Minnesota Session Laws - 1992, Regular Session

  

                         Laws of Minnesota 1992 

                        CHAPTER 557-S.F.No. 1821 
           An act relating to children; changing certain 
          provisions for placement of children; establishing a 
          general preference for adoption by relatives; 
          requiring continued study of out-of-home dispositions; 
          amending Minnesota Statutes 1990, sections 257.025; 
          257.071, subdivision 1; 257.072, subdivision 7; 
          259.255; 259.28, subdivision 2; 259.455; 260.181, 
          subdivision 3; and 518.17, subdivision 1. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1990, section 257.025, is 
amended to read: 
    257.025 [CUSTODY DISPUTES.] 
    (a) In any proceeding where two or more parties seek 
custody of a child the court shall consider and evaluate all 
relevant factors in determining the best interests of the child, 
including the following factors: 
    (1) the wishes of the party or parties as to custody; 
    (2) the reasonable preference of the child, if the court 
deems the child to be of sufficient age to express preference; 
    (3) the child's primary caretaker; 
    (4) the intimacy of the relationship between each party and 
the child; 
    (5) the interaction and interrelationship of the child with 
a party or parties, siblings, and any other person who may 
significantly affect the child's best interests; 
    (6) the child's adjustment to home, school, and community; 
    (7) the length of time the child has lived in a stable, 
satisfactory environment and the desirability of maintaining 
continuity; 
    (8) the permanence, as a family unit, of the existing or 
proposed custodial home; 
    (9) the mental and physical health of all individuals 
involved; except that a disability, as defined in section 
363.01, of a proposed custodian or the child shall not be 
determinative of the custody of the child, unless the proposed 
custodial arrangement is not in the best interest of the child; 
    (10) the capacity and disposition of the parties to give 
the child love, affection, and guidance, and to continue 
educating and raising the child in the child's culture, 
religion, or creed, if any; 
    (11) the child's cultural background; and 
    (12) the effect on the child of the actions of an abuser, 
if related to domestic abuse as defined in section 518B.01, that 
has occurred between the parents or the parties. 
    The court may not use one factor to the exclusion of all 
others.  The court must make detailed findings on each of the 
factors and explain how the factors led to its conclusions and 
to the determination of the best interests of the child.  
    (b) The fact that the parents of the child are not or were 
never married to each other shall not be determinative of the 
custody of the child.  
    (c) The court shall not consider conduct of a proposed 
custodian that does not affect the custodian's relationship to 
the child.  
    (d) The court shall consider evidence of a violation of 
section 609.507 in determining the best interests of the child.  
    (e) A person may seek custody of a child by filing a 
petition or motion pursuant to section 518.156.  
    (f) Section 518.619 applies to this section. 
     Sec. 2.  Minnesota Statutes 1990, section 257.071, 
subdivision 1, is amended to read: 
    Subdivision 1.  [PLACEMENT; PLAN.] A case plan shall be 
prepared within 30 days after any child is placed in a 
residential facility by court order or by the voluntary release 
of the child by the parent or parents.  
             For purposes of this section, a residential facility means 
any group home, family foster home or other publicly supported 
out-of-home residential facility, including any out-of-home 
residential facility under contract with the state, county or 
other political subdivision, or any agency thereof, to provide 
those services.  
             For the purposes of this section, a case plan means a 
written document which is ordered by the court or which is 
prepared by the social service agency responsible for the 
residential facility placement and is signed by the parent or 
parents, or other custodian, of the child, the child's legal 
guardian, the social service agency responsible for the 
residential facility placement, and, if possible, the child.  
The document shall be explained to all persons involved in its 
implementation, including the child who has signed the document, 
and shall set forth: 
             (1) The specific reasons for the placement of the child in 
a residential facility, including a description of the problems 
or conditions in the home of the parent or parents which 
necessitated removal of the child from home; 
             (2) The specific actions to be taken by the parent or 
parents of the child to eliminate or correct the problems or 
conditions identified in clause (1), and the time period during 
which the actions are to be taken; 
             (3) The financial responsibilities and obligations, if 
any, of the parents for the support of the child during the 
period the child is in the residential facility; 
             (4) The visitation rights and obligations of the parent or 
parents during the period the child is in the residential 
facility; 
             (5) The social and other supportive services to be 
provided to the parent or parents of the child, the child, and 
the residential facility during the period the child is in the 
residential facility; 
     (6) The date on which the child is expected to be returned 
to the home of the parent or parents; 
     (7) The nature of the effort to be made by the social 
service agency responsible for the placement to reunite the 
family; and 
     (8) Notice to the parent or parents that placement of the 
child in foster care may result in termination of parental 
rights but only after notice and a hearing as provided in 
chapter 260. 
