Office of the Revisor of Statutes
Minnesota Session Laws - 1994, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 631-S.F.No. 2129
An act relating to adoption; regulating certain
advertising and payments in connection with adoption;
regulating agencies; providing for direct adoptive
placement; providing for the enforceability of
postadoption contact agreements; providing penalties;
amending Minnesota Statutes 1992, sections 144.227,
subdivision 1, and by adding a subdivision; 245A.03,
subdivision 1; 245A.04, by adding a subdivision;
245A.07, by adding a subdivision; 259.21, by adding
subdivisions; 259.22, subdivisions 1, 2, and by adding
a subdivision; 259.24, by adding a subdivision;
259.27, subdivisions 1, 2, 5, and by adding a
subdivision; 259.31; and 317A.907, subdivision 6;
Minnesota Statutes 1993 Supplement, section 245A.03,
subdivision 2; proposing coding for new law in
Minnesota Statutes, chapter 259.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1992, section 144.227,
subdivision 1, is amended to read:
Subdivision 1. [FALSE STATEMENTS.] Whoever intentionally
makes any false statement in a certificate, record, or report
required to be filed under sections 144.211 to 144.214 or
144.216 to 144.227, or in an application for an amendment
thereof, or in an application for a certified copy of a vital
record, or who supplies false information intending that the
information be used in the preparation of any report, record,
certificate, or amendment thereof, is guilty of a misdemeanor.
Sec. 2. Minnesota Statutes 1992, section 144.227, is
amended by adding a subdivision to read:
Subd. 3. [BIRTH REGISTRATION.] Whoever intentionally makes
a false statement in a registration required under section
144.215 or in an application for an amendment to such a
registration, or intentionally supplies false information
intending that the information be used in the preparation of a
registration under section 144.215 is guilty of a gross
misdemeanor. This offense shall be prosecuted by the county
attorney.
Sec. 3. Minnesota Statutes 1992, section 245A.03,
subdivision 1, is amended to read:
Subdivision 1. [LICENSE REQUIRED.] Unless licensed by the
commissioner, an individual, corporation, partnership, voluntary
association, other organization, or controlling individual must
not:
(1) operate a residential or a nonresidential program;
(2) receive a child or adult for care, supervision, or
placement in foster care or adoption;
(3) help plan the placement of a child or adult in foster
care or adoption or engage in placement activities as defined in
section 259.21, subdivision 9, in this state, whether or not the
adoption occurs in this state; or
(4) advertise a residential or nonresidential program.
Sec. 4. 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, 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; or
(24) the placement of a child by a birth parent or legal
guardian in a preadoptive home for purposes of adoption as
authorized by section 259.2591.
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. 5. Minnesota Statutes 1992, section 245A.04, is
amended by adding a subdivision to read:
Subd. 10. [ADOPTION AGENCY; ADDITIONAL REQUIREMENTS.] In
addition to the other requirements of this section, an
individual, corporation, partnership, voluntary association,
other organization, or controlling individual applying for a
license to place children for adoption must:
(1) incorporate as a nonprofit corporation under chapter
317A;
(2) file with the application for licensure a copy of the
disclosure form required under section 259.258, subdivision 2;
(3) provide evidence that a bond has been obtained and will
be continuously maintained in favor of the commissioner
throughout the entire operating period of the agency, to cover
the cost of transfer and storage of records if the agency
voluntarily or involuntarily ceases operation and fails to
provide for proper transfer of the records in order to comply
with the requirements of section 259.46; and
(4) submit a certified audit to the commissioner each year
the license is renewed as required under section 245A.03,
subdivision 1.
Sec. 6. Minnesota Statutes 1992, section 245A.07, is
amended by adding a subdivision to read:
Subd. 4. [ADOPTION AGENCY VIOLATIONS.] If a license holder
licensed to place children for adoption fails to provide
services as described in the disclosure form required by section
259.258, subdivision 2, the sanctions under this section may be
imposed.
Sec. 7. [259.20] [POLICY.]
Subdivision 1. The policy of the state of Minnesota and
the purpose of sections 259.20 to 259.406 is to ensure:
(1) that the best interests of children are met in the
planning and granting of adoptions; and
(2) that laws and practices governing adoption recognize
the diversity of Minnesota's population and the diverse needs of
persons affected by adoption.
Subd. 2. Portions of chapters 245A, 257, 260, and 317A may
also affect the adoption of a particular child.
Sec. 8. Minnesota Statutes 1992, section 259.21, is
amended by adding a subdivision to read:
Subd. 8. [PLACEMENT.] "Placement" means the transfer of
physical custody of a child from a birth parent or legal
guardian to a prospective adoptive home.
