guardian ad litem if necessary.

(b) A guardian ad litem shall carry out the following responsibilities:

(1) conduct an independent investigation to determine the facts relevant to the
situation of the child and the family, which must include, unless specifically excluded by
the court, reviewing relevant documents; meeting with and observing the child in the
home setting and considering the child's wishes, as appropriate; and interviewing parents,
caregivers, and others with knowledge relevant to the case;

(2) advocate for the child's best interests by participating in appropriate aspects of
the case and advocating for appropriate community services when necessary;

(3) maintain the confidentiality of information related to a case, with the exception
of sharing information as permitted by law to promote cooperative solutions that are
in the best interests of the child;

(4) monitor the child's best interests throughout the judicial proceeding; and

(5) present written reports on the child's best interests that include conclusions and
recommendations and the facts upon which they are based.

(c) Except in cases where the child is alleged to have been abused or neglected,
the court may waive the appointment of a guardian ad litem pursuant to paragraph (a),
whenever counsel has been appointed pursuant to subdivision 2 or is retained otherwise,
and the court is satisfied that the interests of the minor are protected.

(d) In appointing a guardian ad litem pursuant to paragraph (a), the court shall not
appoint the partydeleted text begin, or any agent or employee thereof,deleted text end filing a petition pursuant to section
260C.141.

(e) The following factors shall be considered when appointing a guardian ad litem in
a case involving an Indian or minority child:

(1) whether a person is available who is the same racial or ethnic heritage as the
child or, if that is not possible;

(2) whether a person is available who knows and appreciates the child's racial or
ethnic heritage.

(f) The court shall require a background study for each guardian ad litem as provided
under section 518.165. The court shall have access to data collected pursuant to section
245C.32 for purposes of the background study.

Sec. 4.

Minnesota Statutes 2012, section 260C.331, subdivision 6, is amended to read:


Subd. 6.

Guardian ad litem fees.

(a) In proceedings in which the court appoints a
guardian ad litem pursuant to section 260C.163, subdivision 5, clause (a), the court may
inquire into the ability of the parents to pay for the guardian ad litem's services and,
after giving the parents a reasonable opportunity to be heard, may order the parents to
pay guardian new text beginad litem new text endfees.

(b) In each fiscal year, the commissioner of management and budget shall deposit
guardian ad litem reimbursements in the special revenue fund and credit them to a
separate account with the State Guardian Ad Litem Board. The balance of this account is
appropriated to the State Guardian Ad Litem Board and does not cancel but is available
until expended. Revenue from this account must be spent in the judicial district in which
the reimbursement is collected.

Sec. 5.

Minnesota Statutes 2012, section 480.35, subdivision 1, is amended to read:


Subdivision 1.

Structure; membership.

(a) The State Guardian Ad Litem Board is
established in the judicial branch. The board is not subject to the administrative control
of the judiciary. The State Guardian Ad Litem Board shall consist of seven members
including:

(1) three members appointed by the Supreme Court, at least one of whom must have
former guardian ad litem experience, and who include two attorneys admitted to practice
law in the state and one public member; and

(2) four members appointed by the governor.

The appointing authorities may not appoint an active judge to be a member of
the State Guardian Ad Litem Board, but may appoint a retired judge. The appointing
authorities may not appoint a registered lobbyist to be a member of the State Guardian Ad
Litem Board.

(b) All candidates shall demonstrate an interest in maintaining a high quality,
independent guardian ad litem program for the advocacy of the best interests of children
as required in juvenile and family court. The candidates shall be well acquainted with the
guardian ad litem program, as well as laws that affect a guardian ad litem's work, including
the Minnesota Indian Family Preservation Act under sections 260.751 to 260.835; the
federal Multiethnic Placement Act of 1994 under United States Code, title 42, section 662
and amendments; and the federal Indian Child Welfare Act under United States Code, title
25, section 1901 et seq. At least three members of the board shall be from judicial districts
other than the First, Second, Fourth, and Tenth Judicial Districts. The terms, compensation,
and removal of members shall be as provided in section 15.0575. The deleted text beginSupreme Court shall
appoint
deleted text end new text beginmembers shall elect new text endthe chair from among the membership for a term of two years.

Sec. 6.

Minnesota Statutes 2012, section 480.35, subdivision 2, is amended to read:


Subd. 2.

Duties and responsibilities.

(a) The State Guardian Ad Litem Board shall
create and administer a statewide, independent guardian ad litem program to advocate for
the best interests of children, minor parents, and incompetent adults in juvenile and family
court cases as defined in Rule 901.01 of the Rules of Guardian Ad Litem Procedure in
Juvenile and Family Court matters.

(b) The board shall:

(1) approve and recommend to the legislature a budget for the board and the
guardian ad litem program;

(2) establish procedures for distribution of funding under this section to the guardian
ad litem program; and

(3) establish guardian ad litem program standards, administrative policies,
procedures, and rules consistent with statute, rules of court, and laws that affect a
new text beginvolunteer or employee new text endguardian ad litem's work, including the Minnesota Indian Family
Preservation Act under sections 260.751 to 260.835; the federal Multiethnic Placement
Act of 1994 under United States Code, title 42, section 662 and amendments; and the
federal Indian Child Welfare Act under United States Code, title 25, section 1901 et seq.

(c) The board may:

(1) adopt standards, policies, or procedures necessary to ensure quality advocacy
for the best interests of children;

(2) propose statutory changes to the legislature and rule changes to the Supreme
Court that are in the best interests of children and the operation of the guardian ad litem
program; and

(3) appoint an advisory committee to make recommendations to assist the board in
its duties and to report to the board on issues related to the guardian ad litem program.
The advisory committee shall be subject to the provisions of section 15.059 and shall
expire on June 30, 2014.

Sec. 7.

Minnesota Statutes 2012, section 518.165, subdivision 1, is amended to read:


Subdivision 1.

Permissive appointment of guardian ad litem.

In all proceedings
for child custody or for dissolution or legal separation where custody or parenting time
with a minor child is in issue, the court may appoint a guardian ad litem deleted text beginfrom a panel
established by the court
deleted text end to represent the interests of the child. The guardian ad litem shall
advise the court with respect to custody and parenting time.

Sec. 8.

Minnesota Statutes 2012, section 518.165, subdivision 3, is amended to read:


Subd. 3.

Fees.

(a) deleted text beginA guardian ad litem appointed under either subdivision 1 or 2
may be appointed either as a volunteer or on a fee basis.
deleted text end If a guardian ad litem is appointed
on a fee basis, the court shall enter an order for costs, fees, and disbursements in favor
of the child's guardian ad litem. The order may be made against either or both parties,
except that any part of the costs, fees, or disbursements which the court finds the parties
are incapable of paying shall be borne by the State Guardian Ad Litem Board. deleted text beginThe costs
of court-appointed counsel to the guardian ad litem shall be paid by the State Guardian Ad
Litem Board if a party is incapable of paying for them.
deleted text end In no event may the court order
that costs, fees, or disbursements be paid by a party receiving public assistance or legal
assistance or by a party whose annual income falls below the poverty line as established
under United States Code, title 42, section 9902(2).

(b) In each fiscal year, the commissioner of management and budget shall deposit
guardian ad litem reimbursements in the special revenue fund and credit them to a
separate account with the State Guardian Ad Litem Board. The balance of this account is
appropriated to the State Guardian Ad Litem Board and does not cancel but is available
until expended. Revenue from this account must be spent in the judicial district in which
the reimbursement is collected.