Minnesota Session Laws - 1985, Regular Session

  

                         Laws of Minnesota 1985 

                        CHAPTER 111-H.F.No. 782 
           An act relating to human services; providing for 
          participation by Indian tribes in the placement of 
          their children; proposing coding for new law in 
          Minnesota Statutes, chapter 257. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  [257.35] [CITATION.] 
    Sections 1 to 8 may be cited as the "Minnesota Indian 
family preservation act." 
    Sec. 2.  [257.351] [DEFINITIONS.] 
    Subdivision 1.  [SCOPE.] As used in sections 1 to 8, the 
following terms have the meanings given them. 
    Subd. 2.  [ADMINISTRATIVE REVIEW.] "Administrative review" 
means review under Minnesota Statutes, section 257.071. 
    Subd. 3.  [CHILD PLACEMENT PROCEEDING.] "Child placement 
proceeding" includes a judicial proceeding which could result in 
the following: 
    (a) "Adoptive placement" means the permanent placement of 
an Indian child for adoption, including an action resulting in a 
final decree of adoption. 
    (b) "Involuntary foster care placement" means an action 
removing an Indian child from his or her parents or Indian 
custodian for temporary placement in a foster home, institution, 
or the home of a guardian.  The parent or Indian custodian 
cannot have the child returned upon demand, but parental rights 
have not been terminated. 
    (c) "Preadoptive placement" means the temporary placement 
of an Indian child in a foster home or institution after the 
termination of parental rights, before or instead of adoptive 
placement. 
    (d) "Termination of parental rights" means an action 
resulting in the termination of the parent-child relationship 
under Minnesota Statutes, section 260.221. 
    The terms include placements based upon juvenile status 
offenses, but do not include a placement based upon an act which 
if committed by an adult would be deemed a crime, or upon an 
award of custody in a divorce proceeding to one of the parents. 
    Subd. 4.  [DEMAND.] "Demand" means a written and notarized 
statement signed by a parent or Indian custodian of a child 
which requests the return of the child who has been voluntarily 
placed in foster care. 
    Subd. 5.  [INDIAN.] "Indian" means a person who is a member 
of an Indian tribe or an Alaskan native and a member of a 
regional corporation as defined in section 7 of the Alaska 
Native Claims Settlement Act, United States Code, title 43, 
section 1606. 
    Subd. 6.  [INDIAN CHILD.] "Indian child" means an unmarried 
person who is under age 18 and is: 
    (1) a member of an Indian tribe; or 
    (2) eligible for membership in an Indian tribe. 
    Subd. 7.  [INDIAN CHILD'S TRIBE.] "Indian child's tribe" 
means the Indian tribe in which an Indian child is a member or 
eligible for membership.  In the case of an Indian child who is 
a member of or eligible for membership in more than one tribe, 
the Indian child's tribe is the tribe with which the Indian 
child has the most significant contacts.  If that tribe does not 
express an interest in the outcome of the actions taken under 
sections 1 to 8 with respect to the child, any other tribe in 
which the child is eligible for membership that expresses an 
interest in the outcome may act as the Indian child's tribe. 
    Subd. 8.  [INDIAN CUSTODIAN.] "Indian custodian" means an 
Indian person who has legal custody of an Indian child under 
tribal law or custom or under state law, or to whom temporary 
physical care, custody, and control has been transferred by the 
parent of the child. 
     Subd. 9.  [INDIAN TRIBE.] "Indian tribe" means an Indian 
tribe, band, nation, or other organized group or community of 
Indians recognized as eligible for the services provided to 
Indians by the secretary because of their status as Indians, 
including any band under the Alaska Native Claims Settlement 
Act, United States Code, title 43, section 1602, and exercising 
tribal governmental powers. 
    Subd. 10.  [LOCAL SOCIAL SERVICE AGENCY.] "Local social 
service agency" means the local agency under the authority of 
the county welfare or human services board or county board of 
commissioners which is responsible for human services. 
    Subd. 11.  [PARENT.] "Parent" means the biological parent 
of an Indian child, or any Indian person who has lawfully 
adopted an Indian child, including a person who has adopted a 
child by tribal law or custom.  It does not include an unmarried 
father whose paternity has not been acknowledged or established. 
    Subd. 12.  [PRIVATE CHILD PLACING AGENCY.] "Private child 
placing agency" means a private organization, association, or 
corporation providing assistance to children and parents in 
their own homes and placing children in foster care or for 
adoption. 
    Subd. 13.  [RESERVATION.] "Reservation" means Indian 
country as defined in United States Code, title 18, section 1151 
and any lands which are either held by the United States in 
trust for the benefit of an Indian tribe or individual, or held 
by an Indian tribe or individual subject to a restriction by the 
United States against alienation. 
    Subd. 14.  [SECRETARY.] "Secretary" means the secretary of 
the United States department of the interior. 