Sec. 9. Minnesota Statutes 1992, section 259.21, is
amended by adding a subdivision to read:
Subd. 9. [PLACEMENT ACTIVITIES.] "Placement activities"
means any of the following:
(1) placement;
(2) arranging or providing short-term foster care pending
an adoptive placement;
(3) facilitating placement by maintaining a list in any
form of birth parents or prospective adoptive parents;
(4) collecting health and social histories of a birth
family;
(5) conducting an adoption study;
(6) witnessing consents to an adoption; or
(7) engaging in any activity listed in clauses (1) to (6)
for purposes of fulfilling any requirements of the interstate
compact on the placement of children.
Sec. 10. Minnesota Statutes 1992, section 259.21, is
amended by adding a subdivision to read:
Subd. 10. [DIRECT ADOPTIVE PLACEMENT.] "Direct adoptive
placement" means the placement of a child by a birth parent or
legal guardian other than an agency under the procedure for
adoption authorized by section 259.2591.
Sec. 11. Minnesota Statutes 1992, section 259.21, is
amended by adding a subdivision to read:
Subd. 11. [WORKING DAY.] "Working day" means Monday
through Friday, excluding any holiday as defined under section
645.44, subdivision 5.
Sec. 12. Minnesota Statutes 1992, section 259.22,
subdivision 1, is amended to read:
Subdivision 1. Any person who has resided in the state for
one year or more may petition to adopt a child or an adult, and
the same petitioner may petition for the adoption of two or more
persons in one petition. The provisions as to length of
residence in the state may be waived reduced to 30 days by the
court whenever it appears to be for the best interest of the
child.
The court may waive any residence requirement of this
section if the petitioner is an individual who is related, as
defined in section 245A.02, subdivision 13, or a member of a
child's extended family or important friends with whom the child
has resided or had significant contact.
Sec. 13. Minnesota Statutes 1992, section 259.22,
subdivision 2, is amended to read:
Subd. 2. No petition for adoption shall be filed unless
the child sought to be adopted has been placed by the
commissioner of human services, the commissioner's agent, or a
licensed child-placing agency. The provisions of this
subdivision shall not apply if
(a) the child is over 14 years of age;
(b) the child is sought to be adopted by a stepparent;
(c) the child is sought to be adopted by a relative related
by blood or marriage within the third degree;
(d) the child has been lawfully placed under the laws of
another state while the child and petitioner resided in that
other state; or
(e) the court waives the requirement of placement this
subdivision in the best interests of the child or petitioners,
provided that the adoption does not involve a placement as
defined in section 259.21, subdivision 8; or
(f) the child has been lawfully placed under section
259.2591.
Sec. 14. Minnesota Statutes 1992, section 259.22, is
amended by adding a subdivision to read:
Subd. 4. [TIME FOR FILING PETITION.] A petition shall be
filed not later than 24 months after a child is placed in a
prospective adoptive home. If a petition is not filed by that
time, the agency that placed the child, or, in a direct adoptive
placement, the agency that prepared the postplacement adoptive
study shall file with the district court in the county where the
prospective adoptive parent resides a motion for an order and a
report recommending one of the following:
(1) that the time for filing a petition be extended because
of the child's special needs as defined under title IV-E of the
Social Security Act, United States Code, title 42, section 673;
or
(2) that the child be removed from the prospective adoptive
home.
The prospective adoptive parent must reimburse an agency
for the cost of preparing and filing the motion and report under
this section, unless the costs are reimbursed by the
commissioner under section 259.40 or 259.44.
Sec. 15. Minnesota Statutes 1992, section 259.24, is
amended by adding a subdivision to read:
Subd. 2a. [TIME OF CONSENT.] Not sooner than 72 hours
after the birth of a child and not later than 60 days after the
child's placement in a prospective adoptive home, a person whose
consent is required under this section shall execute a consent.
Sec. 16. [259.256] [AGENCY PLACEMENT FACTORS.]
An agency shall document, in the records required to be
kept under section 259.46, the reasons for each child placement
decision.
Sec. 17. [259.258] [AGENCY; FEE SCHEDULE; DISCLOSURE;
CIVIL ACTION.]
Subdivision 1. [PAYMENT SCHEDULE.] An agency may only
require payment of fees in stages as services are performed. An
agency engaged in placement activities must provide a
prospective adoptive parent with a schedule of fees and a
timeline indicating when each fee or portion of the total fees
for the agency services must be paid. The agency must also
provide a fee schedule for prefinalization postplacement
services.
Subd. 2. [DISCLOSURE TO BIRTH PARENTS AND ADOPTIVE
PARENTS.] An agency shall provide a disclosure statement written
in clear, plain language to be signed by the prospective
adoptive parents and birth parents, except that in inter-country
adoptions, the signatures of birth parents are not required.
