Office of the Revisor of Statutes
Minnesota Session Laws - 1997, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 112-S.F.No. 813
An act relating to children; providing for transfer of
custody of a child to a relative by a consent decree;
authorizing communication or contact agreements
between adoptive parents and birth parents; providing
for a relative conference and relative care agreement
following a report of child abuse or neglect; amending
Minnesota Statutes 1996, sections 257.02; 259.59, by
adding a subdivision; 260.191, subdivision 3b;
260.241, subdivision 1; and 518.158; proposing coding
for new law in Minnesota Statutes, chapters 257; 259;
and 626.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1996, section 257.02, is
amended to read:
257.02 [SURRENDER OF PARENTAL RIGHTS.]
No person other than the parents or relatives may assume
the permanent care and custody of a child under 14 years of age
unless authorized so to do by an order or decree of court.
However, if a parent of a child who is being cared for by a
relative dies, or if the parent is not or cannot fulfill
parental duties with respect to the child, the relative may
bring a petition under section 260.131. Except in proceedings
for adoption or by a consent decree entered under section
257.0215, no parent may assign or otherwise transfer to another
parental rights or duties with respect to the permanent care and
custody of a child under 14 years of age. Any such transfer
shall be void.
Sec. 2. [257.0215] [CUSTODY CONSENT DECREE.]
A parent may transfer legal and physical custody of a child
to a relative by a consent decree entered under this section.
The court may approve a proposed consent decree if the custody
arrangement is in the best interests of the child and all
parties to the decree agree to it after being fully informed of
its contents. A consent decree under this section must:
(1) transfer legal and physical custody of the child to a
named relative and state that this includes the ability to
determine the child's residence; make decisions regarding the
child's education, religious training, and health care; and
obtain information and public services on behalf of the child in
the same manner as a parent;
(2) indicate whether the transfer of custody is temporary
or permanent; and
(3) include an order for child support in the guidelines
amount and an allocation of child care costs as provided by
section 518.551, subject to income withholding under sections
518.611 and 518.613, and section 518.6111, if enacted, and
including an order for medical support under section 518.171.
Either a parent or a relative who is party to a consent
decree under this section may file a motion to modify or
terminate the consent decree at any time. A party who has
custody of a child under this section must seek modification of
the consent decree before transferring physical or legal custody
of the child to anyone.
For purposes of this section, "relative" means an adult who
is a stepparent, grandparent, brother, sister, uncle, aunt, or
other extended family member of a minor by blood, marriage, or
adoption.
Sec. 3. [259.58] [COMMUNICATION OR CONTACT AGREEMENTS.]
If an adoptee has resided with a birth relative before
being adopted, adoptive parents and that relative may enter an
agreement under this section regarding communication with or
contact between a minor adoptee, adoptive parents, and a birth
relative. For purposes of this section, "birth relative" means
a parent, stepparent, grandparent, brother, sister, uncle, or
aunt of a minor adoptee. This relationship may be by blood or
marriage. For an Indian child, birth relative includes members
of the extended family as defined by the law or custom of the
Indian child's tribe or, in the absence of laws or custom,
nieces, nephews, or first or second cousins, as provided in the
Indian Child Welfare Act, United States Code, title 25, section
1903.
(a) An agreement regarding communication with or contact
between minor adoptees, adoptive parents, and a birth relative
is not legally enforceable unless the terms of the agreement are
contained in a written court order entered in accordance with
this section. An order must be sought at the same time a
petition for adoption is filed. The court shall not enter a
proposed order unless the terms of the order have been approved
in writing by the prospective adoptive parents, a birth relative
who desires to be a party to the agreement, and, if the child is
in the custody of an agency, a representative of the agency. An
agreement under this section need not disclose the identity of
the parties to be legally enforceable. The court shall not
enter a proposed order unless the court finds that the
communication or contact between the minor adoptee, the adoptive
parents, and a birth relative as agreed upon and contained in
the proposed order would be in the minor adoptee's best
interests.
