Minnesota Session Laws - 2017, Regular Session

CHAPTER 60--H.F.No. 1702

An act

relating to juvenile justice; children 10 and over informed of the right to counsel; extended representation; waivers of counsel required in writing; notice to counsel required;

amending Minnesota Statutes 2016, sections 260C.163, subdivisions 3, 10; 260C.607, subdivision 2.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 260C.163, subdivision 3, is amended to read:

Subd. 3.

Appointment of counsel.

(a) The child, parent, guardian or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court as provided in this subdivision.

(b) Except in proceedings where the sole basis for the petition is habitual truancy, if the child deleted text begin , parent, guardian, or custodian deleted text end desires counsel but is unable to employ it, the court shall appoint counsel to represent the child who is ten years of age or older under section 611.14, clause (4), or new text begin other counsel at public expense. new text end

new text begin (c) Except in proceedings where the sole basis for the petition is habitual truancy, if the parent, guardian, or custodian desires counsel but is unable to employ it, the court shall appoint counsel to represent new text end the parent, guardian, or custodian in any case in which it feels that such an appointment is appropriate if the person would be financially unable to obtain counsel under the guidelines set forth in section 611.17 new text begin . Court appointed counsel shall be at county expense as outlined in paragraph (h) new text end .

deleted text begin (c) deleted text end new text begin (d) In any proceeding where the subject of a petition for a child in need of protection or services is ten years of age or older, the responsible social services agency shall, within 14 days after filing the petition or at the emergency removal hearing under section 260C.178, subdivision 1, if the child is present, fully and effectively inform the child of the child's right to be represented by appointed counsel upon request and shall notify the court as to whether the child desired counsel. Information provided to the child shall include, at a minimum, the fact that counsel will be provided without charge to the child, that the child's communications with counsel are confidential, and that the child has the right to participate in all proceedings on a petition, including the opportunity to personally attend all hearings. The responsible social services agency shall also, within 14 days of the child's tenth birthday, fully and effectively inform the child of the child's right to be represented by counsel if the child reaches the age of ten years while the child is the subject of a petition for a child in need of protection or services or is a child under the guardianship of the commissioner. new text end

new text begin (e) new text end In any proceeding where the sole basis for the petition is habitual truancy, the child, parent, guardian, and custodian do not have the right to appointment of a public defender or other counsel at public expense. However, before any out-of-home placement, including foster care or inpatient treatment, can be ordered, the court must appoint a public defender or other counsel at public expense in accordance with this subdivision.

deleted text begin (d) deleted text end new text begin (f) new text end Counsel for the child shall not also act as the child's guardian ad litem.

deleted text begin (e) deleted text end new text begin (g) new text end In any proceeding where the subject of a petition for a child in need of protection or services is not represented by an attorney, the court shall determine the child's preferences regarding the proceedings, new text begin including informing the child of the right to appointed counsel and asking whether the child desires counsel, new text end if the child is of suitable age to express a preference.

deleted text begin (f) deleted text end new text begin (h) new text end Court-appointed counsel for the parent, guardian, or custodian under this subdivision is at county expense. If the county has contracted with counsel meeting qualifications under paragraph deleted text begin (g) deleted text end new text begin (i) new text end , the court shall appoint the counsel retained by the county, unless a conflict of interest exists. If a conflict exists, after consulting with the chief judge of the judicial district or the judge's designee, the county shall contract with competent counsel to provide the necessary representation. The court may appoint only one counsel at public expense for the first court hearing to represent the interests of the parents, guardians, and custodians, unless, at any time during the proceedings upon petition of a party, the court determines and makes written findings on the record that extraordinary circumstances exist that require counsel to be appointed to represent a separate interest of other parents, guardians, or custodians subject to the jurisdiction of the juvenile court.

deleted text begin (g) deleted text end new text begin (i) new text end Counsel retained by the county under paragraph deleted text begin (f) deleted text end new text begin (h) new text end must meet the qualifications established by the Judicial Council in at least one of the following: (1) has a minimum of two years' experience handling child protection cases; (2) has training in handling child protection cases from a course or courses approved by the Judicial Council; or (3) is supervised by an attorney who meets the minimum qualifications under clause (1) or (2).

Sec. 2.

Minnesota Statutes 2016, section 260C.163, subdivision 10, is amended to read:

Subd. 10.

Waiver.

(a) Waiver of any right which a child has under this chapter must be an express waiver new text begin made new text end voluntarily deleted text begin and deleted text end new text begin , new text end intelligently deleted text begin made deleted text end new text begin , and in writing new text end by the child after the child has been fully and effectively informed of the right deleted text begin being waived deleted text end new text begin to counsel and after consulting with an appointed attorney new text end .

(b) Waiver of a child's right to be represented by counsel provided under the juvenile court rules must be an express waiver new text begin made new text end voluntarily deleted text begin and deleted text end new text begin , new text end intelligently deleted text begin made deleted text end new text begin , and in writing new text end by the child after the child has been fully and effectively informed of the right being waived new text begin by the responsible social services agency and consultation with an appointed attorney new text end . In determining whether a child has voluntarily and intelligently waived the right to counsel, the court shall look to the totality of the circumstances which includes but is not limited to the child's age, maturity, intelligence, education, experience, and ability to comprehend, and the presence and competence of the child's parents, guardian, or guardian ad litem. new text begin The court shall not permit the child's parent, other person legally responsible for the child's care, or the child's guardian ad litem to waive the child's right to be represented by counsel. new text end If the court accepts the child's waiver, it shall state on the record the findings and conclusions that form the basis for its decision to accept the waiver.

Sec. 3.

Minnesota Statutes 2016, section 260C.607, subdivision 2, is amended to read:

Subd. 2.

Notice.

Notice of review hearings shall be given by the court to:

(1) the responsible social services agency;

(2) the child, if the child is age ten and older;

(3) the child's guardian ad litem;

(4) new text begin counsel appointed for the child pursuant to section 260C.163, subdivision 3; new text end

new text begin (5) new text end relatives of the child who have kept the court informed of their whereabouts as required in section 260C.221 and who have responded to the agency's notice under section 260C.221, indicating a willingness to provide an adoptive home for the child unless the relative has been previously ruled out by the court as a suitable foster parent or permanency resource for the child;

deleted text begin (5) deleted text end new text begin (6) new text end the current foster or adopting parent of the child;

deleted text begin (6) deleted text end new text begin (7) new text end any foster or adopting parents of siblings of the child; and

deleted text begin (7) deleted text end new text begin (8) new text end the Indian child's tribe.

Sec. 4.

new text begin SHORT TITLE AND CITATION. new text end

new text begin This law may be cited as "McKenna's Law." new text end

Presented to the governor May 15, 2017

Signed by the governor May 17, 2017, 3:51 p.m.