Office of the Revisor of Statutes
Minnesota Session Laws - 1994, Regular Session
Key: (1) language to be deleted (2) new language
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.
Official Publication of the State of Minnesota
Revisor of Statutes