     The parent or parents and the child each shall have the 
right to legal counsel in the preparation of the case plan and 
shall be informed of the right at the time of placement of the 
child.  The child shall also have the right to a guardian ad 
litem.  If unable to employ counsel from their own resources, 
the court shall appoint counsel upon the request of the parent 
or parents or the child or the child's legal guardian.  The 
parent or parents may also receive assistance from any person or 
social service agency in preparation of the case plan. 
     After the plan has been agreed upon by the parties 
involved, the foster parents shall be fully informed of the 
provisions of the case plan. 
    When an agency accepts a child for placement, the agency 
shall determine whether the child has had a physical examination 
by or under the direction of a licensed physician within the 12 
months immediately preceding the date when the child came into 
the agency's care.  If there is documentation that the child has 
had such an examination within the last 12 months, the agency is 
responsible for seeing that the child has another physical 
examination within one year of the documented examination and 
annually in subsequent years.  If the agency determines that the 
child has not had a physical examination within the 12 months 
immediately preceding placement, the agency shall ensure that 
the child has the examination within 30 days of coming into the 
agency's care and once a year in subsequent years. 
    Sec. 3.  Minnesota Statutes 1990, section 257.072, 
subdivision 7, is amended to read: 
    Subd. 7.  [DUTIES OF CHILD-PLACING AGENCIES.] Each 
authorized child-placing agency must: 
    (1) develop and follow procedures for implementing the 
order of preference prescribed by section 260.181, subdivision 
3, and the Indian Child Welfare Act, United States Code, title 
25, sections 1901 to 1923; 
    (a) In implementing the order of preference, an authorized 
child-placing agency may disclose private or confidential data, 
as defined in section 13.02, to relatives of the child for the 
purpose of locating a suitable placement.  The agency shall 
disclose only data that is necessary to facilitate implementing 
the preference.  If a parent makes an explicit request that the 
relative preference not be followed, the agency shall bring the 
matter to the attention of the court to determine whether the 
parent's request is consistent with the best interests of the 
child and the agency shall not contact relatives unless ordered 
to do so by the juvenile court; and 
    (b) In implementing the order of preference, the authorized 
child-placing agency shall develop written standards for 
determining the suitability of proposed placements.  The 
standards need not meet all requirements for foster care 
licensing, but must ensure that the safety, health, and welfare 
of the child is safeguarded.  In the case of an Indian child, 
the standards to be applied must be the prevailing social and 
cultural standards of the Indian child's community, and the 
agency shall defer to tribal judgment as to suitability of a 
particular home when the tribe has intervened pursuant to the 
Indian Child Welfare Act; 
    (2) have a written plan for recruiting minority adoptive 
and foster families.  The plan must include (a) strategies for 
using existing resources in minority communities, (b) use of 
minority outreach staff wherever possible, (c) use of minority 
foster homes for placements after birth and before adoption, and 
(d) other techniques as appropriate; 
    (3) have a written plan for training adoptive and foster 
families of minority children; 
    (4) if located in an area with a significant minority 
population, have a written plan for employing minority social 
workers in adoption and foster care.  The plan must include 
staffing goals and objectives; and 
    (5) ensure that adoption and foster care workers attend 
training offered or approved by the department of human services 
regarding cultural diversity and the needs of special needs 
children; and 
    (6) develop and implement procedures for implementing the 
requirements of the Indian Child Welfare Act and the Minnesota 
Indian family preservation act. 
    Sec. 4.  Minnesota Statutes 1990, section 259.255, is 
amended to read: 
    259.255 [PROTECTION OF HERITAGE OR BACKGROUND.] 
    The policy of the state of Minnesota is to ensure that the 
best interests of the child are met by requiring due 
consideration of the child's minority race or minority ethnic 
heritage in adoption placements.  For purposes of intercountry 
adoptions, due consideration is deemed to have occurred if the 
appropriate authority in the child's country of birth has 
approved the placement of the child.  