    Subd. 15.  [TRIBAL COURT.] "Tribal court" means a court 
with jurisdiction over child custody proceedings which is either 
a court of Indian offenses, or a court established and operated 
under the code or custom of an Indian tribe, or the 
administrative body of a tribe which is vested with authority 
over child custody proceedings. 
    Subd. 16.  [TRIBAL SOCIAL SERVICE AGENCY.] "Tribal social 
service agency" means the unit under authority of the governing 
body of the Indian tribe which is responsible for human services.
    Subd. 17.  [VOLUNTARY FOSTER CARE PLACEMENT.] "Voluntary 
foster care placement" means a decision in which there has been 
participation by a local social service agency or private child 
placing agency resulting in the temporary placement of an Indian 
child away from the home of his or her parents or Indian 
custodian in a foster home, institution, or the home of a 
guardian, and the parent or Indian custodian may have the child 
returned upon demand. 
    Sec. 3.  [257.352] [SOCIAL SERVICE AGENCY AND PRIVATE 
LICENSED CHILD PLACING AGENCY NOTICE TO TRIBES.] 
    Subdivision 1.  [DETERMINATION OF INDIAN CHILD'S 
TRIBE.] The local social service agency or private licensed 
child placing agency shall determine whether a child brought to 
its attention for the purposes described in this section is an 
Indian child and the identity of the Indian child's tribe. 
     Subd. 2.  [AGENCY NOTICE OF POTENTIAL OUT-OF-HOME 
PLACEMENT.] When a local social service agency or private child 
placing agency determines that an Indian child is in a dependent 
or other condition that could lead to an out-of-home placement 
and requires the continued involvement of the agency with the 
child for a period in excess of 30 days, the agency shall send 
notice of the condition and of the initial steps taken to remedy 
it to the Indian child's tribal social service agency within 
seven days of the determination.  At this and any subsequent 
stage of its involvement with an Indian child, the agency shall, 
upon request, give the tribal social service agency full 
cooperation including access to all files concerning the child.  
If the files contain confidential or private data, the agency 
may require execution of an agreement with the tribal social 
service agency that the tribal social service agency shall 
maintain the data according to statutory provisions applicable 
to the data.  
    Subd. 3.  [PRIVATE CHILD PLACING AGENCY NOTICE OF POTENTIAL 
PREADOPTIVE OR ADOPTIVE PLACEMENT.] When a private child placing 
agency determines that an Indian child is in a dependent or 
other condition that could lead to a preadoptive or adoptive 
placement, the agency shall send notice of the condition to the 
Indian child's tribal social service agency within seven days of 
the determination.  The agency shall include in the notice the 
identity of the birthparents and child absent written objection 
by the birthparents.  The private child placing agency shall 
inform the birthparents of the Indian child of any services 
available to the Indian child through the child's tribal social 
service agency, including child placement services, and shall 
additionally provide the birthparents of the Indian child with 
all information sent from the tribal social service agency in 
response to the notice. 
    Subd. 4.  [IDENTIFICATION OF EXTENDED FAMILY MEMBERS.] Any 
agency considering placement of an Indian child shall make 
reasonable efforts to identify and locate extended family 
members. 
    Sec. 4.  [257.353] [VOLUNTARY FOSTER CARE PLACEMENT.] 
    Subdivision 1.  [DETERMINATION OF INDIAN CHILD'S 
TRIBE.] The local social service agency or private licensed 
child placing agency shall determine whether a child brought to 
its attention for the purposes described in this section is an 
Indian child and the identity of the Indian child's tribe. 
    Subd. 2.  [NOTICE.] When an Indian child is voluntarily 
placed in foster care, the local social service agency involved 
in the decision to place the child shall give notice of the 
placement to the child's parents, tribal social service agency, 
and the Indian custodian within seven days of placement, 
excluding weekends and holidays. 
    If a private licensed child placing agency makes a 
temporary voluntary foster care placement pending a decision on 
adoption by a parent, notice of the placement shall be given to 
the child's parents, tribal social service agency, and the 
Indian custodian upon the filing of a petition for termination 
of parental rights or three months following the temporary 
placement, whichever occurs first. 
    At this and any subsequent stage of its involvement with an 
Indian child, the agency shall, upon request, give the tribal 
social service agency full cooperation including access to all 
files concerning the child.  If the files contain confidential 
or private data, the agency may require execution of an 
agreement with the tribal social service agency that the tribal 
social service agency shall maintain the data according to 
statutory provisions applicable to the data. 
    Subd. 3.  [NOTICE OF ADMINISTRATIVE REVIEW.] In an 
administrative review of a voluntary foster care placement, the 
tribal social service agency of the child, the Indian custodian, 
and the parents of the child shall have notice and a right of 
participation in the review.  