The disclosure statement must contain the following information:
(1) fees charged to the adoptive parent, including any
policy on sliding scale fees or fee waivers and an itemization
of the amount that will be charged for the adoption study,
counseling, postplacement services, family of origin searches,
birth parent expenses authorized under section 259.271, or any
other services;
(2) timeline for the adoptive parent to make fee payments;
(3) likelihood, given the circumstances of the prospective
adoptive parent and any specific program to which the
prospective adoptive parent is applying, that an adoptive
placement may be made and the estimated length of time for
making an adoptive placement. These estimates must be based on
adoptive placements made with prospective parents in similar
circumstances applying to a similar program with the agency
during the immediately preceding three to five years. If an
agency has not been in operation for at least three years, it
must provide summary data based on whatever adoptive placements
it has made and may include a statement about the kind of
efforts it will make to achieve an adoptive placement, including
a timetable it will follow in seeking a child. The estimates
must include a statement that the agency cannot guarantee
placement of a child or a time by which a child will be placed;
(4) a statement of the services the agency will provide the
birth and adoptive parents;
(5) a statement prepared by the commissioner under section
259.2585 that explains the child placement and adoption process
and the respective legal rights and responsibilities of the
birth parent and prospective adoptive parent during the process
including a statement that the prospective adoptive parent is
responsible for filing an adoption petition not later than 24
months after the child is placed in the prospective adoptive
home;
(6) a statement regarding any information the agency may
have about attorney referral services, or about obtaining
assistance with completing legal requirements for an adoption;
and
(7) an acknowledgment to be signed by the birth parent and
prospective adoptive parent that they have received, read, and
had the opportunity to ask questions of the agency about the
contents of the disclosure statement.
Subd. 3. [CIVIL ACTION.] An action for damages, including
punitive damages, may be brought by a birth parent or
prospective adoptive parent aggrieved by:
(1) a violation of subdivision 1;
(2) the failure of an agency to provide services listed in
the disclosure form under subdivision 2, clause (4); or
(3) deceptive practices or misrepresentations made by an
agency about its services or ability to place children for
adoption.
Sec. 18. [259.2585] [COMMISSIONER'S STATEMENT.]
The commissioner shall prepare and make available to all
agencies, prospective adoptive parents, and birth parents a
short, plain description of the legal adoption process and the
rights and responsibilities of agencies, birth parents, and
prospective adoptive parents in the process.
Sec. 19. [259.2586] [ADOPTION STUDY.]
An adoption study and written report must be completed
before the child is placed in a prospective adoptive home under
this chapter and the study must be completed and filed with the
court at the time the adoption petition is filed. In a direct
adoptive placement, the report must be filed with the court in
support of a motion for temporary preadoptive custody under
section 259.2591, subdivision 3. The study and report shall be
completed by a licensed child-placing agency and must be
thorough and comprehensive. The study and report shall be paid
for by the prospective adoptive parent, except as otherwise
required under section 259.40 or 259.44.
A step-parent adoption is not subject to this section.
At a minimum, the study must include the following about
the prospective adoptive parent:
(1) a check of criminal conviction data, data on
substantiated maltreatment of a child under section 626.556, and
domestic violence data of each person over the age of 13 living
in the home. The prospective adoptive parents, the bureau of
criminal apprehension, and other state, county, and local
agencies, after written notice to the subject of the study,
shall give the agency completing the adoption study
substantiated criminal conviction data and reports about
maltreatment of minors and vulnerable adults and domestic
violence. The adoption study must also include a check of the
juvenile court records of each person over the age of 13 living
in the home. Notwithstanding provisions of section 260.161 to
the contrary, the juvenile court shall release the requested
information to the agency completing the adoption study. The
study must include an evaluation of the effect of a conviction
or finding of substantiated maltreatment on the ability to care
for a child;
(2) medical and social history and current health;
(3) assessment of potential parenting skills;
(4) ability to provide adequate financial support for a
child; and
(5) the level of knowledge and awareness of adoption issues
including where appropriate matters relating to interracial,
cross-cultural, and special needs adoptions.
The adoption study must include at least one in-home visit
with the prospective adoptive parent. The adoption study is the
basis for completion of a written report. The report must be in
a format specified by the commissioner and must contain
recommendations regarding the suitability of the subject of the
study to be an adoptive parent. An adoption study report is
valid for 12 months following its date of completion.
A prospective adoptive parent seeking a study under this
section must authorize access by the agency to any private data
needed to complete the study, must disclose any names used
previously other than the name used at the time of the study,
and must provide a set of fingerprints, which shall be forwarded
to the bureau of criminal apprehension to facilitate the
criminal conviction background check required under clause (1).
Sec. 20. [259.2587] [BIRTH PARENT HISTORY; COMMISSIONER'S
FORM.]
