Minnesota Session Laws - 1994, Regular Session

                            CHAPTER 598-S.F.No. 1735 
                  An act relating to children; modifying certain 
                  provisions concerning foster care and adoption; 
                  amending Minnesota Statutes 1992, section 260.141, 
                  subdivision 1; Minnesota Statutes 1993 Supplement, 
                  sections 245A.03, subdivisions 2 and 2a; 257.071, 
                  subdivision 3; 257.072, subdivision 9; 259.255; and 
                  260.191, subdivision 3b. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1993 Supplement, section 
        245A.03, subdivision 2, is amended to read: 
           Subd. 2.  [EXCLUSION FROM LICENSURE.] Sections 245A.01 to 
        245A.16 do not apply to: 
           (1) residential or nonresidential programs that are 
        provided to a person by an individual who is related unless the 
        residential program is a foster care placement made by a county 
        welfare board or agency, or a licensed child placing agency, 
        except as provided in subdivision 2a; 
           (2) nonresidential programs that are provided by an 
        unrelated individual to persons from a single related family; 
           (3) residential or nonresidential programs that are 
        provided to adults who do not abuse chemicals or who do not have 
        a chemical dependency, a mental illness, mental retardation or a 
        related condition, a functional impairment, or a physical 
        handicap; 
           (4) sheltered workshops or work activity programs that are 
        certified by the commissioner of jobs and training; 
           (5) programs for children enrolled in kindergarten to the 
        12th grade and prekindergarten special education in a school as 
        defined in section 120.101, subdivision 4, and programs serving 
        children in combined special education and regular 
        prekindergarten programs that are operated or assisted by the 
        commissioner of education; 
           (6) nonresidential programs primarily for children that 
        provide care or supervision, without charge for ten or fewer 
        days a year, and for periods of less than three hours a day 
        while the child's parent or legal guardian is in the same 
        building as the nonresidential program or present within another 
        building that is directly contiguous to the building in which 
        the nonresidential program is located; 
           (7) nursing homes or hospitals licensed by the commissioner 
        of health except as specified under section 245A.02; 
           (8) board and lodge facilities licensed by the commissioner 
        of health that provide services for five or more persons whose 
        primary diagnosis is mental illness who have refused an 
        appropriate residential program offered by a county agency.  
        This exclusion expires on July 1, 1990; 
           (9) homes providing programs for persons placed there by a 
        licensed agency for legal adoption, unless the adoption is not 
        completed within two years; 
           (10) programs licensed by the commissioner of corrections; 
           (11) recreation programs for children or adults that 
        operate for fewer than 40 calendar days in a calendar year; 
           (12) programs whose primary purpose is to provide, for 
        adults or school-age children, including children who will be 
        eligible to enter kindergarten within not more than four months, 
        social and recreational activities, such as scouting, boys 
        clubs, girls clubs, sports, or the arts; except that a program 
        operating in a school building is not excluded unless it is 
        approved by the district's school board; 
           (13) head start nonresidential programs which operate for 
        less than 31 days in each calendar year; 
           (14) noncertified boarding care homes unless they provide 
        services for five or more persons whose primary diagnosis is 
        mental illness or mental retardation; 
           (15) nonresidential programs for nonhandicapped children 
        provided for a cumulative total of less than 30 days in any 
        12-month period; 
           (16) residential programs for persons with mental illness, 
        that are located in hospitals, until the commissioner adopts 
        appropriate rules; 
           (17) the religious instruction of school-age children; 
        Sabbath or Sunday schools; or the congregate care of children by 
        a church, congregation, or religious society during the period 
        used by the church, congregation, or religious society for its 
        regular worship; 
           (18) camps licensed by the commissioner of health under 
        Minnesota Rules, chapter 4630; 
           (19) mental health outpatient services for adults with 
        mental illness or children with emotional disturbance; 
           (20) residential programs serving school-age children whose 
        sole purpose is cultural or educational exchange, until the 
        commissioner adopts appropriate rules; 
           (21) unrelated individuals who provide out-of-home respite 
        care services to persons with mental retardation or related 
        conditions from a single related family for no more than 90 days 
        in a 12-month period and the respite care services are for the 
        temporary relief of the person's family or legal representative; 
           (22) respite care services provided as a home and 
        community-based service to a person with mental retardation or a 
        related condition, in the person's primary residence; or 
           (23) community support services programs as defined in 
        section 245.462, subdivision 6, and family community support 
        services as defined in section 245.4871, subdivision 17. 
           For purposes of clause (6), a building is directly 
        contiguous to a building in which a nonresidential program is 
        located if it shares a common wall with the building in which 
        the nonresidential program is located or is attached to that 
        building by skyway, tunnel, atrium, or common roof. 