    Subd. 4.  [RETURN OF CHILD IN VOLUNTARY PLACEMENT.] Upon 
demand by the parent or Indian custodian of an Indian child, the 
local social service agency or private licensed child placing 
agency shall return the child in voluntary foster care placement 
to the parent or Indian custodian within 24 hours of the receipt 
of the demand.  If the request for return does not satisfy the 
requirement of section 2, subdivision 4, the local social 
service agency or private child placing agency shall immediately 
inform the parent or Indian custodian of the Indian child of the 
requirement. 
    Subd. 5.  [IDENTIFICATION OF EXTENDED FAMILY MEMBERS.] Any 
agency considering placement of an Indian child shall make 
reasonable efforts to identify and locate extended family 
members. 
    Sec. 5.  [257.354] [CHILD PLACEMENT PROCEEDINGS.] 
    Subdivision 1.  [INDIAN TRIBE JURISDICTION.] An Indian 
tribe with a tribal court has exclusive jurisdiction over a 
child placement proceeding involving an Indian child who resides 
within the reservation of such tribe at the commencement of the 
proceedings.  When an Indian child is in the legal custody of a 
person or agency pursuant to an order of a tribal court, the 
Indian tribe retains exclusive jurisdiction, notwithstanding the 
residence or domicile of the child. 
    Subd. 2.  [COURT DETERMINATION OF TRIBAL AFFILIATION OF 
CHILD.] In any child placement proceeding, the court shall 
establish whether an Indian child is involved and the identity 
of the Indian child's tribe. 
    Subd. 3.  [TRANSFER OF PROCEEDINGS.] In a proceeding for 
the termination of parental rights or involuntary foster care 
placement of an Indian child not within the jurisdiction of 
subdivision 1, the court, in the absence of good cause to the 
contrary, shall transfer the proceeding to the jurisdiction of 
the tribe absent objection by either parent, upon the petition 
of either parent or the Indian custodian or the Indian child's 
tribe.  The transfer shall be subject to declination by the 
tribal court of such tribe. 
    Subd. 4.  [EFFECT OF TRIBAL COURT PLACEMENT ORDERS.] To the 
extent that any child subject to sections 1 to 8 is otherwise 
eligible for social services, orders of a tribal court 
concerning placement of such child shall have the same force and 
effect as orders of a court of this state.  In any case where 
the tribal court orders placement through a local social service 
agency, the court shall provide to the local agency notice and 
an opportunity to be heard regarding the placement.  Financial 
responsibility for the placement shall be determined by the 
local social service agency and shall be subject to review by 
the commissioner in accordance with sections 14.01 to 14.69. 
    Sec. 6.  [257.355] [PLACEMENT RECORDS.] 
    The commissioner of human services shall publish annually 
an inventory of all Indian children in residential facilities. 
The inventory shall include, by county and statewide, 
information on legal status, living arrangement, age, sex, tribe 
in which the child is a member or eligible for membership, 
accumulated length of time in foster care, and other demographic 
information deemed appropriate concerning all Indian children in 
residential facilities.  The report must also state the extent 
to which authorized child placing agencies comply with the order 
of preference described in United States Code, title 25, section 
1901, et seq. 
    Sec. 7.  [257.356] [RECORDS; INFORMATION AVAILABILITY.] 
    Subdivision 1.  [COURT DECREE INFORMATION.] A state court 
entering a final decree or order in an Indian child adoptive 
placement shall provide the department of human services and the 
child's tribal social service agency with a copy of the decree 
or order together with such other information to show: 
    (1) the name and tribal affiliation of the child; 
    (2) the names and addresses of the biological parents; 
    (3) the names and addresses of the adoptive parents; and 
    (4) the identity of any agency having files or information 
relating to the adoptive placement. 
    If the court records contain an affidavit of the biological 
or adoptive parent or parents requesting anonymity, the court 
shall delete the name and address of the biological or adoptive 
parents from the information sent to the child's tribal social 
service agency. 
    Subd. 2.  [DISCLOSURE OF RECORDS.] Upon the request of an 
adopted Indian person over the age of 18, the adoptive or foster 
parents of an Indian person, or an Indian tribal social service 
agency, the department of human services shall disclose to the 
Indian person's tribe information necessary for membership of an 
Indian person in the tribe in which the person may be eligible 
for membership or for determining any rights or benefits 
associated with that membership.  When the documents relating to 
the person contain an affidavit from the biological or adoptive 
parent or parents requesting anonymity, the department must use 
the procedures described in United States Code, title 25, 
section 1951, paragraph (b). 
    Sec. 8.  [257.357] [RULE CHANGE.] 
    The commissioner of human services shall amend Minnesota 
Rules, parts 9545.0210 and 9545.0790, to provide that an agency 
that places Indian children shall cooperate with the Indian 
child's tribe in securing placement that is consistent with the 
child's racial or ethnic heritage, as indicated by the policy 
statements in Minnesota Statutes, sections 259.255, and 259.28, 
subdivision 2.  The amendment is not subject to the rulemaking 
provisions of chapter 14, but the commissioner must comply with 
section 14.38, subdivision 7, in adopting the amendment. 
    Approved May 10, 1985