Minnesota Session Laws - 1989, Regular Session

  

                         Laws of Minnesota 1989 

                        CHAPTER 235-S.F.No. 486 
           An act relating to juvenile justice; requiring 
          reasonable efforts to prevent placement of children in 
          need of protection or services proceedings; amending 
          duty of juvenile court to ensure placement prevention 
          and family reunification; defining reasonable efforts; 
          clarifying definitions, jurisdiction, and services for 
          Indian children; requiring preference for racial or 
          ethnic heritage for appointment of guardian ad litem; 
          requiring consideration of reasonable efforts in 
          factors determining neglect; requiring that a child be 
          in imminent danger for detention; permitting social 
          services to release for detention; requiring finding 
          of reasonable efforts at detention; and imposing 
          requirements for disposition case plans; providing for 
          notice to certain grandparents; amending Minnesota 
          Statutes 1988, sections 260.012; 260.015, subdivisions 
          11, 13, 14, and by adding subdivisions; 260.111, by 
          adding a subdivision; 260.135, subdivision 2; 260.141; 
          260.155, subdivisions 4 and 7; 260.165, subdivision 1; 
          260.171, subdivision 1; 260.172, subdivisions 1 and 4; 
          260.173, subdivision 2; 260.181, subdivision 2; 
          260.191, subdivisions 1a and 1e; and 260.231, 
          subdivision 3. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1988, section 260.012, is 
amended to read: 
    260.012 [DUTY OF JUVENILE COURT TO ENSURE PLACEMENT 
PREVENTION AND FAMILY REUNIFICATION; REASONABLE EFFORTS.] 
    (a) If a child in need of protection or services is under 
the court's dependency or neglect jurisdiction, the court shall 
ensure that reasonable efforts including culturally appropriate 
services by the social service 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, 
consistent with the best interests, safety, and protection of 
the child.  In the case of an Indian child, in proceedings under 
sections 260.172, 260.191, and 260.221 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.  If a child is 
under the court's delinquency jurisdiction, it shall be the duty 
of the court to ensure that reasonable efforts are made to 
reunite the child with the child's family at the earliest 
possible time, consistent with the best interests of the child 
and the safety of the public. 
    (b) "Reasonable efforts" means the exercise of due 
diligence by the responsible social service agency to use 
appropriate and available services to meet the needs of the 
child and the child's family in order to prevent removal of the 
child from the child's family; or upon removal, services to 
eliminate the need for removal and reunite the family.  Services 
may include those listed under section 256F.07, subdivision 3, 
and other appropriate services available in the community.  The 
social service agency has the burden of demonstrating that it 
has made reasonable efforts. 
    (c) The juvenile court, in proceedings under sections 
260.172, 260.191, and 260.221 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. 
     (d) This section does not prevent out-of-home placement for 
treatment of a child with a mental disability when 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.
    Sec. 2.  Minnesota Statutes 1988, section 260.015, is 
amended by adding a subdivision to read: 
    Subd. 1a.  "Agency" means the local social service agency 
or a licensed child placing agency. 
    Sec. 3.  Minnesota Statutes 1988, section 260.015, 
subdivision 11, is amended to read: 
    Subd. 11.  "Parent" means the natural or adoptive parent of 
a minor.  For an Indian child, parent includes any Indian person 
who has adopted a child by tribal law or custom, as provided in 
section 257.351, subdivision 11. 
    Sec. 4.  Minnesota Statutes 1988, section 260.015, 
subdivision 13, is amended to read: 
    Subd. 13.  "Relative" means a parent, stepparent, 
grandparent, brother, sister, uncle, or aunt of the minor.  This 
relationship may be by blood or marriage.  For an Indian child, 
relative includes members of the extended family as defined by 
the law or custom of the Indian child's tribe or, in the absence 
of laws or custom, nieces, nephews, or first or second cousins, 
as provided in the Indian Child Welfare Act of 1978, United 
States Code, title 25, section 1903.  For purposes of 
dispositions, relative has the meaning given in section 260.181, 
subdivision 3. 
