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Office of the Revisor of Statutes

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.