259.47 MS 1992 [Renumbered
259.47 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
Subd. 2. Adoption study.
In a direct adoptive placement, an adoption study and report under
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 preadoptive custody order must include any agreement
reached between the prospective adoptive parent and the birth parent regarding authority to
make decisions after placement for medical care of the child and responsibility for payment for
medical care not provided by the adoptive parent's existing 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
or who is named in the affidavit required under paragraph (b)
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
(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
prospective adoptive parent;
(ii) have received the written statement of their legal rights and responsibilities under
(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 assessment required by section
259.53, subdivision 2
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
259.55, 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
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.
The prospective adoptive parent shall submit a written motion to the court. The motion
must be supported by:
(1) affidavits from the prospective adoptive parents and birth parents 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 subdivision 3;
(2) the information required by subdivision 3, paragraph (a), clauses (2) and (5), items
(ii) and (iii); and
(i) a completed adoption study report which meets the requirements of section
(ii) the affidavits allowed by section
259.41, subdivision 3
, paragraph (c).
The court shall issue the emergency order if it concludes from the record submitted that the
emergency order will not compromise the health or 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
, 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
shall execute a consent. A birth parent, whose consent is required under section
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
consent hearing is held in a county other than where the prospective adoptive parent resides, the
court shall forward the executed consent to the district court in the county where the prospective
adoptive parent resides. 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
(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. Failure to execute consents.
With the exception of cases where a person receives
notice under section
259.24, subdivision 2a
, if a birth parent whose consent is required under
does not execute a consent by the end of the period specified in 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 services agency to determine whether to commence proceedings for termination of parental
rights on grounds of abandonment as defined in section
. The court may disregard the
six- and 12-month requirements of section
, 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.
Subd. 9.[Repealed, 1997 c 177 s 24
Subd. 10. Records.
In any adoption completed according to a direct adoptive placement
under this section, a record, consisting of the adoption study report and updates required by
; the birth parent history required by section
; the original birth record; and
the hospital discharge form, must be permanently maintained by the agency which supervised
the placement. The birth parents, adoptive parents, or their representatives shall provide copies
of these documents to the agency upon request. Notwithstanding the provisions of section
, an agency shall, upon request, be given any court records needed to provide postadoption
services according to section
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
, without being licensed by the commissioner under chapter 245A, except as authorized by
245A.03, subdivision 2
This offense shall be prosecuted by the county attorney.
History: 1994 c 631 s 22,31; 1997 c 177 s 9-13; 1998 c 406 art 1 s 19,37; 1998 c 407 art 9 s
18; 1999 c 139 art 4 s 2; 2000 c 260 s 32; 1Sp2001 c 9 art 15 s 32