    Sec. 5.  Minnesota Statutes 1988, section 260.015, 
subdivision 14, is amended to read: 
    Subd. 14.  "Custodian" means any person who is under a 
legal obligation to provide care and support for a minor or who 
is in fact providing care and support for a minor.  For an 
Indian child, custodian means any 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, as 
provided in section 257.351, subdivision 8.  
    Sec. 6.  Minnesota Statutes 1988, section 260.015, is 
amended by adding a subdivision to read: 
    Subd. 26.  [INDIAN.] "Indian," consistent with section 
257.351, subdivision 5, means a person who is a member of an 
Indian tribe or who is 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. 
    Sec. 7.  Minnesota Statutes 1988, section 260.015, is 
amended by adding a subdivision to read: 
    Subd. 27.  [INDIAN CHILD.] "Indian child," consistent with 
section 257.351, subdivision 6, 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. 
    Sec. 8.  Minnesota Statutes 1988, section 260.111, is 
amended by adding a subdivision to read: 
    Subd. 5.  [JURISDICTION OVER INDIAN CHILDREN.] In a child 
in need of protection or services proceeding, when an Indian 
child is a ward of a tribal court with federally recognized 
child welfare jurisdiction, the Indian tribe retains exclusive 
jurisdiction notwithstanding the residence or domicile of an 
Indian child, as provided in the Indian Child Welfare Act of 
1978, United States Code, title 25, section 1911. 
    Sec. 9.  Minnesota Statutes 1988, section 260.135, 
subdivision 2, is amended to read: 
    Subd. 2.  The court shall have notice of the pendency of 
the case and of the time and place of the hearing served upon a 
parent, guardian, or spouse of the child, who has not been 
summoned as provided in subdivision 1.  For an Indian child, 
notice of all proceedings must comply with the Indian Child 
Welfare Act of 1978, United States Code, title 25, section 1901, 
et. seq., and section 257.353. 
    Sec. 10.  Minnesota Statutes 1988, section 260.141, is 
amended by adding a subdivision to read: 
    Subd. 2a.  In any proceeding regarding a child in need of 
protection or services in a state court, where the court knows 
or has reason to know that an Indian child is involved, the 
prosecuting authority seeking the foster care placement of, or 
termination of parental rights to an Indian child, shall notify 
the parent or Indian custodian and the Indian child's tribe of 
the pending proceedings and of their right of intervention.  The 
notice must be provided by registered mail with return receipt 
requested unless personal service is accomplished.  If the 
identity or location of the parent or Indian custodian and the 
tribe cannot be determined, the notice shall be given to the 
Secretary of the Interior of the United States in like manner, 
according to the Indian Child Welfare Act of 1978, United States 
Code, title 25, section 1912.  No foster care placement 
proceeding or termination of parental rights proceeding shall be 
held until at least ten days after receipt of notice by the 
parent or Indian custodian and the tribe or the Secretary.  
However, the parent or Indian custodian or the tribe shall, upon 
request, be granted up to 20 additional days to prepare for the 
proceeding. 
    Sec. 11.  Minnesota Statutes 1988, section 260.155, 
subdivision 4, is amended to read: 
    Subd. 4.  [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 260.015, subdivision 2a, clauses (1) to (10).  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.
     (b) The court may waive the appointment of a guardian ad 
litem pursuant to clause (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. 
     (c) In appointing a guardian ad litem pursuant to clause 
(a), the court shall not appoint the party, or any agent or 
employee thereof, filing a petition pursuant to section 260.131. 
    (d) 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. 