           Sec. 2.  Minnesota Statutes 1993 Supplement, section 
        245A.03, subdivision 2a, is amended to read: 
           Subd. 2a.  [LICENSING OF AN INDIVIDUAL RELATED TO 
        A QUALIFYING CHILD.] Notwithstanding subdivision 2, clause (1), 
        the commissioner may must license or approve an individual who 
        is related to a qualifying child, as defined in title IV-E of 
        the Social Security Act, in order to provide foster care for 
        that qualifying child.  The commissioner may issue such a the 
        license or approval retroactive to the date the qualifying child 
        was placed in the applicant's home, so long as no more than 90 
        days have elapsed since the placement.  If more than 90 days 
        have elapsed since the placement, the commissioner may issue the 
        license or approval retroactive 90 days.  The granting of a 
        license or approval to an individual who is related to a child 
        shall be according to standards set forth by foster care rule. 
        The commissioner shall consider the importance of maintaining 
        the child's relationship to family as an additional significant 
        factor in determining whether to set aside a licensing 
        disqualifier under section 245A.04, subdivision 3b, or to grant 
        a variance of licensing requirements under section 245A.04, 
        subdivision 9 in licensing or approving an individual related to 
        a child. 
           Sec. 3.  Minnesota Statutes 1993 Supplement, section 
        257.071, subdivision 3, is amended to read: 
           Subd. 3.  [REVIEW OF VOLUNTARY PLACEMENTS.] Except as 
        provided in subdivision 4, if the child has been placed in a 
        residential facility pursuant to a voluntary release by the 
        parent or parents, and is not returned home within six months 
        after initial placement in the residential facility, the social 
        service agency responsible for the placement shall: 
           (1) return the child to the home of the parent or parents; 
        or 
           (2) file an appropriate petition pursuant to section 
        260.131, subdivision 1, or 260.231. 
           The case plan must be updated when a petition is filed and 
        must include a specific plan for permanency. 
           Sec. 4.  Minnesota Statutes 1993 Supplement, section 
        257.072, subdivision 9, is amended to read: 
           Subd. 9.  [RULES.] The commissioner of human services shall 
        adopt rules to establish standards for relative foster care 
        placement, conducting relative searches, and recruiting foster 
        and adoptive families of the same racial or ethnic heritage as 
        the child, and evaluating the role of relative status in the 
        reconsideration of disqualifications under section 245A.04, 
        subdivision 3b, and granting variances of licensing requirements 
        under section 245A.04, subdivision 9, in licensing or approving 
        an individual related to a child.  
           Sec. 5.  Minnesota Statutes 1993 Supplement, 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, not sole, 
        consideration of the child's race or 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.  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 adoptive home.  
        The agency shall disclose only data that is necessary to 
        facilitate implementing the preference.  
           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. 6.  Minnesota Statutes 1992, section 260.141, 
        subdivision 1, is amended to read: 
           Subdivision 1.  (a) Service of summons or notice required 
        by section 260.135 or 260.191, subdivision 3b, shall be made 
        upon the following persons in the same manner in which personal 
        service of summons in civil actions is made:  
           (1) in all delinquency matters, upon the person having 
        custody or control of the child and upon the child; and 
           (2) in all other matters, upon the person having custody or 
        control of the child, and upon the child if more than 12 years 
        of age.  
           Personal service shall be effected at least 24 hours before 
        the time of the hearing; however, it shall be sufficient to 
        confer jurisdiction if service is made at any time before the 
        day fixed in the summons or notice for the hearing, except that 
        the court, if so requested, shall not proceed with the hearing 
        earlier than the second day after the service.  If personal 
        service cannot well be made within the state, a copy of the 
        summons or notice may be served on the person to whom it is 
        directed by delivering a copy thereof to such person personally 
        outside the state.  Such service if made personally outside the 
        state shall be sufficient to confer jurisdiction; providing 
        however it be made at least five days before the date fixed for 
        hearing in such summons or notice. 
           (b) If the court is satisfied that personal service of the 
        summons or notice cannot well be made, it shall make an order 
        providing for the service of summons or notice by certified mail 
        addressed to the last known addresses of such persons, and by 
        one weeks published notice as provided in section 645.11.  A 
        copy of the notice shall be sent by certified mail at least five 
        days before the time of the hearing or 14 days if mailed to 
        addresses outside the state. 
           (c) Notification to the county welfare board required by 
        section 260.135, subdivision 3, shall be in such manner as the 
        court may direct. 