(b) Failure to comply with the terms of an agreed order
regarding communication or contact that has been entered by the
court under this section is not grounds for:
(1) setting aside an adoption decree; or
(2) revocation of a written consent to an adoption after
that consent has become irrevocable.
(c) An agreed order entered under this section may be
enforced by filing a petition or motion with the family court
that includes a certified copy of the order granting the
communication, contact, or visitation, but only if the petition
or motion is accompanied by an affidavit that the parties have
mediated or attempted to mediate any dispute under the agreement
or that the parties agree to a proposed modification. The
prevailing party may be awarded reasonable attorney's fees and
costs. The court shall not modify an agreed order under this
section unless it finds that the modification is necessary to
serve the best interests of the minor adoptee, and:
(1) the modification is agreed to by the adoptive parent
and the birth parent or parents; or
(2) exceptional circumstances have arisen since the agreed
order was entered that justify modification of the order.
Sec. 4. Minnesota Statutes 1996, section 259.59, is
amended by adding a subdivision to read:
Subd. 3. This section does not prohibit birth relatives
and adoptive parents from entering a communication or contact
agreement under section 259.58.
Sec. 5. Minnesota Statutes 1996, 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 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 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; 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. An adoption
ordered under this subdivision may include an agreement for
communication or contact under section 259.58; 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 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) 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.
(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. If required, reviews must
take place no less frequently than every six months.
(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.
(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.
Sec. 6. Minnesota Statutes 1996, section 260.241,
subdivision 1, is amended to read:
Subdivision 1. If, after a hearing, the court finds by
clear and convincing evidence that one or more of the conditions
set out in section 260.221 exist, it may terminate parental
rights. Upon the termination of parental rights all rights,
powers, privileges, immunities, duties, and obligations,
including any rights to custody, control, visitation, or support
existing between the child and parent shall be severed and
terminated and the parent shall have no standing to appear at
any further legal proceeding concerning the child. Provided,
however, that a parent whose parental rights are terminated:
(1) shall remain liable for the unpaid balance of any
support obligation owed under a court order upon the effective
date of the order terminating parental rights; and
(2) may be a party to a communication or contact agreement
under section 259.58.
Sec. 7. Minnesota Statutes 1996, section 518.158, is
amended to read:
518.158 [GRANDPARENT RELATIVE EX PARTE TEMPORARY CUSTODY
ORDER.]
Subdivision 1. [FACTORS.] It is presumed to be in the best
interests of the child for the court to grant temporary custody
to a grandparent relative under subdivision 2 if a minor child
has resided with the grandparent relative for a period of 12
months or more and the following circumstances exist without
good cause:
(1) the parent has had no contact with the child on a
regular basis and no demonstrated, consistent participation in
the child's well-being for six months; or
(2) the parent, during the time the child resided with the
grandparent relative, has refused or neglected to comply with
the duties imposed upon the parent by the parent and child
relationship, including but not limited to providing the child
necessary food, clothing, shelter, health care, education, and
other care and control necessary for the child's physical,
mental, or emotional health and development.
Subd. 2. [EMERGENCY CUSTODY HEARING.] If the parent seeks
to remove the child from the home of the grandparent relative
and the factors in subdivision 1 exist, the grandparent relative
may apply for an ex parte temporary order for custody of the
child. The court shall grant temporary custody if it finds,
based on the application, that the factors in subdivision 1
exist. If it finds that the factors in subdivision 1 do not
exist, the court shall order that the child be returned to the
parent. An ex parte temporary custody order under this
subdivision is good effective for a fixed period not to exceed
14 days. A temporary custody hearing under this chapter must be
set for not later than seven days after issuance of the ex parte
temporary custody order. The parent must be promptly served
with a copy of the ex parte order and the petition and notice of
the date for the hearing.