    Sec. 12.  Minnesota Statutes 1988, section 260.155, 
subdivision 7, is amended to read: 
    Subd. 7.  [FACTORS IN DETERMINING NEGLECT.] In determining 
whether a child is neglected and in foster care, the court shall 
consider, among other factors, the following: 
    (1) the length of time the child has been in foster care; 
    (2) the effort the parent has made to adjust circumstances, 
conduct, or condition that necessitates the removal of the child 
to make it in the child's best interest to be returned to the 
parent's home in the foreseeable future, including the use of 
rehabilitative services offered to the parent; 
    (3) whether the parent has visited the child within the 
three months preceding the filing of the petition, unless 
extreme financial or physical hardship or treatment for mental 
disability or chemical dependency or other good cause prevented 
the parent from visiting the child or it was not in the best 
interests of the child to be visited by the parent; 
    (4) the maintenance of regular contact or communication 
with the agency or person temporarily responsible for the child; 
    (5) the appropriateness and adequacy of services provided 
or offered to the parent to facilitate a reunion; 
    (6) whether additional services would be likely to bring 
about lasting parental adjustment enabling a return of the child 
to the parent within an ascertainable period of time, whether 
the services have been offered to the parent, or, if services 
were not offered, the reasons they were not offered; and 
    (7) the nature of the effort efforts made by the 
responsible social service agency to rehabilitate and reunite 
the family, and whether the efforts were reasonable. 
    Sec. 13.  Minnesota Statutes 1988, section 260.165, 
subdivision 1, is amended to read: 
    Subdivision 1.  No child may be taken into immediate 
custody except: 
    (a) With an order issued by the court in accordance with 
the provisions of section 260.135, subdivision 5, or by a 
warrant issued in accordance with the provisions of section 
260.145; or 
    (b) In accordance with the laws relating to arrests; or 
    (c) By a peace officer 
    (1) when a child has run away from a parent, guardian, or 
custodian, or when the peace officer reasonably believes such 
the child has run away from a parent, guardian, or custodian; or 
    (2) when a child is found in surroundings or conditions 
which endanger the child's health or welfare or which such peace 
officer reasonably believes will endanger such the child's 
health or welfare.  If an Indian child is a resident of a 
reservation or is domiciled on a reservation but temporarily 
located off the reservation, the taking of the child into 
custody under this clause shall be consistent with the Indian 
Child Welfare Act of 1978, United States Code, title 25, section 
1922; or 
    (d) By a peace officer or probation or parole officer when 
it is reasonably believed that the child has violated the terms 
of probation, parole, or other field supervision.  
    Sec. 14.  Minnesota Statutes 1988, section 260.171, 
subdivision 1, is amended to read: 
    Subdivision 1.  If a child is taken into custody as 
provided in section 260.165, the parent, guardian, or custodian 
of the child shall be notified as soon as possible.  Unless 
there is reason to believe that the child would endanger self or 
others, not return for a court hearing, run away from the 
child's parent, guardian, or custodian or otherwise not remain 
in the care or control of the person to whose lawful custody the 
child is released, or that the child's health or welfare would 
be immediately endangered, the child shall be released to the 
custody of a parent, guardian, custodian, or other suitable 
person.  When a child is taken into custody by a peace officer 
under section 260.165, subdivision 1, clause (c)(2), release 
from detention may be authorized by the detaining officer, the 
detaining officer's supervisor, or the county attorney.  If the 
social service agency has determined that the child's health or 
welfare will not be endangered and the provision of appropriate 
and available services will eliminate the need for placement, 
the agency shall request authorization for the child's release 
from detention.  That The person to whom the child is released 
shall promise to bring the child to the court, if necessary, at 
the time the court may direct.  If the person taking the child 
into custody believes it desirable, that person may request the 
parent, guardian, custodian, or other person designated by the 
court to sign a written promise to bring the child to court as 
provided above.  The intentional violation of such a promise, 
whether given orally or in writing, shall be punishable as 
contempt of court. 
    The court may require the parent, guardian, custodian, or 
other person to whom the child is released, to post any 
reasonable bail or bond required by the court which shall be 
forfeited to the court if the child does not appear as 
directed.  The court may also release the child on the child's 
own promise to appear in juvenile court. 
    Sec. 15.  Minnesota Statutes 1988, section 260.172, 
subdivision 1, is amended to read: 
    Subdivision 1.  Except a child taken into custody pursuant 
to section 260.165, subdivision 1, clause (a) or (c)(2), a 
hearing shall be held within 36 hours of a child's being taken 
into custody, excluding Saturdays, Sundays, and holidays, to 
determine whether the child should continue in detention.  