    The authorized child placing agency shall give preference, 
in the absence of good cause to the contrary, to placing the 
child with (a) a relative or relatives of the child, or, if that 
would be detrimental to the child or a relative is not 
available, (b) a family with the same racial or ethnic heritage 
as the child, or, if that is not feasible, (c) a family of 
different racial or ethnic heritage from the child which is 
knowledgeable and appreciative of the child's racial or ethnic 
heritage.  
    If the child's genetic parent or parents explicitly request 
that the preference described in clause (a) or clauses (a) and 
(b) not be followed, the authorized child placing agency shall 
honor that request consistent with the best interests of the 
child.  
    If the child's genetic parent or parents express a 
preference for placing the child in an adoptive home of the same 
or a similar religious background to that of the genetic parent 
or parents, in following the preferences in clause (a) or (b), 
the agency shall place the child with a family that also meets 
the genetic parent's religious preference.  Only if no family is 
available that is described in clause (a) or (b) may the agency 
give preference to a family described in clause (c) that meets 
the parent's religious preference.  
    Sec. 5.  Minnesota Statutes 1990, section 259.28, 
subdivision 2, is amended to read: 
    Subd. 2.  [PROTECTION OF HERITAGE OR BACKGROUND.] The 
policy of the state of Minnesota is to ensure that the best 
interests of children are met by requiring due consideration of 
the child's minority race or minority ethnic heritage in 
adoption placements.  For purposes of intercountry adoptions, 
due consideration is deemed to have occurred if the appropriate 
authority in the child's country of birth has approved the 
placement of the child.  
    In the adoption of a child of minority racial or minority 
ethnic heritage, In reviewing adoptive placement, the court 
shall consider preference, and in determining appropriate 
adoption, the court shall give preference, in the absence of 
good cause to the contrary, to (a) a relative or relatives of 
the child, or, if that would be detrimental to the child or a 
relative is not available, to (b) a family with the same racial 
or ethnic heritage as the child, or if that is not feasible, to 
(c) a family of different racial or ethnic heritage from the 
child that is knowledgeable and appreciative of the child's 
racial or ethnic heritage.  
    If the child's genetic parent or parents explicitly request 
that the preference described in clause (a) or in clauses (a) 
and (b) not be followed, the court shall honor that request 
consistent with the best interests of the child.  
    If the child's genetic parent or parents express a 
preference for placing the child in an adoptive home of the same 
or a similar religious background to that of the genetic parent 
or parents, in following the preferences in clause (a) or (b), 
the court shall place the child with a family that also meets 
the genetic parent's religious preference.  Only if no family is 
available as described in clause (a) or (b) may the court give 
preference to a family described in clause (c) that meets the 
parent's religious preference.  
    Sec. 6.  Minnesota Statutes 1990, section 259.455, is 
amended to read: 
    259.455 [FAMILY RECRUITMENT.] 
    Each authorized child placing agency shall make special 
efforts to recruit an adoptive family from among the child's 
relatives, except as authorized in section 259.28, subdivision 
2, and among families of the same minority racial or minority 
ethnic heritage.  Special efforts include contacting and working 
with community organizations and religious organizations, 
utilizing local media and other local resources, and conducting 
outreach activities.  The agency may accept any gifts, grants, 
offers of services, and other contributions to use in making 
special recruitment efforts.  
    Sec. 7.  Minnesota Statutes 1990, section 260.181, 
subdivision 3, is amended to read: 
    Subd. 3.  [PROTECTION OF RACIAL OR ETHNIC HERITAGE, OR 
RELIGIOUS AFFILIATION BACKGROUND.] The policy of the state is to 
ensure that the best interests of children are met by requiring 
due consideration of the child's minority race or minority 
ethnic heritage in foster care placements.  
    The court, in transferring legal custody of any child or 
appointing a guardian for the child under the laws relating to 
juvenile courts, shall place the child, in the following order 
of preference, in the absence of good cause to the contrary, in 
the legal custody or guardianship of an individual who (a) is 
the child's relative, or if that would be detrimental to the 
child or a relative is not available, who (b) is of the same 
racial or ethnic heritage as the child, or if that is not 
possible, who (c) is knowledgeable and appreciative of the 
child's racial or ethnic heritage.  The court may require the 
county welfare agency to continue efforts to find a guardian of 
the child's minority racial or minority ethnic heritage when 
such a guardian is not immediately available.  For purposes of 
this subdivision, "relative" includes members of a child's 
extended family and important friends with whom the child has 
resided or had significant contact. 