In any adoption under this chapter, except a stepparent
adoption, a birth parent or an agency shall provide a
prospective adoptive parent with a detailed social and medical
history of the birth families, if known after reasonable inquiry.
Each birth family history must be provided on a form prepared by
the commissioner in a manner so that the completed form protects
the identities of all individuals described in it. The
commissioner shall make the form available to agencies and court
administrators for public distribution. The birth family
history must be filed with the court when the adoption petition
is filed, or, in a direct adoptive placement, with the motion
for temporary preadoptive custody.
Sec. 21. [259.259] [STATE AUDIT OF ADOPTION AGENCY; CIVIL
ACTION.]
Subdivision 1. [AUDIT.] If the commissioner or attorney
general has good cause to believe that a child-placing agency
has violated section 259.258, subdivision 1, 259.271, 317A.907,
or any other applicable law dealing with fees, payments,
accounts, or financial disclosure by a child-placing agency, the
commissioner or the attorney general may seek a court order
requiring a financial audit of the agency, at the agency's
expense, by an auditor chosen by the commissioner or attorney
general.
Subd. 2. [CIVIL ACTION.] A court may grant equitable or
monetary relief that is just and reasonable in the circumstances
or may dissolve an adoption agency and liquidate its assets if
the assets of the agency are being misapplied or wasted. The
attorney general or the commissioner may bring an action in
district court if the directors or those in control of the
agency have misapplied or wasted assets of the agency or have
acted fraudulently, illegally, or in a manner unfairly
prejudicial toward a client of the agency in the capacity of a
director or one in control of the agency.
Sec. 22. [259.2591] [DIRECT ADOPTIVE PLACEMENT.]
Subdivision 1. [INTENT.] The intent of the provisions
governing direct adoptive placement is to safeguard the best
interests of the child by providing services and protections to
the child, birth parents, and adoptive parents which are
consistent with those available through an agency placement.
Subd. 2. [ADOPTION STUDY.] In a direct adoptive placement,
an adoption study and report under section 259.2586 must be
completed and filed with the court as required by subdivision 3.
Subd. 3. [PREADOPTIVE CUSTODY ORDER.] (a) Before a child
is placed in a prospective adoptive home by a birth parent or
legal guardian, other than an agency, the placement must be
approved by the district court in the county where the
prospective adoptive parent resides. An order under this
subdivision or subdivision 6 shall state that the prospective
adoptive parent's right to custody of the child is subject to
the birth parent's right to custody until the consents to the
child's adoption become irrevocable. At the time of placement,
prospective adoptive parents must have for the child qualifying
existing coverage as defined in section 62L.02, subdivision 24,
or other similar comprehensive health care coverage. The
prospective adoptive parent must meet the residence requirements
of section 259.22, subdivision 1, and must file with the court
an affidavit of intent to remain a resident of the state for at
least three months after the child is placed in the prospective
adoptive home. The prospective adoptive parent shall file with
the court a notice of intent to file an adoption petition and
submit a written motion seeking an order granting temporary
preadoptive custody. The notice and motion required under this
subdivision may be considered by the court ex parte, without a
hearing. The prospective adoptive parent shall serve a copy of
the notice and motion upon any parent whose consent is required
under section 259.24 or who is named in the affidavit required
under paragraph (b) of this subdivision if that person's mailing
address is known. The motion may be filed up to 60 days before
the placement is to be made and must include:
(1) the adoption study required under section 259.2586;
(2) affidavits from the birth parents indicating their
support of the motion, or, if there is no affidavit from the
birth father, an affidavit from the birth mother under paragraph
(b);
(3) an itemized statement of expenses that have been paid
and an estimate of expenses that will be paid by the prospective
adoptive parents to the birth parents, any agency, attorney, or
other party in connection with the prospective adoption;
(4) the name of counsel for each party, if any;
(5) a statement that the birth parents:
(i) have provided the social and medical history required
under section 259.2587 to the prospective adoptive parent;
(ii) have received the written statement of their legal
rights and responsibilities under section 259.2585; and
(iii) have been notified of their right to receive
counseling under subdivision 4; and
(6) the name of the agency chosen by the adoptive parent to
supervise the adoptive placement and complete the postplacement
adoption study required by subdivision 9.
The court shall review the expense statement submitted
under this subdivision to determine whether payments made or to
be made by the prospective adoptive parent are lawful and in
accordance with section 259.271, subdivision 1.
(b) If the birth mother submits the affidavit required in
paragraph (a), clause (2), but the birth father fails to do so,
the birth mother must submit an additional affidavit that
describes her good faith efforts or efforts made on her behalf
to identify and locate the birth father for purposes of securing
his consent. In the following circumstances the birth mother
may instead submit an affidavit stating on which ground she is
exempt from making efforts to identify and locate the father:
(1) the child was conceived as the result of incest or
rape;
(2) efforts to locate the father by the affiant or anyone
acting on the affiant's behalf could reasonably result in
physical harm to the birth mother or child; or
(3) efforts to locate the father by the affiant or anyone
acting on the affiant's behalf could reasonably result in severe
emotional distress of the birth mother or child.
