2006 Minnesota Statutes

260C.163 HEARING.
    Subdivision 1. General. (a) Except for hearings arising under section 260C.425, hearings
on any matter shall be without a jury and may be conducted in an informal manner. In all
adjudicatory proceedings involving a child alleged to be in need of protection or services, the
court shall admit only evidence that would be admissible in a civil trial. To be proved at trial,
allegations of a petition alleging a child to be in need of protection or services must be proved
by clear and convincing evidence.
(b) Except for proceedings involving a child alleged to be in need of protection or services
and petitions for the termination of parental rights, hearings may be continued or adjourned from
time to time. In proceedings involving a child alleged to be in need of protection or services and
petitions for the termination of parental rights, hearings may not be continued or adjourned for
more than one week unless the court makes specific findings that the continuance or adjournment
is in the best interests of the child. If a hearing is held on a petition involving physical or sexual
abuse of a child who is alleged to be in need of protection or services or neglected and in foster
care, the court shall file the decision with the court administrator as soon as possible but no later
than 15 days after the matter is submitted to the court. When a continuance or adjournment is
ordered in any proceeding, the court may make any interim orders as it deems in the best interests
of the minor in accordance with the provisions of sections 260C.001 to 260C.421.
(c) Except as otherwise provided in this paragraph, the court shall exclude the general public
from hearings under this chapter and shall admit only those persons who, in the discretion of the
court, have a direct interest in the case or in the work of the court.
(d) Adoption hearings shall be conducted in accordance with the provisions of laws relating
to adoptions.
    Subd. 2. Right to participate in proceedings. A child who is the subject of a petition, and
the parents, guardian, or legal custodian of the child have the right to participate in all proceedings
on a petition. Official tribal representatives have the right to participate in any proceeding that is
subject to the Indian Child Welfare Act of 1978, United States Code, title 25, sections 1901 to
1963.
Any grandparent of the child has a right to participate in the proceedings to the same extent
as a parent, if the child has lived with the grandparent within the two years preceding the filing of
the petition. At the first hearing following the filing of a petition, the court shall ask whether the
child has lived with a grandparent within the last two years, except that the court need not make
this inquiry if the petition states that the child did not live with a grandparent during this time
period. Failure to notify a grandparent of the proceedings is not a jurisdictional defect.
If, in a proceeding involving a child in need of protection or services, the responsible social
services agency recommends transfer of permanent legal and physical custody to a relative, the
relative has a right to participate as a party, and thereafter shall receive notice of any hearing in
the proceedings.
    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.
(b) Except in proceedings where the sole basis for the petition is habitual truancy, if the child,
parent, guardian, or custodian 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 or the parents or guardian in any
case in which it feels that such an appointment is appropriate.
(c) 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 paragraph (b).
(d) Counsel for the child shall not also act as the child's guardian ad litem.
(e) 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, if the child is of suitable age to express a preference.
    Subd. 4. County attorney. Except in adoption proceedings, the county attorney shall present
the evidence upon request of the court. In representing the agency, the county attorney shall also
have the responsibility for advancing the public interest in the welfare of the child.
    Subd. 5. Guardian ad litem. (a) The court shall appoint a guardian ad litem to protect the
interests of the minor when it appears, at any stage of the proceedings, that the minor is without
a parent or guardian, or that the minor's parent is a minor or incompetent, or that the parent or
guardian is indifferent or hostile to the minor's interests, and in every proceeding alleging a child's
need for protection or services under section 260C.007, subdivision 6, except proceedings where
the sole allegation is that the child is a runaway or habitual truant. In any other case the court may
appoint a guardian ad litem to protect the interests of the minor when the court feels that such an
appointment is desirable. The court shall appoint the guardian ad litem on its own motion or in the
manner provided for the appointment of a guardian ad litem in the district court. The court may
appoint separate counsel for the guardian ad litem if necessary.
(b) A guardian ad litem shall carry out the following responsibilities:
(1) conduct an independent investigation to determine the facts relevant to the situation of
the child and the family, which must include, unless specifically excluded by the court, reviewing
relevant documents; meeting with and observing the child in the home setting and considering the
child's wishes, as appropriate; and interviewing parents, caregivers, and others with knowledge
relevant to the case;
(2) advocate for the child's best interests by participating in appropriate aspects of the case
and advocating for appropriate community services when necessary;
(3) maintain the confidentiality of information related to a case, with the exception of sharing
information as permitted by law to promote cooperative solutions that are in the best interests of
the child;
(4) monitor the child's best interests throughout the judicial proceeding; and
(5) present written reports on the child's best interests that include conclusions and
recommendations and the facts upon which they are based.
(c) Except in cases where the child is alleged to have been abused or neglected, the court
may waive the appointment of a guardian ad litem pursuant to clause (a), whenever counsel
has been appointed pursuant to subdivision 2 or is retained otherwise, and the court is satisfied
that the interests of the minor are protected.