Within 72 hours of a child being taken into custody pursuant to 
section 260.165, subdivision 1, clause (a) or (c)(2), excluding 
Saturdays, Sundays, and holidays, a hearing shall be held to 
determine whether the child should continue in custody.  Unless 
there is reason to believe that the child would endanger self or 
others, not return for a court hearing, run away from the 
child's parent, guardian, or custodian or otherwise not remain 
in the care or control of the person to whose lawful custody the 
child is released, or that the child's health or welfare would 
be immediately endangered, the child shall be released to the 
custody of a parent, guardian, custodian, or other suitable 
person.  In a proceeding regarding a child in need of protection 
or services, the court, before determining whether a child 
should continue in custody, shall also make a determination, 
consistent with section 260.012 as to whether reasonable 
efforts, or in the case of an Indian child, active efforts, 
according to the Indian Child Welfare Act of 1978, United States 
Code, title 25, section 1912(d), were made to prevent placement 
or to reunite the child with the child's family, or that 
reasonable efforts were not possible.  The court shall also 
determine whether there are available services that would 
prevent the need for further detention. 
    If the court finds the social services agency's preventive 
or reunification efforts have not been reasonable but further 
preventive or reunification efforts could not permit the child 
to safely remain at home, the court may nevertheless authorize 
or continue the removal of the child. 
    Sec. 16.  Minnesota Statutes 1988, section 260.172, 
subdivision 4, is amended to read: 
    Subd. 4.  If a child held in detention under a court order 
issued under subdivision 2 has not been released prior to 
expiration of the order, the court or referee shall informally 
review the child's case file to determine, under the standards 
provided by subdivision 1, whether detention should be 
continued.  If detention is continued thereafter, informal 
reviews such as these shall be held within every eight days, 
excluding Saturdays, Sundays and holidays, of the child's 
detention. 
    A hearing, rather than an informal review of the child's 
case file, shall be held at the request of any one of the 
parties notified pursuant to subdivision 3, if that party 
notifies the court of a wish to present to the court new 
evidence concerning whether the child should be continued in 
detention or notifies the court of a wish to present an 
alternate placement arrangement to provide for the safety and 
protection of the child. 
    In addition, if a child was taken into detention under 
section 260.135, subdivision 5, or 260.165, subdivision 1, 
clause (c)(2), and is held in detention under a court order 
issued under subdivision 2, the court shall schedule and hold an 
adjudicatory hearing on the petition within 60 days of the 
detention hearing upon the request of any party to the 
proceeding unless.  However, if good cause is shown by a party 
to the proceeding why the hearing should not be held within that 
time period, the hearing shall be held within 90 days, unless 
the parties agree otherwise and the court so orders. 
    Sec. 17.  Minnesota Statutes 1988, section 260.173, 
subdivision 2, is amended to read: 
    Subd. 2.  Notwithstanding the provisions of subdivision 1, 
if the child had been taken into custody pursuant to section 
260.165, subdivision 1, clause (a) or clause (c)(2), or had been 
found in surroundings or conditions reasonably believed to 
endanger the child's health or welfare, and is not alleged to be 
delinquent, the child may shall be detained only in the least 
restrictive setting consistent with the child's health and 
welfare and in closest proximity to the child's family as 
possible.  Placement may be with a child's relative, or in a 
shelter care facility. 
    Sec. 18.  Minnesota Statutes 1988, section 260.181, 
subdivision 2, is amended to read: 
    Subd. 2.  [CONSIDERATION OF REPORTS.] Before making a 
disposition in a case, or terminating parental rights, or 
appointing a guardian for a child the court may consider any 
report or recommendation made by the county welfare board, 
probation officer, or licensed child placing agency, foster 
parent, guardian ad litem, tribal representative, or other 
authorized advocate for the child or child's family, or any 
other information deemed material by the court. 