A court shall consider the motion for temporary preadoptive
custody within 30 days of receiving the motion or by the
anticipated placement date stated in the motion, whichever comes
sooner.
Subd. 4. [BIRTH PARENT COUNSELING.] In a direct adoptive
placement the prospective adoptive parent must notify the birth
parent that the birth parent has a right to receive counseling
about adoption issues at the expense of the prospective adoptive
parent. The prospective adoptive parent must bear the cost of
counseling upon the request of a birth parent at any time
between conception of child and six months after the birth of
the child or the placement in the adoptive home, whichever is
later. The prospective adoptive parent shall not be responsible
for the cost of more than 35 hours of counseling under this
subdivision. A birth parent may waive the right to receive
counseling under this subdivision.
Subd. 5. [BIRTH PARENT LEGAL COUNSEL.] Upon the request of
a birth parent, separate legal counsel must be made available to
the birth parent at the expense of the prospective adoptive
parent for legal services provided in a direct adoptive
placement. The prospective adoptive parent shall only be
required to provide legal counsel for one birth parent unless
the birth parents elect joint legal representation. The right
to legal counsel under this subdivision shall continue until
consents become irrevocable, but not longer than 70 days after
placement. If consents have not been executed within 60 days of
placement, the right to counsel under this subdivision shall end
at that time. A birth parent may waive this right only by a
written waiver signed and submitted to the court at the time
consents are executed under subdivision 7. Representation of a
birth parent and a prospective adoptive parent by the same
attorney is prohibited.
Subd. 6. [EMERGENCY ORDER.] (a) A court may issue an
emergency order granting temporary preadoptive custody of a
child to a prospective adoptive parent for up to 14 days if the
following conditions are met:
(1) the motion is supported by:
(i) a completed adoption study which meets the requirements
of section 259.2586; or
(ii) affidavits from each prospective adoptive parent
stating whether they or any person residing in the household
have been convicted of a crime or are the subject of an open
investigation of, or have been the subject of a substantiated
allegation of, child or vulnerable-adult abuse within the past
ten years. If so, a complete description of the crime, open
investigation, or substantiated abuse and a complete description
of any sentence, treatment, or disposition must be included.
If, at any time before the adoption is final, a court receives
evidence leading it to conclude that a prospective adoptive
parent knowingly gave false information in this affidavit, it
shall be presumed that the placement of the child with the
adoptive parent is not in the best interests of the child; and
(iii) the information required by section 259.2591,
subdivision 3, paragraph (a), clause (2), and clause (5), items
(ii) and (iii); and
(iv) affidavits from the prospective adoptive parent and
birth parent indicating that an emergency order is needed
because of the unexpected premature birth of the child or other
specifically described extraordinary circumstances which
prevented the completion of the requirements of section
259.2591; and
(2) the court concludes from the record submitted that the
emergency order will preserve the health and safety of the child.
(b) An order granting or denying the motion shall be issued
under this section within 24 hours of the time it is brought.
Notwithstanding section 259.23, any judge of district court may
consider a motion brought under this subdivision. An order
granting the motion shall direct that an adoption study be
commenced immediately, if that has not occurred, and that the
agency conducting the study shall supervise the emergency
placement.
(c) An emergency order under this subdivision expires 14
days after it is issued. If the requirements of subdivision 3
are completed and a preadoptive custody motion is filed on or
before the expiration of the emergency order, placement may
continue until the court rules on the motion. The court shall
consider the preadoptive custody motion within seven days of
filing.
Subd. 7. [CONSENT; TIME FRAME; HEARING; VENUE;
COMMISSIONER'S FORM.] Not sooner than 72 hours after the birth
of a child and not later than 60 days after the child's
placement in a prospective adoptive home under this section, a
person whose consent is required under section 259.24 shall
execute a consent. A birth parent, whose consent is required
under section 259.24 and who has chosen not to receive
counseling through a licensed agency or a licensed social
services professional trained in adoption issues, shall appear
before a judge or judicial officer to sign the written consent
to the child's adoption by the prospective adoptive parent who
has temporary preadoptive custody of the child. Notwithstanding
where the prospective adoptive parent resides, the consent
hearing may be held in any county in this state where the birth
parent is found. If a birth parent has chosen to receive
counseling through a licensed agency or a licensed social
services professional trained in adoption issues, the birth
parent may choose to execute a written consent under section
259.24, subdivision 5. A person whose consent is required under
section 259.24, subdivision 2, may choose to execute consent at
a judicial hearing as described in this section or under the
procedures in section 259.24, subdivision 5.
The consent becomes irrevocable on the tenth working day
after it is given, except that if the consent was obtained by
fraud, proceedings to determine the existence of fraud shall be
governed by section 259.24, subdivision 6a. Until the consent
becomes irrevocable, the child shall be returned to the birth
parent upon request.
The written consent under this subdivision must state that:
(1) the birth parent has had the opportunity to consult
with independent legal counsel at the expense of the prospective
adoptive parent, unless the birth parent knowingly waived the
opportunity;
(2) the birth parent was notified of the right to receive
counseling at the expense of the prospective adoptive parent and
has chosen to exercise or waive that right; and
(3) the birth parent was informed that if the birth parent
withdraws consent, the prospective adoptive parent cannot
require the birth parent to reimburse any costs the prospective
adoptive parent has incurred in connection with the adoption,
including payments made to or on behalf of the birth parent.
If a birth parent has chosen to have legal counsel, the
attorney must be present at the execution of consents. If a
birth parent waives counsel, the written waiver must be filed
with the consent under this subdivision.
The consent signed under this subdivision must be on a form
prepared by the commissioner and made available to agencies and
court administrators for public distribution.
Subd. 8. [NOTICE AND CONSENT DEADLINE; CONSENT HEARING;
BIRTH PARENT NOT APPEARING.] (a) With the exception of a person
who receives notice under paragraph (b), if a birth parent whose
consent is required under section 259.24 does not appear at a
consent hearing under this section, the agency which is
supervising the placement shall notify the court and the court
shall issue an order regarding continued placement of the
child. The court shall order the local social service agency to
determine whether to commence proceedings for termination of
parental rights on grounds of abandonment as defined in section
260.221. The court may disregard the six and 12-month
requirements of section 260.221, paragraph (b), clause (1), item
(i), in finding abandonment if the birth parent has failed to
execute a consent within the time required under this section
and has made no effort to obtain custody of the child.
(b) A birth parent who intends to consent to the adoption
of a child shall notify the other birth parent of that fact if
the other birth parent's consent to the adoption is required
under section 259.24, subdivision 1, at the time of placement.
Notice shall be provided to the other birth parent by personal
service in the manner provided in the rules of civil procedure
for service of a summons and complaint within 72 hours of the
date on which the child is placed. The notice shall inform the
birth parent of the notifying birth parent's intent regarding
consent to adoption and shall notify the receiving birth parent
that, not later than 60 days after the date of service, the
birth parent must either consent or refuse to consent to the
adoption. On the sixty-first day following service of the
notice required under this subdivision, a birth parent who fails
to take either of these actions, is deemed to have consented to
the child's adoption regarding the child.
Subd. 9. [POSTPLACEMENT ADOPTION STUDY AND REPORT.] The
agency designated by the prospective adoptive parent under
subdivision 3, paragraph (a), clause (6), shall complete a
postplacement adoption report and file it with the court with
which the adoption petition has been filed not later than 90
days after the filing of a petition for adoption.
At a minimum, the report must include the following
information:
(1) assessment of adaptation by the prospective adoptive
parents to parenting the child;
(2) assessment of the health and well-being of the child in
the prospective adoptive parents' home;
(3) analysis of the level of incorporation by the child
into the prospective adoptive parents' home, extended family and
community; and
(4) assessment of the level of incorporation of the child's
previous history into the prospective adoptive home, such as
cultural or ethnic practices, or contact with former foster
parents, or biological relatives.
If the consent hearing is held in a county other than where
the prospective adoptive parent resides, the court shall forward
a copy of its order to the district court in the county where
the prospective adoptive parent resides. The report shall be
filed with the local social service agency in the county where
the prospective adoptive parent resides. The local social
service agency may seek a court order to remove the child from
the prospective adoptive home, if the report so recommends and
the agency finds that continued placement in the adoptive home
endangers the physical or emotional health of the child. A
postplacement adoption report is valid for 12 months after its
date of completion.
Subd. 10. [RECORDS.] All records filed with the court in a
direct adoptive placement under this section must be permanently
maintained by the agency which completed the adoption study.
Notwithstanding the provisions of section 259.31, an agency
shall, upon request, be given any court records needed to
provide post-adoption services pursuant to section 259.47 at the
request of adoptive parents, birth parents, or adopted
individuals age 19 or older.
Subd. 11. [PENALTY.] It is a gross misdemeanor for a
person, not being the commissioner or an agency, knowingly to
engage in placement activities as defined in section 259.21,
subdivision 9, without being licensed by the commissioner under
chapter 245A, except as authorized by section 245A.03,
subdivision 2.
This offense shall be prosecuted by the county attorney.
Sec. 23. Minnesota Statutes 1992, section 259.27,
subdivision 1, is amended to read:
Subdivision 1. [COMMISSIONER'S NOTICE TO COMMISSIONER;
COUNTY DUTIES.] Upon the filing of a petition for adoption of a
child the court administrator shall immediately transmit a copy
of the petition to the commissioner of human services. The
commissioner and the local social services agency of the county
in which the prospective adoptive parent lives. Except as
provided in subdivision 2, the local social services agency
shall verify the allegations of the petition, investigate the
conditions and antecedents of the child for the purpose of
ascertaining whether the child is a proper subject for adoption,
and make appropriate inquiry to ascertain whether the proposed
foster adoptive home and the child are suited to each other and
whether the proposed foster home adoption meets the preferences
described in section 259.28, subdivision 2. The report of the
county welfare board submitted to the commissioner of human
services bearing on the suitability of the proposed foster home
and the child to each other shall be confidential, and the
records of the county welfare board or the contents thereof of
them shall not be disclosed either directly or indirectly to any
person other than the commissioner of human services or a judge
of the court having jurisdiction of the matter. Within 90 days
after the receipt of said the copy of the petition the
commissioner local social services agency shall submit to the
court and the commissioner a full report in writing with
recommendations as to the granting of the petition. If such the
report is not returned within the 90 days, without fault of
petitioner, the court may hear the petition upon giving
the commissioner local social services agency five days notice
by mail of the time and place of the hearing. If such the
report disapproves of the adoption of the child,
the commissioner local social services agency may recommend that
the court dismiss the petition.
Sec. 24. Minnesota Statutes 1992, section 259.27,
subdivision 2, is amended to read:
Subd. 2. [ADOPTION AGENCIES.] Notwithstanding the
provisions of subdivision 1, if the child to be adopted has been
committed to the guardianship of an agency pursuant to section
260.241, or if the child has been surrendered to an agency
pursuant to section 259.25, or the child's direct adoptive
placement is being supervised by an agency pursuant to section
259.2591 the court, in its discretion, may shall refer the
adoption petition to such the agency, or, if the adopting parent
has a stepparent relationship to the child, to the county
welfare department of the county in which the adoption is
pending. The agency or county welfare department, within 90
days of receipt of a copy of the adoption petition, shall file
with the court a report of its investigation of the environment
and antecedents of the child to be adopted and of the home of
the petitioners and its determination whether the home of the
petitioners meets the preferences described in section 259.28,
subdivision 2. If such the report disapproves of the adoption
of the child, the agency or county welfare department may
recommend that the court dismiss the petition. In the case of a
direct adoptive placement under section 259.2591, a
postplacement adoption study completed under subdivision 9 of
that section shall be considered as meeting the requirement for
a report under this section.
Sec. 25. Minnesota Statutes 1992, section 259.27,
subdivision 5, is amended to read:
Subd. 5. [RESIDENCE AND INVESTIGATION WAIVED; STEPPARENT.]
Such The investigation and period of residence required by this
section may be waived by the court when the petition for
adoption is submitted by a stepparent or when, upon good cause
being shown, the court is satisfied that the proposed adoptive
home and the child are suited to each other, but in either event
at least ten working days notice of the hearing shall be given
to the commissioner local social services agency by certified
mail. The reports of investigations shall be a part of the
court files in the case, unless otherwise ordered by the court.
Sec. 26. Minnesota Statutes 1992, section 259.27, is
amended by adding a subdivision to read:
Subd. 6. [FEES AND PAYMENTS; FILING WITH ADOPTION
PETITION.] Upon the filing of a petition for adoption, an agency
shall file with the court a statement of expenses that have been
paid or are required to be paid by the prospective adoptive
parent in connection with the adoption. In a direct adoptive
placement the statement of expenses shall be filed by the
prospective adoptive parent.
Sec. 27. [259.271] [PAYMENT OF BIRTH PARENT EXPENSES;
PENALTY.]
Subdivision 1. [AUTHORIZED PAYMENTS.] In any adoption
under this chapter, a prospective adoptive parent or anyone
acting in concert with, at the direction of, or on behalf of a
prospective adoptive parent may pay only the following expenses
of the birth parent:
(1) reasonable counseling, medical, and legal fees, which
shall be paid directly to the provider of the service;
(2) reasonable expenses for transportation, meals, and
lodging incurred for placement of the child;
(3) reasonable expenses for adoption services provided by
an agency at the request of the birth parent, which shall be
paid directly to the agency; and
(4)(i) reasonable living expenses of the birth mother which
are needed to maintain an adequate standard of living which the
birth mother is unable to otherwise maintain because of loss of
income or other support resulting from the pregnancy. The
payments may cover expenses incurred during the
pregnancy-related incapacity but not for a period longer than
six weeks following delivery;
(ii) the payment shall not be contingent upon placement of
the child for adoption, consent to adoption, or cooperation in
the completion of the adoption; and
(iii) reasonable living expenses does not include expenses
for lost wages, gifts, educational expenses, or other similar
expenses of the birth mother.