(d) In appointing a guardian ad litem pursuant to clause (a), the court shall not appoint the
party, or any agent or employee thereof, filing a petition pursuant to section 260C.141.
(e) The following factors shall be considered when appointing a guardian ad litem in a
case involving an Indian or minority child:
(1) whether a person is available who is the same racial or ethnic heritage as the child
or, if that is not possible;
(2) whether a person is available who knows and appreciates the child's racial or ethnic
heritage.
(f) The court shall require a background study for each guardian ad litem as provided under
section 518.165. The court shall have access to data collected pursuant to section 245C.32 for
purposes of the background study.
    Subd. 6. Examination of child. In any child in need of protection or services proceeding,
neglected and in foster care, or termination of parental rights proceeding the court may, on its own
motion or the motion of any party, take the testimony of a child witness informally when it is
in the child's best interests to do so. Informal procedures that may be used by the court include
taking the testimony of a child witness outside the courtroom. The court may also require counsel
for any party to the proceeding to submit questions to the court before the child's testimony is
taken, and to submit additional questions to the court for the witness after questioning has been
completed. The court may excuse the presence of the child's parent, guardian, or custodian from
the room where the child is questioned in accordance with subdivision 7.
    Subd. 7. Waiving presence of child, parent. The court may waive the presence of the minor
in court at any stage of the proceedings when it is in the best interests of the minor to do so. In
any proceeding, the court may temporarily excuse the presence of the parent or guardian of a
minor from the hearing when it is in the best interests of the minor to do so. The attorney or
guardian ad litem, if any, has the right to continue to participate in proceedings during the absence
of the minor, parent, or guardian.
    Subd. 8. Rights of parties at hearing. The minor and the minor's parent, guardian, or
custodian are entitled to be heard, to present evidence material to the case, and to cross-examine
witnesses appearing at the hearing.
    Subd. 9. Factors in determining neglect. In determining whether a child is neglected and in
foster care, the court shall consider, among other factors, the following:
(1) the length of time the child has been in foster care;
(2) the effort the parent has made to adjust circumstances, conduct, or conditions that
necessitates the removal of the child to make it in the child's best interest to be returned to the
parent's home in the foreseeable future, including the use of rehabilitative services offered to
the parent;
(3) whether the parent has visited the child within the three months preceding the filing of
the petition, unless extreme financial or physical hardship or treatment for mental disability or
chemical dependency or other good cause prevented the parent from visiting the child or it was
not in the best interests of the child to be visited by the parent;
(4) the maintenance of regular contact or communication with the agency or person
temporarily responsible for the child;
(5) the appropriateness and adequacy of services provided or offered to the parent to
facilitate a reunion;
(6) whether additional services would be likely to bring about lasting parental adjustment
enabling a return of the child to the parent within an ascertainable period of time, whether the
services have been offered to the parent, or, if services were not offered, the reasons they were
not offered; and
(7) the nature of the efforts made by the responsible social services agency to rehabilitate
and reunite the family and whether the efforts were reasonable.
    Subd. 10. Waiver. (a) Waiver of any right which a child has under this chapter must be an
express waiver voluntarily and intelligently made by the child after the child has been fully and
effectively informed of the right being waived.
(b) Waiver of a child's right to be represented by counsel provided under the juvenile court
rules must be an express waiver voluntarily and intelligently made by the child after the child has
been fully and effectively informed of the right being waived. 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. 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.
    Subd. 11. Presumptions regarding truancy or educational neglect. (a) A child's absence
from school is presumed to be due to the parent's, guardian's, or custodian's failure to comply
with compulsory instruction laws if the child is under 12 years old and the school has made
appropriate efforts to resolve the child's attendance problems; this presumption may be rebutted
based on a showing by clear and convincing evidence that the child is habitually truant. A child's
absence from school without lawful excuse, when the child is 12 years old or older, is presumed
to be due to the child's intent to be absent from school; this presumption may be rebutted based
on a showing by clear and convincing evidence that the child's absence is due to the failure of
the child's parent, guardian, or custodian to comply with compulsory instruction laws, sections
120A.22 and 120A.24.
(b) Consistent with section 125A.091, subdivision 5, a parent's refusal to provide the parent's
child with sympathomimetic medications does not constitute educational neglect.
History: 1999 c 139 art 3 s 13; art 4 s 2; 1999 c 245 art 8 s 50,51; 2000 c 260 s 35; 2000 c
357 s 1; 2001 c 178 art 1 s 44; 1Sp2001 c 6 art 3 s 15; 2002 c 220 art 6 s 12; 2002 c 314 s 4;
1Sp2003 c 2 art 7 s 4; 2004 c 294 art 5 s 17; 1Sp2005 c 4 art 1 s 48