    If the child's genetic parent or parents explicitly request 
that the preference described in clause (a) or in clauses (a) 
and (b) not be followed, the court shall honor that request 
consistent with the best interests of the child.  
    If the child's genetic parent or parents express a 
preference for placing the child in a foster or adoptive home of 
the same or a similar religious background to that of the 
genetic parent or parents, in following the preferences in 
clause (a) or (b), the court shall order placement of the child 
with an individual who meets the genetic parent's religious 
preference.  Only if no individual is available who is described 
in clause (a) or (b) may the court give preference to an 
individual described in clause (c) who meets the parent's 
religious preference. 
     Sec. 8.  Minnesota Statutes 1990, section 518.17, 
subdivision 1, is amended to read: 
    Subdivision 1.  [THE BEST INTERESTS OF THE CHILD.] (a) "The 
best interests of the child" means all relevant factors to be 
considered and evaluated by the court including: 
    (1) the wishes of the child's parent or parents as to 
custody; 
    (2) the reasonable preference of the child, if the court 
deems the child to be of sufficient age to express preference; 
    (3) the child's primary caretaker; 
    (4) the intimacy of the relationship between each parent 
and the child; 
    (5) the interaction and interrelationship of the child with 
a parent or parents, siblings, and any other person who may 
significantly affect the child's best interests; 
    (6) the child's adjustment to home, school, and community; 
    (7) the length of time the child has lived in a stable, 
satisfactory environment and the desirability of maintaining 
continuity; 
    (8) the permanence, as a family unit, of the existing or 
proposed custodial home; 
    (9) the mental and physical health of all individuals 
involved; except that a disability, as defined in section 
363.01, of a proposed custodian or the child shall not be 
determinative of the custody of the child, unless the proposed 
custodial arrangement is not in the best interest of the child; 
    (10) the capacity and disposition of the parties to give 
the child love, affection, and guidance, and to continue 
educating and raising the child in the child's culture and 
religion or creed, if any; 
    (11) the child's cultural background; and 
    (12) the effect on the child of the actions of an abuser, 
if related to domestic abuse, as defined in section 518B.01, 
that has occurred between the parents. 
    The court may not use one factor to the exclusion of all 
others.  The primary caretaker factor may not be used as a 
presumption in determining the best interests of the child.  The 
court must make detailed findings on each of the factors and 
explain how the factors led to its conclusions and to the 
determination of the best interests of the child.  
    (b) The court shall not consider conduct of a proposed 
custodian that does not affect the custodian's relationship to 
the child. 
    Sec. 9.  [DISPOSITIONS STUDY.] 
    A multidisciplinary task force shall examine issues raised 
by the alternative disposition recommendations made in the 
report prepared pursuant to Laws 1990, chapter 542, section 39.  
The members of the task force shall be appointed by the speaker 
of the house of representatives and the subcommittee on 
committees of the committee on rules and administration of the 
senate.  By January 15, 1993, the task force shall report and 
make recommendations to the legislature on: 
    (1) the current practice and level of compliance with the 
placement preferences in Minnesota Statutes for protection of a 
child's heritage or background and the impact of alternative 
dispositions on the placement preferences; 
    (2) a process for ongoing monitoring of compliance with the 
placement preferences and possible sanctions for a failure to 
comply with the preferences; 
    (3) the need for establishing standards for social work 
practices for implementing the placement preferences; 
    (4) licensing and funding requirements that affect 
alternative disposition placements, the impact of disparate 
payment rates between foster care and other potential 
caretakers, and alternatives for establishing subsidized 
permanent placements without ongoing case management and review; 
and 
    (5) programs and resources to facilitate early intervention 
and prevention of out-of-home placements. 
    Sec. 10.  [EFFECTIVE DATE.] 
    Sections 3 to 7 and 9 are effective the day following final 
enactment. 
    Presented to the governor April 17, 1992 
    Signed by the governor April 27, 1992, 2:05 p.m.