Subd. 2. [NO BIRTH PARENT REIMBURSEMENT TO ADOPTIVE
PARENT.] A contract purporting to require a birth parent to
reimburse a prospective adoptive parent for such payments under
any circumstances, including circumstances in which a birth
parent refuses to consent to adoption or withdraws consent to
adoption, is void as against public policy.
Subd. 3. [PROHIBITED PAYMENTS; PENALTY.] (a) Except as
authorized under subdivision 1, it is a gross misdemeanor for an
individual to give, or for a birth parent to accept, money or
anything of value, or compensation for the placement of a child
for adoption.
(b) It is a gross misdemeanor for any person to give money
or anything of value to the birth parent of a child if the
person is engaged or has engaged in any placement activity, as
defined in section 259.21, subdivision 9, in connection with the
adoption of the child.
(c) An offense under this subdivision shall be prosecuted
by the county attorney.
Sec. 28. Minnesota Statutes 1992, section 259.31, is
amended to read:
259.31 [HEARINGS, CONFIDENTIAL.]
All hearings held in proceedings under sections 259.21 to
259.32 shall be confidential and shall be held in closed court
without admittance of any persons other than the petitioners,
their witnesses, the commissioner of human services or an
agency, or their authorized representatives, attorneys, and
persons entitled to notice by sections 259.21 to 259.32, except
by order of the court. The files and records of the court in
adoption proceedings shall not be open to inspection by any
person except the commissioner of human services or the
commissioner's representatives, an agency acting under section
259.2591, subdivision 10, or upon an order of the court
expressly so permitting pursuant to a petition setting forth the
reasons therefor.
Sec. 29. Minnesota Statutes 1992, section 317A.907,
subdivision 6, is amended to read:
Subd. 6. [EXPENSE REIMBURSEMENT.] (a) An organization,
association, or society licensed by the commissioner of human
services may receive payment for expenses related to adoption
services in an amount that fairly reflects the agency's
reasonable and necessary expenses of:
(1) adoptive counseling, whether or not legal adoption is
completed;
(2) provision of services to children before adoptive
placement; or
(3) the supervision of children in the home until legal
adoption is completed; or
(4) expenses of a birth parent authorized under section
259.271 if paid to the agency to forward to the birth parent.
Only that part of the expenses may be requested that the
person seeking to adopt is financially able to meet. No person
may be barred from receiving a child for adoption because of
inability to pay part of the expenses referred to in this
subdivision. In addition to other reports as may be required, a
licensed agency shall file annually with the commissioner of
human services a full accounting of expense reimbursement
received under this subdivision, together with the record of the
services given for which the reimbursement was made. If the
person returns the child to the corporation, the person may not
receive compensation for the care, clothing, or medical expenses
of the child. This paragraph does not preclude voluntary
contributions by an individual or organization. A pledge by an
adoption applicant to make a voluntary contribution is voidable
at the option of the person pledging.
(b) No organization, association, or society is eligible to
receive an expense reimbursement from a person who takes a child
into the person's home or who adopts a child during the first 12
months that the organization, association, or society is
licensed by the commissioner of human services.
Sec. 30. [ADOPTION ADVISORY COMMITTEE REPORT.]
The commissioner of human services shall use an advisory
committee including birth parents, adoptive parents, adopted
adults, county agencies, private adoption agencies, consumer
advocates, representatives of the state councils of color, and
the legal community to make recommendations on further changes
needed in order to protect children placed for the purpose of
adoption, birth parents or guardians, and prospective adoptive
parents. A report with recommendations for state law changes
must be made to the governor and the legislature no later than
February 1, 1995.
Sec. 31. [INSTRUCTIONS TO THE REVISOR.]
(a) In the next and subsequent editions of Minnesota
Statutes, the revisor shall change the terms "natural parent"
and "genetic parent" to "birth parent" wherever they appear.
(b) In the next and subsequent editions of Minnesota
Statutes, the revisor shall change the terms "county welfare
board" and "county welfare department" to "local social services
agency" wherever they appear.
(c) In the next and subsequent editions of Minnesota
Statutes, the revisor shall renumber chapter 259 in order to
eliminate seven-digit section numbers and make more room for
future sections. The revisor shall also correct all
cross-references in Minnesota Statutes and Minnesota Rules to
reflect the new section numbers in chapter 259.
Presented to the governor May 6, 1994
Signed by the governor May 10, 1994, 3:44 p.m.
Official Publication of the State of Minnesota
Revisor of Statutes