           Sec. 7.  Minnesota Statutes 1993 Supplement, section 
        260.191, subdivision 3b, is amended to read: 
           Subd. 3b.  [REVIEW OF COURT ORDERED PLACEMENTS; PERMANENT 
        PLACEMENT DETERMINATION.] (a) If the court places a child in a 
        residential facility, as defined in section 257.071, subdivision 
        1, the court shall conduct a hearing to determine the permanent 
        status of the child not later than 12 months after the child was 
        placed out of the home of the parent.  Not later than 30 ten 
        days prior to this hearing, the responsible social service 
        agency shall file pleadings to establish the basis for the 
        permanent placement determination.  Notice of the hearing and 
        copies of the pleadings must be provided pursuant to sections 
        260.135 and section 260.141.  If a termination of parental 
        rights petition is filed before the date required for the 
        permanency planning determination, no hearing need be conducted 
        under this section.  The court shall determine whether the child 
        is to be returned home or, if not, what permanent placement is 
        consistent with the child's best interests.  The "best interests 
        of the child" means all relevant factors to be considered and 
        evaluated. 
           If the child is not returned to the home, the dispositions 
        available for permanent placement determination are: 
           (1) permanent legal and physical custody to a 
        relative, pursuant to the standards and procedures applicable 
        under chapter 257 or 518.  The social service agency may 
        petition on behalf of the proposed custodian; 
           (2) termination of parental rights and adoption, or 
        permanent; the social service agency shall file a petition for 
        termination of parental rights under section 260.231 and all the 
        requirements of sections 260.221 to 260.245 remain applicable; 
        or 
           (3) long-term foster care; transfer of legal custody and 
        adoption are preferred permanency options for a child who cannot 
        return home.  The court may order a child into permanent 
        long-term foster care only if it finds that neither an award of 
        legal and physical custody to a relative, nor termination of 
        parental rights, nor adoption is in the child's best interests.  
        Further, the court may only order long-term foster care for the 
        child under this section if it finds the following: 
           (i) the child has reached age 12 and reasonable efforts by 
        the responsible social service agency have failed to locate an 
        adoptive family for the child; or 
           (ii) the child is a sibling of a child described in clause 
        (i) and the siblings have a significant positive relationship 
        and are ordered into the same long-term foster care home. 
           (b) The court may extend the time period for determination 
        of permanent placement to 18 months after the child was placed 
        in a residential facility if: 
           (1) there is a substantial probability that the child will 
        be returned home within the next six months; 
           (2) the agency has not made reasonable, or, in the case of 
        an Indian child, active efforts, to correct the conditions that 
        form the basis of the out-of-home placement; or 
           (3) extraordinary circumstances exist precluding a 
        permanent placement determination, in which case the court shall 
        make written findings documenting the extraordinary 
        circumstances and order one subsequent review after six months 
        to determine permanent placement.  A court finding that 
        extraordinary circumstances exist precluding a permanent 
        placement determination must be supported by detailed factual 
        findings regarding those circumstances. 
           (c) If the court determines that an adoptive placement is 
        in the best interests of the child, the social service agency 
        shall file a petition for termination of parental rights under 
        section 260.231.  Nothing in this subdivision waives the 
        requirements of sections 260.221 to 260.245 with respect to 
        termination of parental rights. 
           (d) (c) In ordering a permanent placement of a child, the 
        court must be governed by the best interests of the child, 
        including a review of the relationship between the child and 
        relatives and the child and other important persons with whom 
        the child has resided or had significant contact. 
           (e) (d) Once a permanent placement determination has been 
        made and permanent placement has been established, further 
        reviews are only necessary if otherwise required by federal law, 
        an adoption has not yet been finalized, or there is a disruption 
        of the permanent or long-term placement.  These If required, 
        reviews must take place no less frequently than every six months.
           (f) (e) An order under this subdivision must include the 
        following detailed findings: 
           (1) how the child's best interests are served by the order; 
           (2) the nature and extent of the responsible social service 
        agency's reasonable efforts, or, in the case of an Indian child, 
        active efforts, to reunify the child with the parent or parents; 
           (3) the parent's or parents' efforts and ability to use 
        services to correct the conditions which led to the out-of-home 
        placement; 
           (4) whether the conditions which led to the out-of-home 
        placement have been corrected so that the child can return home; 
        and 
           (5) if the child cannot be returned home, whether there is 
        a substantial probability of the child being able to return home 
        in the next six months.  
           If the court orders the child placed in permanent foster 
        care, the court shall make findings that neither an award of 
        legal and physical custody to a relative, termination of 
        parental rights, nor adoption is in the child's best interests. 
           (f) An order for permanent legal and physical custody of a 
        child may be modified under sections 518.18 and 518.185.  The 
        social service agency is a party to the proceeding and must 
        receive notice.  An order for long-term foster care is 
        reviewable upon motion and a showing by the parent of a 
        substantial change in the parent's circumstances such that the 
        parent could provide appropriate care for the child and that 
        removal of the child from the child's permanent placement and 
        the return to the parent's care would be in the best interest of 
        the child. 
           A court finding that extraordinary circumstances exist 
        precluding a permanent placement determination must be supported 
        by detailed factual findings regarding those circumstances. 
           Presented to the governor May 5, 1994 
           Signed by the governor May 6, 1994, 4:58 p.m.