    Sec. 19.  Minnesota Statutes 1988, section 260.191, 
subdivision 1a, is amended to read: 
    Subd. 1a.  [WRITTEN FINDINGS.] Any order for a disposition 
authorized under this section shall contain written findings of 
fact to support the disposition ordered, and shall also set 
forth in writing the following information: 
    (a) Why the best interests of the child are served by the 
disposition ordered; 
    (b) What alternative dispositions were considered by the 
court and why such dispositions were not appropriate in the 
instant case; and 
    (c) In the case of a child of minority racial or minority 
ethnic heritage, how the court's disposition complies with the 
requirements of section 260.181, subdivision 3.; and 
    (d) Whether reasonable efforts consistent with section 
260.012 were made to prevent or eliminate the necessity of the 
child's removal and to reunify the family after removal.  The 
court's findings must include a brief description of what 
preventive and reunification efforts were made and why further 
efforts could not have prevented or eliminated the necessity of 
removal. 
    If the court finds that the social services agency's 
preventive or reunification efforts have not been reasonable but 
that further preventive or reunification efforts could not 
permit the child to safely remain at home, the court may 
nevertheless authorize or continue the removal of the child.  
    Sec. 20.  Minnesota Statutes 1988, section 260.191, 
subdivision 1e, is amended to read: 
    Subd. 1e.  [CASE PLAN.] For each disposition ordered, the 
court shall order the appropriate agency to prepare a written 
case plan developed after consultation with any foster parents, 
and consultation with and participation by the child and the 
child's parent, guardian, or custodian, guardian ad litem, and 
tribal representative if the tribe has intervened.  The case 
plan shall comply with the requirements of section 257.071, 
where applicable.  The case plan shall, among other matters, 
specify the actions to be taken by the child and the child's 
parent, guardian, foster parent, or custodian to comply with the 
court's disposition order, and the services to be offered and 
provided by the agency to the child and the child's parent, 
guardian, or custodian.  The court shall review the case plan 
and, upon approving it, incorporate the plan into its 
disposition order.  The court may review and modify the terms of 
the case plan in the manner provided in subdivision 2.  For each 
disposition ordered, the written case plan shall specify what 
reasonable efforts shall be provided to the family.  The case 
plan must include a discussion of: 
    (1) the availability of appropriate prevention and 
reunification services for the family to prevent the removal of 
the child from the home or to reunify the child with the family 
after removal; 
    (2) any services or resources that were requested by the 
child or the child's parent, guardian, foster parent, or 
custodian since the date of initial adjudication, and whether 
those services or resources were provided or the basis for 
denial of the services or resources; 
    (3) the need of the child and family for care, treatment, 
or rehabilitation; 
    (4) the need for participation by the parent, guardian, or 
custodian in the plan of care for the child; and 
    (5) a description of any services that could prevent 
placement or reunify the family if such services were available. 
    A party has a right to request a court review of the 
reasonableness of the case plan upon a showing of a substantial 
change of circumstances. 
     Sec. 21.  Minnesota Statutes 1988, section 260.231, 
subdivision 3, is amended to read: 
    Subd. 3.  The court shall have notice of the time, place, 
and purpose of the hearing served on the parents, as defined in 
sections 257.51 to 257.74 or 259.26, subdivision 1, clause (2), 
and upon the child's grandparent if the child has lived with the 
grandparent within the two years immediately preceding the 
filing of the petition.  Notice must be served in the manner 
provided in sections 260.135 and 260.141, except that personal 
service shall be made at least ten days before the day of the 
hearing.  Published notice shall be made for three weeks, the 
last publication to be at least ten days before the day of the 
hearing; and notice sent by certified mail shall be mailed at 
least 20 days before the day of the hearing.  A parent who 
consents to the termination of parental rights under the 
provisions of section 260.221, clause (a), may waive in writing 
the notice required by this subdivision; however, if the parent 
is a minor or incompetent the waiver shall be effective only if 
the parent's guardian ad litem concurs in writing. 
    Presented to the governor May 19, 1989 
    Signed by the governor May 23, 1989, 5:45 p.m.