Subd. 3. [FURTHER PROCEEDINGS.] If the court orders
temporary physical custody to the grandparent relative under
subdivision 2 and the grandparent relative or parent seeks to
pursue further temporary or permanent custody of the child, the
custody issues must be determined pursuant to a petition under
this chapter and the other standards and procedures of this
chapter apply. This section does not affect any rights or
remedies available under other law.
Subd. 4. [RETURN TO PARENT.] If the court orders permanent
custody to a grandparent relative under this section, the court
shall set conditions the parent must meet in order to obtain
custody. The court may notify the parent that the parent may
request assistance from the local social service agency in order
to meet the conditions set by the court.
Subd. 5. [DEFINITION.] For purposes of this section,
"relative" means an adult who is a stepparent, grandparent,
brother, sister, uncle, aunt, or other extended family member of
the minor by blood, marriage, or adoption.
For an Indian child, "relative" includes members of the
extended family as defined by the law or custom of the Indian
child's tribe or, in the absence of law or custom, nieces,
nephews, or first or second cousins, as provided in the Indian
Child Welfare Act of 1978, United States Code, title 25, section
1903.
Sec. 8. [626.5565] [RELATIVE CARE AGREEMENT.]
Subdivision 1. [DEFINITIONS.] (a) For purposes of this
section, "relative" means an adult who is a stepparent,
grandparent, brother, sister, uncle, aunt, or other extended
family member of the minor by blood, marriage, or adoption.
For an Indian child, "relative" includes members of the
extended family as defined by the law or custom of the Indian
child's tribe or, in the absence of law or custom, nieces,
nephews, or first or second cousins, as provided in the Indian
Child Welfare Act of 1978, United States Code, title 25, section
1903.
(b) For purposes of this section, "relative care" means one
or more of the following: respite care, a monitoring agreement,
a designated parent agreement under chapter 257A, access to
information about a child, the right to make decisions about a
child's residence, education, religious training, or health
care, a custody consent decree under section 257.0215, or joint
or sole legal or physical custody of a child.
(c) For purposes of this section, "relative care agreement"
means an agreement regarding the care of a child that has been
reached by the parents and interested relatives of the child
after the parents and interested relatives have participated in
a facilitated relative care conference under this section.
Subd. 2. [RELATIVE CARE CONFERENCE.] If, upon assessment
of a report of neglect or physical or sexual abuse under section
626.556, a local social service agency determines that child
protective services are needed, the local social service agency
may proceed under this section if it appears from the
circumstances of the individual case that a relative care
agreement may be in the best interests of the child. The local
social service agency may select a facilitator to convene a
relative care conference. A facilitator must be certified under
chapter 494.
Written notice of the conference must be provided to the
parents and to all relatives who have expressed an interest in
participating or have been identified by other relatives. The
notice must state that the purpose of the conference is to
provide an opportunity for the parents and relatives to reach an
agreement regarding the care of the child and explain the forms
of relative care listed in subdivision 1. The notice must also
inform the parents and relatives of the potential consequences
and range of options if they do not enter into a relative care
agreement that is in the best interests of the child and that
the local service agency may intervene with protective services
or determine that the child should be placed out of the home.
The local social service agency shall participate in a
relative care conference for the purposes of protecting the
child's best interests but may not be a party to a relative care
agreement reached by the parents and any participating
relatives. A relative care agreement remains in effect unless
it expires by its own terms or a parent or a relative who is a
party to the agreement seeks to modify or end the agreement. If
a relative care agreement results in a transfer of physical
custody under section 257.0215 or chapter 518, a parent who
seeks to have the child returned to the home of the parent
without the consent of the relative with whom the child is
staying shall file a motion with the court that approved the
custody consent decree or ordered the transfer of custody under
chapter 518. The parent has the burden of establishing that:
(1) the conditions that led to the transfer of physical
custody have been corrected; and
(2) the parent has demonstrated the ability to care for and
provide a stable home for the child.
Sec. 9. [EFFECTIVE DATE.]
Sections 1 to 8 are effective July 1, 1997.
Presented to the governor May 7, 1997
Signed by the governor May 8, 1997, 11:13 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes