Resources - A Practical Guide to the Indian Child Welfare Act; Native American Rights Fund

Minn.Gen.R.Prac., Rule 10. 02
Minnesota Statutes Annotated Currentness
General Rules of Practice for the District Courts (Refs & Annos)
Title I. Rules Applicable to All Court Proceedings
Rule 10. Tribal Court Orders and Judgments
Rule 10.02. When Recognition of Tribal Court Orders and Judgments Is Discretionary.

(a) Factors. In cases other than those governed by Rule 10.01(a), enforcement of a tribal court order or judgment is discretionary with the court. In exercising this discretion, the court may consider the following factors:

(1) whether the party against whom the order or judgment will be used has been given notice and an opportunity to be heard or, in the case of matters properly considered ex parte, whether the respondent will be given notice and an opportunity to be heard within a reasonable time;

(2) whether the order or judgment appears valid on its face and, if possible to determine, whether it remains in effect;

(3) whether the tribal court possessed subject-matter jurisdiction and jurisdiction over the person of the parties;

(4) whether the issuing tribal court was a court of record;

(5) whether the order or judgment was obtained by fraud, duress, or coercion;

(6) whether the order or judgment was obtained through a process that afforded fair notice, the right to appear and compel attendance of witnesses, and a fair hearing before an independent magistrate;

(7) whether the order or judgment contravenes the public policy of this state;

(8) whether the order or judgment is final under the laws and procedures of the rendering court, unless the order is a non-criminal order for the protection or apprehension of an adult, juvenile or child, or another type of temporary, emergency order;

(9) whether the tribal court reciprocally provides for recognition and implementation of orders, judgments and decrees of the courts of this state; and

(10) any other factors the court deems appropriate in the interests of justice.

(b) Procedure. The court shall hold such hearing, if any, as it deems necessary under the circumstances.

CREDIT(S)

Adopted Dec. 11, 2003, eff. Jan. 1, 2004.

ADVISORY COMMITTEE COMMENTS--2007 AMENDMENT

Introduction. Rule 10 is a new rule intended to provide a starting point for enforcing tribal court orders and judgments where recognition is mandated by state or federal law (Rule 10.01), and to establish factors for determining the effect of these adjudications where federal or state statutory law does not do so (Rule 10.02).

The rule applies to all tribal court orders and judgments and does not distinguish between tribal courts located in Minnesota and those sitting in other states. The only limitation on the universe of determinations is that they be from tribal courts of a federally-recognized Indian tribe. These courts are defined in 25 U.S.C. ? 450b(e), and a list is published by the Department of the Interior, Bureau of Indian Affairs. See, e.g., FED. REG. 1194 (Nov. 25, 2005).

Tribal court adjudications are not entitled to full faith and credit under the United States Constitution, which provides only for full faith and credit for “public acts, records, and judicial proceedings of every other state” U. S. CONST. Art IV, ? 1. But state and federal statutes have conferred the equivalent of full faith and credit status on some tribal adjudications by mandating that they be enforced in state court. Where such full faith and credit is mandatory, a state does not exercise discretion in giving effect to the proper judgments of a sister state. Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998) (“A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.”) Through full faith and credit, a sister state's judgment is given res judicata effect in all other states. See, e.g., id.; Hansberry v. Lee, 311 U.S. 32, 42 (1940).

The enforcement in state court of tribal court adjudications that are not entitled to the equivalent of full faith and credit under a specific state or federal statute, is governed by the doctrine of comity. Comity is fundamentally a discretionary doctrine. It is rooted in the court's inherent powers, as was early recognized in United States jurisprudence in Hilton v. Guyot, 159 U.S. 113, 163-164 (1895), where the court said: “No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call ‘the comity of nations.”'

This inherent power was recognized in Minnesota in Traders' Trust Co. v. Davidson, 146 Minn. 224, 227, 178 N.W. 735, 736 (1920) (citing Hilton, 159 U.S. at 227) where the court said: “Effect is given to foreign judgments as a matter of comity and reciprocity, and it has become the rule to give no other or greater effect to the judgment of a foreign court than the country or state whose court rendered it gives to a like judgment of our courts.” In Nicol v. Tanner, 310 Minn. 68, 75-79, 256 N. W.2d 796, 800-02 (1976) (citing the Restatement (Second) of Conflicts of Laws ? 98 (1971)), the court further developed the doctrine of comity when it held that the statement in Traders' Trust Co. that enforcement required a showing of reciprocity was dictum; that ‘reciprocity is not a prerequisite to enforcement of a foreign judgment in Minnesota;” and that the default status of a foreign judgment “should not affect the force of the judgment.”

Statutory Mandates. Rule 10.01 reflects the normal presumption that courts will adhere to statutory mandates for enforcement of specific tribal court orders or judgments where such a statutory mandate applies. Federal statutes that do provide such mandates include:

1. Violence Against Women Act of 2000, 18 U.S.C. ? 2265 (2003) (full faith and credit for certain protection orders).

2. Indian Child Welfare Act, 25 U.S.C. ? 1911(d) (2003) (“full faith and credit” for certain custody determinations).

3. Full Faith and Credit for Child Support Orders Act, 28 U.S.C. ? 1738B(a) (2003) (“shall enforce” certain child support orders and “shall not seek or make modifications ... except in accordance with [certain limitations]”).

In addition to federal law, the Minnesota Legislature has addressed custody, support, child placement, and orders for protection. The Minnesota Legislature adopted the Uniform Child Custody Jurisdiction and Enforcement Act, MINN. STAT. ?? 518D.101-518D.317 (2002) which: (1) requires recognition and enforcement of certain child custody determinations made by a tribe “under factual circumstances in substantial conformity with the jurisdictional standards of” the Act; and (2) establishes a voluntary registration process for custody determinations with a 20-day period for contesting validity. MINN. STAT. ?? 518D.103; 104 (2002) (not applicable to adoption or emergency medical care of child; not applicable to extent ICWA controls). In addition, the Minnesota Legislature has adopted the Uniform Interstate Family Support Act, MINN. STAT. ?? 518C.101-518C.902 (2002), which provides the procedures for enforcement of support orders from another state [“state” is defined to include an Indian tribe, MINN. STAT. ? 518C.101(s)(1) (2002)] with or without registration, and enforcement and modification after registration. The Minnesota Legislature has also adopted the Minnesota Indian Family Preservation Act, MINN. STAT. ?? 260.751--260.835 (2002), which provides, among other things, that tribal court orders concerning child placement (adoptive and pre-adoptive placement, involuntary foster care placement, termination of parental rights, and status offense placements) shall have the same force and effect as orders of a court of this state. MINN. STAT. ? 260.771, subd. 4 (2002). In 2006 the Minnesota Legislature adopted MINN. STAT. ? 518B.01, subd. 19a, which requires enforcement of certain foreign or tribal court orders for protection.

The facial validity provision in Rule 10.01(b)(2) fills in a gap in state law. MINN. STAT. ? 518B.01, subd. 14(e) (2002), authorizes an arrest based on probable cause of violation of tribal court order for protection; although this law includes immunity from civil suit for a peace officer acting in good faith and exercising due care, it does not address facial validity of the order. Similar laws in other jurisdictions address this issue. See, e.g., 720 ILL. COMP. STAT. 5/12-30(a)(2) (Supp. 2003); OKLA. STAT. tit. 22 ? 60.9B(1) (2003); WISC. STAT. ? 813.128(1) (2001-02).

The Minnesota Legislature has also addressed enforcement of foreign money judgments. The Minnesota Uniform Foreign Country Money-Judgments Recognition Act, MINN. STAT. ? 548.35 (2002), creates a procedure for filing and enforcing judgments rendered by courts other than those of sister states. Tribal court money judgments fall within the literal scope of this statute and the statutory procedures therefore may guide Minnesota courts considering money judgments. Cf. Anderson v. Engelke, 954 P.2d 1106, 1110-11 (Mont. 1998) (dictum) (statute assumed to allow enforcement by state courts outside of tribal lands, but question not decided). In general, money judgments of tribal courts are not entitled to full faith and credit under the Constitution, and the court is allowed a more expansive and discretionary role in deciding what effect they have. Rule 10.02(a) is intended to facilitate that process.

Discretionary Enforcement: Comity. Where no statutory mandate expressly applies, tribal court orders and judgments are subject to the doctrine of comity. Rule 10.02(a) does not create any new or additional powers but only begins to describe in one convenient place the principles that apply to recognition of orders and judgments by comity.

Comity is also an inherently flexible doctrine. A court asked to decide whether to recognize a foreign order can consider whatever aspects of the foreign court proceedings it deems relevant. Thus Rule 10.02(a) does not dictate a single standard for determining the effect of these adjudications in state court. Instead, it identifies some of the factors a Minnesota judge may consider in determining what effect such a determination will be given. Rule 10.02(a) does not attempt to define all of the factors that may be appropriate for consideration by a court charged with determining whether a tribal court determination should be enforced. It does enumerate many of the appropriate factors. It is possible in any given case that one or more of these factors will not apply. For example, reciprocity is not a pre-condition to enforceability generally, Nicol, 310 Minn. at 75-79, 256 N.W.2d at 800-02, but may be relevant in some circumstances. Notice of the proceedings and an opportunity to be heard (or the prospect of notice and right to hearing in the case of ex parte matters) are fundamental parts of procedural fairness in state and federal courts and are considered basic elements of due process; it is appropriate at least to consider whether the tribal court proceedings extended these rights to the litigants. The issue of whether the tribal court is “of record” may be important to the determination of what the proceedings were in that court. A useful definition of “of record” is contained in the Wisconsin statutes. WIS. STAT. ? 806.245(1)(c) (2001-02); see alsoWIS. STAT. ? 806.245(3) (2001-02) (setting forth requirements for determining whether a court is “of record”). The rule permits the court to inquire into whether the tribal court proceedings offered similar protections to the parties, recognizing that tribal courts may not be required to adhere to the requirements of due process under the federal and state constitutions. Some of the considerations of the rule are drawn from the requirements of the Minnesota Uniform Enforcement of Foreign Judgments Act, MINN. STAT. ?? 548.26-.33 (2002). For example, contravention of the state's public policy is a specific factor for non-recognition of a foreign state's judgment under MINN. STAT. ? 548.35, subd. 4(b)(3)(2002); it is carried forward into Rule 10.02(a)(7). Inconsistency with state public policy is a factor for non-recognition of tribal court orders under other states' rules. SeeMICH. R. CIV. P. 2.615(C)(2)(c); N.D. R. CT. 7.2(b)(4).

Hearing. Rule 10.02(b) does not require that a hearing be held on the issues relating to consideration of the effect to be given to a tribal court order or judgment. In some instances, a hearing would serve no useful purpose or would be unnecessary; in others, an evidentiary hearing might be required to resolve contested questions of fact where affidavit or documentary evidence is insufficient. The committee believes the discretion to decide when an evidentiary hearing is held should rest with the trial judge.

52 M.S.A., Juvenile Delinquency Procedure Rule 1. 01
Minnesota Statutes Annotated Currentness
Rules of Juvenile Delinquency Procedure (Refs & Annos)
Rule 1. Scope, Application and General Purpose (Refs & Annos)
Rule 1.01. Scope and Application

Rules 1 through 31 govern the procedure in the juvenile courts of Minnesota for all delinquency matters as defined by Minnesota Statutes, section 260B.007, subdivision 6, juvenile petty matters as defined by Minnesota Statutes, section 260B.007, subdivision 16 and juvenile traffic matters as defined by Minnesota Statutes, section 260B.225. Procedures for juvenile traffic and petty matters are governed by Rule 17.

Where these rules require giving notice to a child, notice shall also be given to the child's counsel if the child is represented. Reference in these rules to “child's counsel” includes the child who is proceeding pro se. Reference in these rules to “counsel for the parent(s), legal guardian, or legal custodian” includes the parent, legal guardian, or legal custodian who is proceeding pro se.

Where any rule obligates the court to inform a child or other person of certain information, the information shall be provided in commonly understood, everyday language.

In cases involving an Indian child, which may be governed by the Indian Child Welfare Act, 25 U.S.C.A. Chapter 21, sections 1901-1963, these rules shall be construed to be consistent with that act. Where the Minnesota Indian Family Preservation Act, Minnesota Statutes, sections 260.751 through 260.835 applies, these rules shall be construed to be consistent with that act.

CREDIT(S)

Adopted Dec. 17, 1982, eff. May 1, 1983. Amended June 26, 1996; July 18, 2003; April 23, 2004; July 11, 2005, eff. Sept. 1, 2005.

52 M.S.A., Juvenile Delinquency Procedure Rule 1. 02
Minnesota Statutes Annotated Currentness
Rules of Juvenile Delinquency Procedure (Refs & Annos)
Rule 1. Scope, Application and General Purpose (Refs & Annos)
Rule 1.02. General Purpose

The purpose of the juvenile rules is to establish uniform practice and procedures for the juvenile courts of the State of Minnesota, and to assure that the constitutional rights of the child are protected. The purpose of the laws relating to children alleged or adjudicated to be delinquent is to promote the public safety and reduce juvenile delinquency by maintaining the integrity of the substantive law prohibiting certain behavior and by developing individual responsibility for lawful behavior. This purpose should be pursued through means that are fair and just, that recognize the unique characteristics and needs of children, and that give children access to opportunities for personal and social growth. These rules shall be construed to achieve these purposes.

CREDIT(S)

Adopted Dec. 17, 1982, eff. May 1, 1983. Amended June 26, 1996.

COMMENT--RULE 1

2006 Main Volume

Minn. R. Juv. Del. P. 1.02 is based upon Minnesota Statutes, section 260B.001, subd. 2 (2002).

The Indian Child Welfare Act does not apply to placements of Indian children that are based upon an act which, if committed by an adult, would be deemed a crime. 25 U.S.C. section 1903(1) (1988). However, Minnesota Statutes, section 260.761, subd. 2 (2002) of the Minnesota Indian Family Preservation Act requires that the Indian child's tribal social service agency receive notice when the court transfers legal custody of the child under Minnesota Statutes, section 260B.198, subd. 1(c)(1), (2) and (3) (2002) following an adjudication for a misdemeanor-level delinquent act.

52 M.S.A., Juvenile Protection Procedure Rule 1. 02
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
A. Scope and Purpose
Rule 1. Scope and Purpose
Rule 1.02. Purpose

These rules establish uniform practice and procedure for juvenile protection matters in the juvenile courts of Minnesota. The purpose of these rules is to:

(a) secure for each child under the jurisdiction of the court a home that is safe and permanent;

(b) secure for each child under the jurisdiction of the court the care and guidance, preferably in the child's own home, that will best serve the physical, emotional, spiritual, and mental welfare of the child;

(d) whenever possible and in the best interests of the child, preserve and strengthen the child's family ties, removing the child from the custody of the child's parent or legal custodian only when the child's safety and welfare cannot otherwise be adequately safeguarded;

(e) secure for the child such custody, care, and discipline, as nearly as possible equivalent to that which should have been given by the child's parent or legal custodian, when removal from the child's parent or legal custodian is necessary and in the child's best interests;

(f) provide a just, thorough, speedy, and efficient determination of each juvenile protection matter before the court and ensure due process for all persons involved in the proceedings;

(g) establish a uniform system for judicial oversight of case planning and reasonable efforts, or active efforts in the case of an Indian child, aimed at preventing or eliminating the need for removal of the child from the care of the child's parent or legal custodian;

(h) ensure a coordinated decision-making process;

(i) reduce unnecessary delays in court proceedings; and

(j) encourage the involvement of parents and children in the proceedings.

CREDIT(S)

Amended Nov. 12, 2003.

1999 ADVISORY COMMITTEE COMMENT--2003 AMENDMENTS

2006 Main Volume

The purpose statement is not intended to be a rule of construction. Rather, it is intended as a guide for judges, attorneys, social services personnel, families, and other judicial system stakeholders to articulate that the overall objective of juvenile court is to move expeditiously toward a resolution of the matter in such a way as to secure that which is in the best interests of the child while ensuring due process for all of the parties.

The purpose statement reflects the policy set forth in the federal Adoption and Safe Families Act of 1997, 42 U.S.C. ?? 601, 603, 622, 629, 653, 675, 670-679, and 1320,, which emphasizes that the overriding objective in any juvenile protection matter is to timely provide a safe, permanent home for the child. The purpose statement also reflects the policy set forth in Minnesota Statutes ? 260C.001, subd. 2, which provides, in pertinent part, as follows:

The paramount consideration in all proceedings concerning a child alleged or found to be in need of protection or services is the health, safety, and best interests of the child ... The purpose of the laws relating to juvenile courts is to secure for each child alleged or adjudicated in need of protection or services and under the jurisdiction of the court, the care and guidance, preferably in the child's own home, as will best serve the spiritual, emotional, mental, and physical welfare of the child; to provide judicial procedures which protect the welfare of the child; to preserve and strengthen the child's family ties whenever possible and in the child's best interests, removing the child from the custody of parents only when the child's welfare or safety cannot be adequately safeguarded without removal; and, when removal from the child's own family is necessary and in the child's best interests, to secure for the child custody, care and discipline as nearly as possible equivalent to that which should have been given by the parents.

Rule 1.02(h) calls for coordinated decision-making in those cases where one family is involved in simultaneous juvenile, criminal, and family court matters. The parties and the court should coordinate the separate proceedings to assure a consistent outcome that is in the best interests of the child.

52 M.S.A., Juvenile Protection Procedure Rule 2. 01
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
A. Scope and Purpose
Rule 2. Definitions
Rule 2.01. Definitions

The terms used in these rules shall have the following meanings:

(1) “Adjudicated father” means an individual determined by a court, or pursuant to a recognition of parentage under Minnesota Statutes ? 257.75 to be the biological father of the child.

(2) “Alleged father” means an individual claimed by a party or participant to be the biological father of a child.

(3) “Child placing agency” means any agency licensed pursuant to Minnesota Statutes ? 245A.02 to ? 245A.16 or ? 252.28, subd. 2.

(4) “Child custody proceeding,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(1), and Minnesota Statutes ? 260.755, subd. 3, means and includes:

(a) “foster care placement” which means any action removing an Indian child from the child's parent or Indian custodian for temporary placement in a foster home, institution, or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated;

(b) “termination of parental rights” which means any action resulting in the termination of the parent-child relationship;

(c) “preadoptive placement” which means the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and

(d) “adoptive placement” which means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime, or an award of custody to one of the parents in a divorce proceeding.

(5) “Emergency protective care” means the placement status of a child when:

(a) taken into custody by a peace officer pursuant to Minnesota Statutes ? 260C.151, subd. 6; ? 260C.154; or ? 260C.175; or

(b) returned home before an emergency protective care hearing pursuant to Rule 30 with court ordered conditions of release.

(6) “Extended family member,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(2), shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen (18) and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.

(7) “Foster care” means the 24-hour-a-day substitute care for a child placed away from the child's parents or guardian and for whom a responsible social services agency has placement and care responsibilities under Minnesota Statutes ? 260C.007, subd. 18. “Foster care” includes, but is not limited to, placement in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities not excluded in this subdivision, child care institutions, and preadoptive homes. A child is in foster care under this definition regardless of whether the facility is licensed and payments are made for the cost of care. Nothing in this definition creates any authority to place a child in a home or facility that is required to be licensed which is not licensed. “Foster care” does not include placement in any of the following facilities: hospitals, inpatient chemical dependency treatment facilities, facilities that are primarily for delinquent children, any corrections facility or program within a particular correction's facility not meeting requirements for Title IV-E facilities as determined by the commissioner, facilities to which a child is committed under the provision of chapter 253B, forestry camps, or jails.

(8) “Independent living plan” is a plan for a child age sixteen (16) or older who is in placement as a result of a permanency disposition which includes the objectives set forth in Minnesota Statutes ? 260C.212, subd. 1(c)(8).

(9) “Indian child,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(4), and modified by Minnesota Statutes ? 260.755, subd. 8, means any unmarried person who is under age eighteen (18) and is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe.

(10) “Indian custodian,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(6), and Minnesota Statutes ? 260.755, subd. 10, means an Indian person who has legal custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child.

(11) “Indian child's tribe,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(5), and Minnesota Statutes ? 260.755, subd. 9, means:

(a) the Indian tribe in which an Indian child is a member or eligible for membership; or

(b) in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the most significant contacts.

(12) “Indian tribe,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(8), and Minnesota Statutes ? 260.755, subd. 12, means an Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaska Native village as defined in 43 U.S.C. ? 1602(c), and exercising tribal governmental powers.

(13) “Juvenile protection case records” means all records of the juvenile court regarding a particular case or controversy, including all records filed with the court and the official transcript. Juvenile protection case records do not include reporter's notes and tapes, electronic recordings, and unofficial transcripts of hearings and trials. See also “records” defined in subdivision (24 ).

(14) “Juvenile protection matter” means any of the following types of matters:

(a) child in need of protection or services matters as defined in Minnesota Statutes ? 260C.007, subd. 6, including habitual truant and runaway matters;

(b) neglected and in foster care matters as defined in Minnesota Statutes ? 260C.007, subd. 24;

(d) review of out-of-home placement matters as defined in Minnesota Statutes ? 260C.212;

(e) termination of parental rights matters as defined in Minnesota Statutes ? 260C.301 to ? 260C.328; and

(f) permanent placement matters as defined in Minnesota Statutes ? 260C.201, subd. 11, including transfer of permanent legal and physical custody to a relative matters; termination of parental rights matters; long-term foster care matters; foster care for a specified period of time matters; and guardianship and legal custody to human services matters.

(15) “Legal custodian” means a person, including a legal guardian, who by court order or statute has sole or joint legal or physical custody of the child.

(16) “Parent” as adapted from Minnesota Statutes ? 260C.007, subd. 25, means the birth, legally adjudicated, or adoptive parent of a minor child. For an Indian child, pursuant to Minnesota Statutes ? 260.755, subd. 14, parent also includes any Indian person who has legally adopted an Indian child including a person who has adopted a child by tribal law or custom, but “parent” does not include an unmarried father whose paternity has not been acknowledged or established.

(17) “Person,” as defined in Minnesota Statutes ? 260C.007, subd. 26, includes any individual, association, corporation, partnership, and the state or any of its political subdivisions, departments, or agencies.

(18) “Presumed father” means an individual who is presumed to be the biological father of a child under Minnesota Statutes ? 257.55, subd. 1.

(19) “Protective care” means the right of the responsible social services agency or child-placing agency to temporary physical custody and control of a child for purposes of foster care placement, and the right and duty of the responsible social services agency or child-placing agency to provide the care, food, lodging, training, education, supervision, and treatment the child needs.

(20) “Protective supervision,” as referenced in Minnesota Statutes ? 260C.201, subd. 1(a)(1), means the right and duty of the responsible social services agency or child-placing agency to monitor the conditions imposed by the court directed to the correction of the child's need for protection or services while in the care of the child's parent or legal custodian.

(21) “Qualified expert witness,” as defined in Minnesota Administrative Rule 9560.0221, subp. 3G, means:

(a) a member of an Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs of family organization and child rearing;

(b) a lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child's tribe; or

(c) a professional person having substantial education and experience in the area of the professional person's specialty, along with substantial knowledge of prevailing social and cultural standards and child-rearing practices within the Indian community.

(22) “Reasonable efforts to prevent placement,” as defined in Minnesota Statutes ? 260.012(d) means:

(a) the agency has made reasonable efforts to prevent the placement of the child in foster care; or

(b) given the particular circumstances of the child and family at the time of the child's removal, there are no service or efforts available which could allow the child to safely remain in the home.

“Reasonable efforts” are made upon the exercise of due diligence by the responsible social services agency to use culturally appropriate and available services to meet the needs of the child and the child's family.

(23) “Reasonable efforts to finalize a permanent plan for the child,” as defined in Minnesota Statutes ? 260.012(e) means due diligence by the responsible social services agency:

(a) to reunify the child with the parent or guardian from whom the child was removed;

(b) to assess a noncustodial parent's ability to provide day-to-day care for the child and, where appropriate, provide services necessary to enable the noncustodial parent to safely provide the care, as required by Minnesota Statutes ? 260C.212, subd. 4;

(d) when the child cannot return to the parent or guardian from whom the child was removed, to plan for and finalize a safe and legally permanent alternative home for the child, and consider permanent alternative homes for the child inside or outside of the state, preferably through adoption or transfer of permanent legal and physical custody of the child.

(24) “Records” means any recorded information that is collected, created, received, maintained, or disseminated by a court or court administrator, regardless of its physical form or method of storage, and specifically excludes judicial work product and drafts as defined in the Rules of Public Access to Records of the Judicial Branch. See also “juvenile protection case records” defined in subdivision (13).

(25) “Relative” as defined in Minnesota Statutes ? 260C.007, subd. 27, means a person related to the child by blood, marriage, or adoption, or an individual who is an important friend with whom the child has resided or had significant contact. 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 laws or custom, nieces, nephews, or first or second cousins, as provided in the Indian Child Welfare Act of 1978, 25 U.S.C. ? 1903(2).

(26) “Removed from home” means the child has been taken out of the care of the parent or legal custodian, including a substitute caregiver, and placed in foster care or in a shelter care facility.

(27) “Reservation,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(10), means Indian country as defined in 18 U.S.C. ? 1151 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.

(28) “Shelter care facility,” as adapted from Minnesota Statutes ? 260C.007, subd. 30, means a physically unrestricting facility, including but not limited to, a hospital, a group home, or a facility licensed for foster care pursuant to Minnesota Statutes Chapter 245A, used for the temporary care of a child during the pendency of a juvenile protection matter.

(29) “Trial home visit,” as defined in Minnesota Statutes ? 260C.201, subd. 1(a)(3), means the child is returned to the care of the parent or legal custodian from whom the child was removed for a period not to exceed six months, with agency authority and responsibilities set forth in the statute.

(30) “Tribal court,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(12), means a court with jurisdiction over child custody proceedings and which is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings.

(31) “Voluntary foster care” means placement of a child in foster care based on a written agreement between the responsible social services agency or child placing agency and the child's parent, guardian, or legal custodian. The voluntary foster care agreement gives the agency legal responsibility for the placement of the child. The voluntary foster care agreement is based on both the agency's and the parent's, guardian's, or legal custodian's assessment that placement is necessary and in the child's best interests. See Minnesota Statutes ? 260C.212, subd. 8, and ? 260D.02, subd. 5.

(32) “Voluntary foster care of an Indian child,” as defined in Minnesota Statutes ? 260.755, subd. 22, means a decision in which there has been participation by a local social services agency or private child-placing agency resulting in the temporary placement of an Indian child away from the home of the child's parent or Indian custodian in a foster home, institution, or the home of a guardian, and the parent or Indian custodian may have the child returned upon demand.

CREDIT(S)

Amended Nov. 12, 2003; Dec. 1, 2006, eff. Jan. 1, 2007; June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 3. 03
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
A. Scope and Purpose
Rule 3. Applicability of Other Rules and Statutes
Rule 3.03. Indian Child Welfare Act

Juvenile protection matters concerning an Indian child shall be governed by the Indian Child Welfare Act, 25 U.S.C. ? 1901 to ? 1963; the Minnesota Indian Family Preservation Act, Minnesota Statutes ? 260.751 to ? 260.835; and by these rules when these rules are not inconsistent with the Indian Child Welfare Act or the Minnesota Indian Family Preservation Act.

CREDIT(S)

Amended Nov. 12, 2003.

52 M.S.A., Juvenile Protection Procedure Rule 4.03
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
B. General Operating Rules
Rule 4. Time; Timeline
Rule 4.03. Timeline

Subd. 1. Child in Need of Protection or Services Matters.

(a) Emergency Protective Care Hearing. If a child has been removed from the home of the parent or legal custodian pursuant to Rule 28.01, the court shall hold an emergency protective care hearing within seventy-two (72) hours of the child's removal pursuant to Rule 30.01.

(b) Admit/Deny Hearing. Pursuant to Rule 34.02, subd. 1(a), when the child is removed from home by court order, an admit/deny hearing shall be held within ten (10) days of the date of the emergency protective care hearing. Pursuant to Rule 34.02, subd. 2(a), when the child is not removed from home by court order, an admit/deny hearing shall be held no sooner than three (3), and no later than twenty (20) days after the parties have been served with the summons and petition.

(1) Parent's, Indian Custodian's or Tribe's Identity Known. In matters governed by the Indian Child Welfare Act, 25 U.S.C. ? 1901 et seq., the admit/deny hearing on a petition requesting the foster care placement of an Indian child, the permanent placement of an Indian child, or the termination of parental rights to an Indian child shall not be held until at least ten (10) days after receipt of the notice required under Rule 32.06, 25 U.S.C. ? 1912(a), and Minnesota Statutes ? 260.761, subd. 3. The parent, Indian custodian, or child's tribe shall, upon request, be granted up to twenty (20) additional days from receipt of the notice to prepare for the admit/deny hearing.

(2) Parent's, Indian Custodian's, or Child's Tribe's Identity Unknown. If the identity or location of the parent, Indian custodian, or child's tribe cannot be determined, the notice required under Rule 32.06, 25 U.S.C. ? 1912(a), and Minnesota Statutes ? 260.761, subd. 3, shall be sent to the Secretary of the Interior who shall have fifteen (15) days to provide the requisite notice to the parent or Indian custodian and the tribe. The admit/deny hearing shall be held at least twenty-five (25) days after receipt of the notice by the Secretary. The parent, Indian custodian, or child's tribe shall, upon request, be granted up to twenty (20) additional days from receipt of the notice to prepare for the admit/deny hearing.

(c) Scheduling Order. Pursuant to Rule 6.02, the court shall issue a scheduling order at the admit/deny hearing held pursuant to Rule 34 or within fifteen (15) days of the admit/deny hearing.

(d) Pretrial Hearing. Pursuant to Rule 36.01, the court shall convene a pretrial hearing at least ten (10) days prior to trial.

(e) Trial. Pursuant to Rule 39.02, subd. 1(a), when the statutory grounds set forth in the petition are denied, a trial regarding a child in need of protection or services matter shall commence within sixty (60) days from the date of the emergency protective care hearing or the admit/deny hearing, whichever is earlier, and testimony shall be concluded within thirty (30) days from the date of commencement of the trial and whenever possible should be over consecutive days.

(f) Findings/Adjudication. Pursuant to Rule 39.05, subd. 1, within fifteen (15) days of the conclusion of the testimony, during which time the court may require simultaneous written arguments to be filed and served, the court shall issue its findings and order regarding whether one or more statutory grounds set forth in the petition have been proved. The court may extend the period for issuing an order for an additional fifteen (15) days if the court finds that an extension of time is required in the interests of justice and the best interests of the child.

(g) Disposition. Pursuant to Rule 41.02, to the extent practicable, the court shall conduct a disposition hearing and enter a disposition order the same day it makes a finding that the statutory grounds set forth in the petition have been proved. In the event disposition is not ordered at the same time as the adjudication, the disposition order shall be issued within ten (10) days of the date the court finds the statutory grounds set forth in the petition have been proved.

(h) Review of Legal Custody. When the disposition is transfer of legal custody to the responsible social services agency pursuant to Rule 41.06, the court shall conduct a review hearing at least every ninety (90) days to review whether foster care is necessary and continues to be appropriate or whether the child should be returned to the home of the parent or legal custodian from whom the child was removed. Any party or the county attorney may request a review hearing before ninety (90) days.

(i) Review of Protective Supervision. When the disposition is protective supervision pursuant to Rule 41.06, subd. 1, the court shall review the disposition in court at least every six (6) months from the date of the disposition.

Subd. 2. Permanent Placement Matters--Notice of Timeline for Permanency Proceedings. In the case of a child who is alleged or found to be in need of protection or services and ordered into foster care or the home of a noncustodial parent, and where reasonable efforts for reunification are required, pursuant to Rule 42. 01, subd. 1, the court in its first order placing the child in foster care or the home of a noncustodial parent shall set the date or deadline for the admit/deny hearing commencing permanent placement determination proceedings and the permanency progress review hearing required for a child who is under age eight (8) at the time the petition is filed alleging the child to be in need of protection or services. Pursuant to Rule 42.01, subd. 5, not later than when the court sets the date or deadline for the admit/deny hearing commencing the permanent placement determination proceedings and the permanency progress review hearing, the court shall notify the parties and participants of the following requirements:

(a) Requirement of Six (6) Month Hearing for Child Under Eight (8) Years of Age. For a child who is under eight (8) years of age at the time a petition is filed alleging the child to be in need of protection or services, pursuant to Rule 42.01, subd. 5(a), the court shall conduct a permanency progress review hearing not later than six (6) months after the child is placed in foster care or in the home of a noncustodial parent to review the progress of the case, the parent's progress on the out-of-home placement plan, and the provision of services. At the hearing required under this paragraph, the court may conduct a permanency progress review hearing for any sibling of the child, regardless of age, when the sibling is also in foster care or in the home of a noncustodial parent.

(b) Requirement of Twelve (12) Month Hearing. Pursuant to Rule 42.01, subd. 5(b), the court shall commence permanent placement determination proceedings to determine the permanent status of the child, regardless of age, not later than twelve (12) months after the child is placed in foster care or in the home of a noncustodial parent.

Subd. 3. Permanent Placement Petition and Trial for Child Under Eight (8) Years of Age. In the case of a child under eight (8) years of age at the time the child in need of protection or services petition is filed, if the court determines at the permanency progress review hearing required under Rule 42.01, subd. 1(b), that the parent or legal custodian has not maintained regular contact with the child as outlined in the visitation plan or is not complying with the case plan or out-of-home placement pursuant to Rule 42.04(a) a petition supporting the permanency plan shall be filed and served within thirty (30) days of the hearing under this paragraph. Pursuant to Rule 39.02, subd. 1(b), a trial on the petition shall be commenced within thirty (30) days of the filing of a petition in the case of a transfer of legal custody or within ninety (90) days of the filing of the petition in the case of a petition for termination of parental rights, and testimony shall be concluded within thirty (30) days from the date of commencement of the trial and whenever possible should be over consecutive days. Pursuant to Rule 39.05, subd. 1, within fifteen (15) days of the conclusion of the testimony, during which time the court may require simultaneous written arguments to be filed and served, the court shall issue its findings and order regarding whether the statutory grounds set forth in the petition have or have not been proved. The court may extend the period for issuing an order for an additional fifteen (15) days if the court finds that an extension of time is required in the interests of justice and the best interests of the child.

Subd. 4. Termination of Parental Rights and Other Permanent Placement Matters at Twelve (12) Months.

(a) Admit/Deny Hearing. Pursuant to Rule 34.02 subd. 1(b), an admit/deny hearing shall be held not less than ten (10) days after service of the summons and petition upon the parties.

(1) Parent's, Indian Custodian's, or Child's Tribe's Identity Known. In matters governed by the Indian Child Welfare Act, 25 U.S.C. ? 1901 et seq., the admit/deny hearing on a petition requesting the foster care placement of an Indian child, the permanent placement of an Indian child, or the termination of parental rights to an Indian child shall not be held until at least ten (10) days after receipt of the notice required under Rule 32.06, 25 U.S.C. ? 1912(a), and Minnesota Statutes ? 260.761, subd. 3. The parent, Indian custodian, or child's tribe shall, upon request, be granted up to twenty (20) additional days from receipt of the notice to prepare for the admit/deny hearing.

(b) Pretrial Hearing. Pursuant to Rule 36.01, the court shall convene a pretrial hearing at least ten (10) days prior to trial.

(c) Trial. Pursuant to Rule 39.02, subd. 1(c), a trial regarding a termination of parental rights matter or other permanent placement matter shall commence within sixty (60) days of the first scheduled admit/deny hearing and testimony shall be concluded within thirty (30) days from the date of commencement of the trial and whenever possible should be over consecutive days.

(d) Findings/Adjudication. Pursuant to Rule 39.05 subd. 1, within fifteen (15) days of the conclusion of the testimony, during which time the court may require simultaneous written arguments to be filed and served, the court shall issue its findings and order regarding whether the statutory grounds set forth in the petition have or have not been proved. The court may extend the period for issuing an order for an additional fifteen (15) days if the court finds that an extension of time is required in the interests of justice and the best interests of the child.

(e) Post-Permanency Review Hearings.

(1) If the court orders termination of parental rights and adoption as the permanency plan, pursuant to Rule 42.08, subd. 5, the court shall conduct a review hearing ninety (90) days from the date of the termination of parental rights order is filed, and at least every ninety (90) days thereafter, for the purpose of reviewing the progress towards finalization of the adoption.

(2) If the court orders transfer of permanent legal and physical custody to a relative, pursuant to Rule 42.07, subds. 3 and 7, the court may order further in-court review hearings at such intervals as it determines to be in the best interests of the child to ensure that the appropriate services are being delivered to the child and permanent legal physical custodian or that conditions ordered by the court relating to the care and custody of the child are met.

(3) If the court orders long-term foster care, pursuant to Rule 42.11, subd. 4, the court shall review the matter in court at least every twelve (12) months to consider whether long term foster care continues to be the best permanent plan for the child.

(4) If the court orders foster care for a specified period of time, pursuant to Rule 42.12, subd. 3, not later than twelve (12) months after the child was ordered into foster care for a specified period of time the matter shall be returned to court for a review of the appropriateness of continuing the child in foster care and of the responsible social service agency's reasonable efforts to finalize a permanent plan for the child.

(f) Review When Child Removed from Permanent Placement Within One (1) Year. Pursuant to Rule 42.15, subd. 1, if a child is removed from a permanent placement disposition within one year after the placement was made:

(a) the child shall be returned to the foster home where the child was placed immediately preceding the permanent placement; or

(b) the court shall conduct a hearing within ten (10) days after the child is removed from the permanent placement to determine where the child is to be placed.

Subd. 5. Hearing for Child on a Trial Home Visit. Pursuant to Rule 42.01, subd. 2, when the child has been ordered on a trial home visit which continues at the time the court is required to commence permanent placement determination proceedings under Rule 42.01, within twelve (12) months of the date a child is placed in foster care the court shall hold a hearing pursuant to Rule 42.13 to determine the continued status of the child.

Subd. 6. Cases Where Reasonable Efforts For Reunification Are Not Required. Pursuant to Rule 42.01, subd. 6, when the court finds that the petition states a prima facie case that one or more of the five (5) circumstances under Minnesota Statutes ? 260.012(a) and Rule 30.09, subd. 3, exist where reasonable efforts for reunification are not required, the court shall order that an admit/deny hearing under Rule 34 be conducted within thirty (30) days and a trial be conducted within ninety (90) days of its prima facie finding. Unless a permanency or termination of parental rights petition under Rule 33 has already been filed, the county attorney requesting the prima facie determination shall file a permanency or termination of parental rights petition that permits the completion of service by the court at least ten (10) days prior to the admit/deny hearing.

CREDIT(S)

Amended Nov. 12, 2003; Dec. 1, 2006, eff. Jan. 1, 2007; June 10, 2009, eff. Aug. 1, 2009.

1999 ADVISORY COMMITTEE COMMENT (AMENDED 2003 AND 2009)

2011 Electronic Update

The timeline set forth in Rule 4.03 is intended as an overall guide for juvenile protection matters and is based upon the requirements of Minnesota Statutes ? 260C.176; ? 260C.201, subds. 10 and 11; ? 260C.178, subd. 6; the Indian Child Welfare Act, 25 U.S.C. ? 1901 to ? 1963; and the Adoption and Safe Families Act of 1997, 42 U.S.C. ?? 601, 603, 622, 629, 653, 675, 670-679, and 1320. Specific time requirements are set forth in each individual rule.

Rule 4.03, subd. 1, sets forth the timeline for child in need of protection or services matters. The following timeline is an example of how a case would proceed if it related to a non-Indian child who has been removed from the child's home:

Day
Event

1
Child removed from home

3
Emergency Protective Care Hearing

3-13
Admit/Deny Hearing

14-53
Pretrial Hearing

63
Trial

79
Findings/Adjudication

79-88
Disposition Hearing

168-178
Disposition Review Hearing

180
Permanency Progress Review Hearing

258-268
Disposition Review Hearing

335
Permanency Petition Filed

348-358
Disposition Review Hearing

365
Admit/Deny Hearing on Permanency Petition

455+
Post-Permanency Review Hearings (if appropriate)

52 M.S.A., Juvenile Protection Procedure Rule 8. 04
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
B. General Operating Rules
Rule 8. Accessibility of Juvenile Protection Case Records
Rule 8.04. Records Not Accessible to the Public or Parties

The following records (a)--(m) in the court file are not accessible to the public. Unless otherwise ordered by the court, parties shall have access for inspection and copying to all records in the court file, except records (b), (d), and (e) listed below.

(a) official transcript of testimony taken during portions of proceedings that are closed by the presiding judge;

(b) audio tapes or video tapes of a child alleging or describing physical abuse, sexual abuse, or neglect of any child;

(d) portions of juvenile protection case records that identify reporters of abuse or neglect;

(e) HIV test results;

(f) medical records, chemical dependency evaluations and records, psychological evaluations and records, and psychiatric evaluations and records;

(g) sexual offender treatment program reports;

(h) portions of photographs that identify a child;

(i) applications for ex parte emergency protective custody orders, and any resulting orders, until the hearing where all parties have an opportunity to be heard on the custody issue, provided that, if the order is requested in a child in need of protection or services (CHIPS) petition, only that portion of the petition that requests the order shall be deemed to be the application for purposes of this section (i);

(j) records or portions of records that specifically identify a minor victim of an alleged or adjudicated sexual assault;

(k) notice of pending court proceedings provided to an Indian tribe by the responsible social services agency pursuant to the Indian Child Welfare Act, 25 U.S.C. ? 1912;

(l) records or portions of records which the court in exceptional circumstances has deemed to be inaccessible to the public; and

(m) records or portions of records that identify the name, address, home, or location of any shelter care or foster care facility in which a child is placed pursuant to an emergency protective care placement, foster care placement, pre-adoptive placement, adoptive placement, or any other type of court ordered placement.

CREDIT(S)

Amended Nov. 12, 2003; June 10, 2009, eff. Aug. 1, 2009.

2001 ADVISORY COMMITTEE COMMENT--2003 AMENDMENTS

2006 Main Volume

Rule 8.04(a) prohibits public access to testimony of anyone taken during portions of a proceeding that are closed to the public by the presiding judge. Hearings or portions of hearings may be closed by the presiding judge only in exceptional circumstances.

Rule 8.04(b) prohibits public access to audio tapes and video tapes of a child alleging or describing physical abuse, sexual abuse, or neglect of any child. This includes all tapes made pursuant to Minn. Stat. ? 626.561, subd. 3 (Supp. 2001), during the course of a child abuse assessment, criminal investigation, or prosecution. This is consistent with Minn. Stat. ? 13.391 (Supp. 2001), which prohibits an individual who is a subject of the tape from obtaining a copy of the tape without a court order. See also In re Application of KSTP Television v. Ming Sen Shiue, 504 F. Supp. 360 (D. Minn. 1980) (television station not entitled to view and copy three hours of video tapes received in evidence in criminal trial). Similarly, Rule 8.04(c)prohibits public access to victims' statements, and this includes written records of interviews of victims made pursuant to Minn. Stat. ? 626.561, subd. 3 (Supp. 2001). This is consistent with Minn. Stat. ? 609.115, subds. 1, 5; ? 609.2244; and ? 611A.037 (Supp. 2001) (pre-sentence investigations to include victim impact statements; no public access; domestic abuse victim impact statement confidential).

Although victims' statements and audio tapes and video tapes of a child alleging or describing abuse or neglect of any child are inaccessible to the public under Rule 8.04(b) and (c), this does not prohibit the attorneys for the parties or the court from including information from the statements or tapes in the petition, court orders, and other documents that are otherwise accessible to the public. In contrast, Rule 8.04(d) prohibits public access to “portions of juvenile protection case records that identify reporters of abuse or neglect. ” By precluding public access to “portions of records that identify reporters of abuse or neglect,” the Advisory Committee did not intend to preclude public access to any other information included in the same document. Thus, courts and court administrators must redact identifying information from otherwise publicly accessible documents and then make the edited documents available to the public for inspection and copying. Similarly, Rule 8.04(e) requires that courts and court administrators redact from any publicly accessible juvenile court record any reference to HIV test results, and Rule 8.04(h) requires administrators to redact the face or other identifying features in a photograph of a child.

The prohibition of public access to the identity of reporters of abuse or neglect under Rule 8.04(d) is consistent with state law governing access to this information in the hands of social services, law enforcement, court services, schools, and other agencies. Minn. Stat. ? 626.556 (Supp. 2001). Rule 8.04(d) is also intended to help preserve federal funds for child abuse prevention and treatment programs. See 42 U.S.C. ? 5106a(b)(2)(A) and ? 5106a(b)(3) (1998); 45 C.F.R. ? 1340.1 to ? 1340.20 (1997). Rule 8.04(d) does not, however, apply to testimony of a witness taken during a proceeding that is open to the public.

Rule 8.04(e) prohibits public access to HIV test results. This is consistent with state and federal laws regarding court ordered testing for HIV. Minn. Stat. ? 611A.19 (Supp. 2001) (defendant convicted for criminal sexual conduct; no reference to the test, the motion requesting the test, the test order, or the test results may appear in the criminal record or be maintained in any record of the court or court services); 42 U.S.C. ? 14011 (1998) (defendant charged with crime; test result may be disclosed to victim only). The Committee is also aware that federal funding for early intervention services requires confidential treatment of this information. 42 U.S.C. ? 300ff-61(a); ? 300ff-63 (1998).

Rule 8.04(f) and (g) prohibit public access to medical records, chemical dependency evaluations and records, psychological evaluations and records, psychiatric evaluations and records, and sexual offender treatment program reports, unless admitted into evidence under Rule 8.05. This is consistent with public access limitations in criminal and juvenile delinquency proceedings that are open to the public. See, e.g., Minn. Stat. ? 609.115, subd. 6 (Supp. 2001) (pre-sentence investigation reports). Practitioners and the courts must be careful not to violate applicable federal laws. Under 42 U.S.C. ? 290dd-2 (1998), records of all federally assisted or regulated substance abuse treatment programs, including diagnosis and evaluation records, and all confidential communications made therein, except information required to be reported under a state mandatory child abuse reporting law, are confidential and may not be disclosed by the program unless disclosure is authorized by consent or court order. Thus, practitioners will have to obtain the relevant written consents from the parties or court orders, including protective orders, before disclosing certain medical records in their reports and submissions to the court. See 42 C.F.R. ? 2.1 to 2.67 (1997) (comprehensive regulations providing procedures that must be followed for consent and court-ordered disclosure of records and confidential communications).

Although similar requirements apply to educational records under the Federal Educational Rights and Privacy Act (FERPA), 20 U.S.C. ? 1232g, 1417, and ? 11432 (1998); 34 C.F.R. ? 99.1 to ? 99.67 (1997), FERPA allows schools to disclose education records without consent or court order in certain circumstances, including disclosures to state and local officials under laws in effect before November 19, 1974. 20 U.S.C. ? 1232g(b)(1)(E)(i) (1998); 34 C.F.R. ? 99.31(a)(5)(i)(A) (1997). Authorization to disclose truancy to the county attorney, for example, was in effect before that date and continues under current law. See Minn. Stat. ? 120.12 (1974) (superintendent to notify county attorney if truancy continues after notice to parent); 1987 Minn. Laws ch. 178 ? 10 (repealing section 120.12 and replacing with current section 120.103, which adds mediation process before notice to county attorney); see also Minn. Stat. ? 260A.06-.07 (Supp. 2001) (referral to county attorney from school attendance review boards; county attorney truancy mediation program notice includes warning that court action may be taken). Practitioners will have to review the procedures under which they receive education records from schools and, where necessary, obtain relevant written consents or protective orders before disclosing certain education records in their reports and submissions to the court. Additional information regarding FERPA may be found in Sharing Information: A Guide to the Family Educational Rights and Privacy Act and Participation in Juvenile justice Programs (U.S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Washington, D.C. 20531, June 1997) (includes hypothetical disclosure situations and complete set of federal regulations).

Rule 8.04(h) prohibits public access to portions of photographs that identify a child, and requires administrators to redact the face or other identifying features in a photograph of a child before permitting public access. Any appropriate concern regarding public access to the remaining portions of such a photograph can be addressed through a protective order (see Rule 8.07).

Rule 8.04(i) precludes public access to an ex parte emergency protective custody order, until the hearing where all parties have an opportunity to be heard on the custody issue. This provision is designed to reduce the risk that a parent or legal custodian would try to hide a child before the child can be placed in protective custody or to take the child from custody before the court can hear the matter. See, e. g., Minn. R. Juv. P. 65 (Supp. 2001) (order must either direct that child be brought immediately before the court or taken to a placement facility designated by the court; parent or legal custodian, if present when child is taken into custody, shall immediately be informed of existence of order and reasons why child is being taken into custody). Rule 8.04(i) also precludes public access to the application or request for the protective custody order, except that if the request is made in a Child In Need of Protection or Services (CHIPS) petition, only that portion of the petition that requests the order is inaccessible to the public.

Rule 8.04(j) precludes public access to portions of records that specifically identify a minor victim of sexual assault. This will require court administrators to redact information from case records that specifically identifies the minor victim, including the victim's name and address. Rule 8.04(j) does not preclude public access to other information in the particular record. This is intended to parallel the treatment of victim identities in criminal and juvenile delinquency proceedings involving sexual assault charges under Minn. Stat. ? 609.3471 (Supp. 2001). Thus, the term “sexual assault” includes any act described in Minnesota Statutes ? 609.342, ? 609.343, ? 609.344, and ? 609.345. The Committee considered using the term “sexual abuse” but felt that it was a limited subcategory of “sexual assault.” See Minn. Stat. ? 626.556, subd. 2(a) (Supp. 2001) (“sexual abuse” includes violations of ? 609.342--.345 committed by person in a position of authority, responsible for child's care, or having a significant relationship with the child). Rule 8.04(j) does not require a finding that sexual assault occurred. An allegation of sexual assault is sufficient.

Rule 8.04(k) precludes public access to the notice of pending proceedings given by the responsible social services agency to an Indian child's tribe or to the Secretary of the Interior pursuant to 25 U.S.C. ? 1912(a) (1998). The notice includes extensive personal information about the child, including all known information on direct lineal ancestors, and requires parties who receive the notice to keep it confidential. 25 C.F.R. ? 23.11(d), (e) (1997). Notices are routinely given in doubtful cases because lack of notice can be fatal to a state court proceeding. See 25 U.S.C. ? 1911 (1998) (exclusive jurisdiction of tribes; right to intervene; transfer of jurisdiction). The Committee believed that public access to information regarding the child's tribal heritage is appropriately given whenever a tribe intervenes or petitions for transfer of jurisdiction. Rule 8.04(k) does not preclude public access to intervention motions or transfer petitions.

Rule 8.04(l) recognizes that courts may, in exceptional circumstances, issue protective orders precluding public access to certain records or portions of records. Records of closed proceedings are inaccessible to the public under Rule 8.04(a). Procedures for issuing protective orders are set forth in Rule 8.07.

Rule 8.04(m) prohibits public access to the names, addresses, home, location, or other identifying information about the foster parents, foster care institutions, adoptive parents, and other persons and institutions providing care or pre-adoptive care of the child. This is consistent with the confidentiality accorded adoption proceedings. It is also designed to reduce the risk of continuing contact by someone whose parental rights have been terminated or who is a potentially dangerous family member. If deemed appropriate, the name, address, home, location, or other identifying information about a child's foster placement may be protected from a party through issuance of a protective order pursuant to Rule 8.07

Notwithstanding the list of inaccessible case records in Rule 8.04(a) through (m), many juvenile protection case records will typically be accessible to the public. Examples include: petitions, other than petitions for paternity; summons; affidavits of publication or service; certificates of representation; orders; hearing and trial notices; subpoenas; names of witnesses; motions and supporting affidavits and legal memoranda; transcripts; and reports of social workers and guardians ad litem. With the exception of information that must be redacted under Rule 8.04(d), (e), and (h), these records will be accessible to the public notwithstanding that they contain a summary of information derived from another record that is not accessible to the public. For example, a social services or guardian ad litem report might discuss the results of a chemical dependency evaluation. Although the chemical dependency evaluation itself is not accessible to the public under Rule 8.04(f), discussion of the details of that evaluation in the social services or guardian ad litem report need not be redacted before public disclosure of the report. Finally, it must be remembered that public access under this rule would not apply to records filed with the court before the effective date of this rule (see Rule 8.02) or to reports of a social worker or guardian ad litem that have not been made a part of the court file (see Rule 8.03).

2006 ADVISORY COMMITTEE COMMENT

2011 Electronic Update

The child's name and other identifying information are not to be redacted from records that are accessible to the public, except under Rule 8.04(j) when the child is the victim of an alleged or adjudicated sexual assault and under Rule 8.04(d) where the child is specifically identified as the reporter of the abuse or neglect. In the latter instance, the child's name and other identifying information should be redacted only in those instances where it is used as the reporter of abuse or neglect but should not be redacted when referenced elsewhere in the record.

52 M.S.A., Juvenile Protection Procedure Rule 30. 10
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 30. Emergency Protective Care Hearing
Rule 30.10. Protective Care Findings and Order

Within three (3) days of the conclusion of the emergency protective care hearing the court shall issue a written order which shall include findings pursuant to Rules 30.08 and 30.09 and which shall order:

(a) that the child:

(1) continue in protective care;

(2) return home with conditions to ensure the safety of the child or others;

(3) return home with reasonable conditions of release; or

(4) return home with no conditions;

(b) conditions pursuant to subdivision (a), if any, to be imposed upon the parent, legal custodian, or a party;

(d) terms of parental and sibling visitation pending further proceedings;

(e) the parent's responsibility for costs of care pursuant to Minnesota Statutes ? 260C.331, subd. 1;

(f) if the court knows or has reason to know that the child is an Indian child, notice of the proceedings shall be sent to the Indian child's parents or Indian custodian and Indian child's tribe consistent with 25 U.S.C. ? 1912(a); Minnesota Statutes ? 260.761, subd. 3; and Rule 32.06; and

(g) if the child is determined to be an Indian child and is proposed to be placed in foster care, testimony, pursuant to Rule 49, of a qualified expert witness.

CREDIT(S)

Amended Nov. 12, 2003; Dec. 1, 2006, eff. Jan. 1, 2007; June 10, 2009, eff. Aug. 1, 2009.

1999 ADVISORY COMMITTEE COMMENT--2003 AMENDMENTS

2006 Main Volume

Minnesota Statutes ? 260C.178, subd. 1(c), provides as follows:

[In a proceeding regarding a child in need of protection or services,] the court, before determining whether a child should continue in custody, shall also make a determination, consistent with [Minnesota Statutes ?] 260.012 as to whether reasonable efforts, or in the case of an Indian child, active efforts, according to the Indian Child Welfare Act of 1978, United States Code, title 25, section 1912(d), were made to prevent placement. The court shall also determine whether there are available services that would prevent the need for further detention.

In compliance with the statutory mandate of Minnesota Statutes ? 260C.178, Rules 30.08 and 30.09 require the court to elicit relevant evidence from the petitioner and make findings as to whether the child is in imminent danger, whether the county made reasonable efforts to prevent removal or eliminate the need for removal, and whether there are services the court could order to allow the child to safely return home. Rule 30.10 requires that the court issue a written order that includes specific findings in support of the order.

2006 ADVISORY COMMITTEE COMMENT--2009 AMENDMENTS

2011 Electronic Update

When the court orders a child into “protective care,” the court is ordering the child placed in foster care. That means the responsible social services agency has the right to temporary physical custody and control of the child. See Rule 2.01(19); Minn. Stat. ?? 260C.178, subd. 1; and 260C.007, subd. 18. The responsible social services agency must make an individualized determination that the placement selected is in the best interests of the child using the eight factors set out in the statute. Minn. Stat. ? 260C.201, subd. 1(a)(2)(ii), and ? 260C.212, subd. 2. The agency documents its use of the eight best interest factors in the Out-of-Home Placement Plan required under Minn. Stat. ? 260C.212, subd. 1, and Rule 37.02. The court reviews the agency's use of the eight statutory best interest factors during the hearing required under Rule 41 and Minn. Stat. ? 260C.193, subd. 3.

When a child is in foster care, the agency is responsible for the cost of placement, and may seek reimbursement from the child and parent under Minn. Stat. ? 260C.331, subd. 1, and, in the case of eligible children, from the federal government under Title IV-E of the Social Security Act, 42 U.S.C. ? 670 et al. Federal reimbursement to counties for the cost of foster care in Minnesota is about 50% of the cost and offers the opportunity for significant savings to counties. One of the requirements for federal reimbursement is that the agency be the entity responsible for selecting the placement. The federal regulation that accompanies Title IV-E states “FFP [Federal Financial Participation--that is, Title IV-E reimbursement] is not available when a court orders a placement with a specific foster care provider.” See 45 CFR ? 1356.21(g). The Minnesota Department of Human Services recommends that orders for specific placements be limited to help ensure that Title IV-E reimbursements are not jeopardized. See Minn. Dept. of Human Servs., Bull. No. 01-68-04, Title IV-E Updates (Apr. 11, 2001). The only specific authority under Minnesota's statutes for the court to order a particular placement is Minn. Stat. ? 260C.193, subd. 3, which permits the court to order a child placed with a relative who qualifies to be licensed if the agency has not made efforts to locate a relative as required under Minn. Stat. ? 260C.212, subd. 5. For these reasons, Rule 30.10 omits any requirement that the court order the child placed in a particular facility or with a particular relative.

2008 ADVISORY COMMITTEE COMMENT

2011 Electronic Update

Notice to Indian Child's Parent, Indian Custodian, and Indian Tribe Required under ICWA. See the 2008 Advisory Committee Comment following Rule 34.03 for information about the notice required under the Indian Child Welfare Act ( ICWA) to be provided to the Indian child's parent, Indian custodian, and Indian tribe, including timing of the notice and time to respond.

Emergency Protective Care Placement Pending ICWA Notice. While both the ICWA and Minnesota law require notice to the Indian child's parent or Indian custodian and Indian child's tribe regarding the juvenile protection proceeding, 25 U.S.C. ? 1922 provides that a state may take emergency action to protect an Indian child who is domiciled or resides on a reservation but is temporarily located off the reservation. While there is no such explicit provision in the ICWA regarding an Indian child who is not domiciled on or a resident of a reservation, by analogy there is general recognition that the state may take emergency action to protect an Indian child who is not domiciled on or resident of a reservation. It is not possible to send the ICWA notice referred to in Rule 32.06 and meet the timing requirements of 25 U.S.C. ? 1912(a) before the emergency removal hearing. The ICWA notice that the court will direct be provided under Rule 30.10(f) is required under Rule 32.06 before the Admit/Deny Hearing may be held. The timing of the Admit/Deny Hearing in matters governed by the ICWA may be different due to the notice requirement of Rule 32.06.

52 M.S.A., Juvenile Protection Procedure Rule 32. 06

Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 32. Summons and Notice
Rule 32.06. Petitioner's Notice Responsibility Under Indian Child Welfare Act

Pursuant to 25 U.S.C. ? 1912(a), in any juvenile protection proceeding where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe of the pending proceedings and of the right of intervention pursuant to Rule 23. Such notice shall be by registered mail with return receipt requested, unless personal service has been accomplished. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary of the Interior in like manner, who shall have fifteen (15) days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten (10) days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary of the Interior, provided that the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty (20) additional days to prepare for such proceeding. The original or a copy of each notice shall be filed with the court together with any return receipts or other proof of service.

CREDIT(S)

Amended Nov. 12, 2003; Dec. 1, 2006, eff. Jan. 1, 2007; June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 33. 02
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 33. Petition
Rule 33.02. Content

Subd. 1. Generally. Every petition filed with the court in a juvenile protection matter, or a sworn affidavit accompanying such petition, shall contain:

(a) a statement of facts that, if proven, would support the relief requested in the petition;

(b) the child's name, date of birth, race, gender, current address unless stating the address would endanger the child or seriously risk disruption of the current placement, and, if the child is believed to be an Indian child, the name of the child's tribe;

(c) the names, race, dates of birth, residences, and post office addresses of the child's parents when known, and, if the child is believed to be an Indian child, the name of the child's tribe;

(d) the name, residence, and post office address of the child's legal custodian, the person having custody or control of the child, the nearest known relative if no parent or legal custodian can be found, and, if the child is believed to be an Indian child, the name and post office address of the child's Indian custodian, if any, and the Indian custodian's tribal affiliation;

(e) the name, residence, and post office address of the spouse of the child;

(f) the statutory grounds on which the petition is based, together with a recitation of the relevant portion of the subdivision(s);

(g) a statement regarding the applicability of the Indian Child Welfare Act;

(h) the names and addresses of the parties identified in Rule 21, as well as a statement designating them as parties;

(i) the names and addresses of the participants identified in Rule 22, as well as a statement designating them as participants;

(j) if the child is believed to be an Indian child, a statement regarding:

(1) the specific actions that have been taken to prevent the child's removal from, and to safely return the child to, the custody of the parents or Indian custodian;

(2) whether the residence of the child is believed to be on an Indian reservation and, if so, the name of the reservation;

(3) whether the child is a ward of a tribal court and, if so, the name of the tribe; and

(4) whether the child's tribe has exclusive jurisdiction pursuant to 25 U.S.C. ? 1911(a).

If any information required by subdivision 1 is unknown at the time of the filing of the petition, as soon as such information becomes known to the petitioner it shall be provided to the court and parties either orally on the record, by sworn affidavit, or by amended petition. If presented orally on the record, the court shall annotate the petition to reflect the updated information.

Subd. 2. Child in Need of Protection or Services Matters.

(a) Petitions Drafted and Filed by County Attorney. A child in need of protection or services matter is defined in Minnesota Statutes ? 260C.007, subd. 6. All child in need of protection or services petitions shall be drafted and filed under the supervision of the county attorney, except as provided in Minnesota Statutes ? 260C.141, subd. 1, and subdivision 2(b) of this rule.

(b) Petitions Drafted and Filed By Others.

(1) Petition Form. A child in need of protection or services petition filed by an individual who is not a county attorney or an agent of the Commissioner of Human Services shall be filed on a form developed by the state court administrator. Copies of the form shall be available from the court administrator in each county.

(2) Additional Content Requirements for Petitions Not Filed by County Attorney. In addition to the content requirements set forth in subdivision 1, a petition filed by an individual who is not a county attorney or an agent of the Commissioner of Human Services shall contain:

(i) a statement that the petitioner has reported the circumstances underlying the petition to the responsible social services agency and that protection or services were not provided to the child;

(ii) a statement, including court file numbers where possible, of pending juvenile or family court proceedings and prior or present juvenile or family court orders relating to the child;

(iii) a statement regarding the relationship of the petitioner to the child and to any other parties; and

(3) Review by Court Administrator. Any petition filed by an individual who is not a county attorney or an agent of the Commissioner of Human Services shall be reviewed by the court administrator before it is filed to determine whether it is complete. The court administrator may reject the petition as incomplete if it does not indicate that the petitioner has contacted the responsible social services agency.

(4) Court Review. Within three (3) days of the date a petition is filed by a person who is not a county attorney or an agent of the Commissioner of Human Services, the court shall review the petition. If the court determines that the petition and attachments establish a prima facie case that a child in need of protection or services matter exists and that the child is the subject of that matter, the court shall set the matter for an admit/deny hearing pursuant to Rule 34 and shall direct notice pursuant to Rule 32. The court shall not allow a petition to proceed if it appears that the sole purpose of the petition is to modify custody between the parents or if it fails to set forth the information required in subdivisions 1 and 2(b) of this rule.

(1) When Required. In addition to the content requirements of subdivisions 1 and 2(b), a petition establishing a prima facie case that a child in need of protection or services matter exists and that the child is the subject of that matter shall be filed with the court:

(i) before the court may issue an ex parte order for emergency protective care pursuant to Rule 28; or

(ii) before an emergency protective care hearing is held pursuant to Rule 30 for a child taken into emergency protective care without a court order.

(2) Manner. The facts establishing a prima facie case that a child in need of protection or services matter exists and that the child is the subject of that matter may be set forth in writing in or with the petition, or in supporting affidavits, and may be supplemented by sworn testimony of witnesses taken before the court. If such testimony is taken, a note stating this fact shall be made by the court on the petition. The testimony shall be recorded pursuant to Rule 11.

Subd. 3. Termination of Parental Rights Matters.

(a) Generally. A termination of parental rights matter shall be entitled “Petition to Terminate Parental Rights” and shall conform to the requirements of Minnesota Statutes ? 260C.141.

(b) Petitions Drafted and Filed By Others.

(1) Petition Form. A termination of parental rights petition filed by an individual who is not a county attorney or responsible social services agency shall be filed on a form developed by the state court administrator. Copies of the form shall be available from the court administrator in each county.

(i) a statement, including court file numbers where possible, of pending juvenile or family court proceedings and prior or present juvenile or family court orders relating to the child;

(ii) a statement regarding the relationship of the petitioner to the child and to any other parties; and

(iii) a statement identifying any past or pending cases involving the child or family that is the subject of the petition.

(c) Petitions Seeking Alternative Permanent Placement Relief. In addition to the content requirements set forth in subdivision 1, any termination of parental rights petition filed by the county attorney or agent of the Commissioner of Human Services may seek alternative permanent placement relief, and any other party may seek only transfer of permanent legal and physical custody to a relative as the alternative to termination of parental rights. A petition seeking alternative permanent placement relief shall identify which proposed permanent placement option the petitioner believes is in the best interests of the child. A petition may seek separate permanent placement relief for each child named as a subject of the petition as long as the petition identifies which option(s) is sought for each child and why that option(s) is in the best interests of the child. At the admit/deny hearing on a petition that seeks alternative relief, each party shall identify on the record the permanent placement option that is in the best interests of the child.

Subd. 4. Permanent Placement Matters.

(a) Captions and Title. Each petition in a permanent placement matter, or a sworn affidavit accompanying each petition, shall contain a title denoting the permanent relief sought:

(1) A transfer of permanent legal and physical custody matter shall be entitled “Juvenile Protection Petition to Transfer Permanent Legal and Physical Custody” and shall name a fit and willing relative as a proposed permanent legal and physical custodian.

(2) A request for long-term foster care shall be entitled “Juvenile Protection Petition for Long-Term Foster Care.”

(3) A request for foster care for a specified period of time for a child adjudicated to be in need of protection or services solely on the basis of the child's behavior shall be entitled “Juvenile Protection Petition for Foster Care for a Specific Period of Time.”

(b) Petitions Seeking Alternative Placement Relief. Any permanent placement petition filed by the county attorney or agent of the Commissioner of Human Services may seek alternative permanent placement relief, including termination of parental rights, transfer of permanent legal and physical custody to a relative, or placement of the child in long-term foster care. Any permanent placement petition filed by a party who is not the county attorney or agent of the Commissioner of Human Services may seek only transfer of permanent legal and physical custody to a relative as the alternative to termination of parental rights. A petition seeking alternative permanent placement relief shall identify which permanent placement option the petitioner believes is in the best interests of the child. A petition may seek separate permanent placement relief for each child named as a subject of the petition as long as the petition identifies which option(s) is sought for each child and why that option is in the best interests of the child. At the admit/deny hearing on a petition that seeks alternative relief, each party shall identify on the record the permanent placement option that is in the best interests of the child. If another party files a permanent placement petition in response to the county's petition, it must be filed and served at least fifteen (15) days prior to the date of trial.

Subd. 5. Out of State Party. If a party resides out of state, or if there is likelihood of interstate litigation, the petition or an attached affidavit shall include a statement regarding the whereabouts of the party and any other information required by the Uniform Child Custody Jurisdiction and Enforcement Act, Minnesota Statutes ? 518D.101 to ? 518D.317.

Subd. 6. Disclosure of Name and Address--Endangerment. If there is reason to believe that an individual may be endangered by disclosure of a name or address required to be provided pursuant to this rule, that name or address may be provided to the court in a separate informational statement and shall not be accessible to the public or to the parties. Upon notice and motion, the court may disclose the name or address as it deems appropriate.

CREDIT(S)

Amended Nov. 12, 2003; Dec. 1, 2006, eff. Jan. 1, 2007; Dec. 18, 2006, eff. Jan. 1, 2007; Jan. 4, 2007, eff. retroactive Jan. 1, 2007; June 10, 2009, eff. Aug. 1, 2009.

2008 ADVISORY COMMITTEE COMMENT

2011 Electronic Update

For a quote from the Indian Child Welfare Act ( ICWA) that addresses “exclusive jurisdiction,” see the 2008 Advisory Committee Comment following Rule 30.08.

52 M.S.A., Juvenile Protection Procedure Rule 34.02

Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 34. Admit/Deny Hearing
Rule 34.02. Timing

Subd. 1. Child in Placement.

(a) Generally. When the child is placed out of the child's home by court order, an admit/deny hearing shall be held within ten (10) days of the date of the emergency protective care hearing. Upon agreement of the parties, an admit/deny hearing may be combined with an emergency protective care hearing held pursuant to Rule 30.

(b) Termination of Parental Rights Matters. In a termination of parental rights matter the admit/deny hearing shall be held not less than ten (10) days after service of the summons and petition is complete upon the party.

(c) Permanent Placement Matters. In a permanent placement matter the admit/deny hearing shall be held not less than ten (10) days after service of the summons and petition is complete upon the party.

(d) Indian Child Welfare Act Matters.

(1) Parent's, Indian Custodian's or Tribe's Identity Known. In matters governed by the Indian Child Welfare Act, 25 U.S.C. ? 1901 et seq., the admit/deny hearing on a petition requesting the foster care placement of an Indian child, the permanent placement of an Indian child, or the termination of parental rights to an Indian child shall not be held until at least ten (10) days after receipt of the notice required under Rule 32.06, 25 U.S.C. ? 1912(a), and Minnesota Statutes ? 260.761, subd. 3. The parent, Indian custodian, or tribe shall, upon request, be granted up to twenty (20) additional days from receipt of the notice to prepare for the admit/deny hearing.

(2) Parent's, Indian Custodian's, or Tribe's Identity Unknown. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, the notice required under Rule 32.06, 25 U.S.C. ? 1912(a), and Minnesota Statutes ? 260.761, subd. 3, shall be sent to the Secretary of the Interior who shall have fifteen (15) days to provide the requisite notice to the parent or Indian custodian and the tribe. The admit/deny hearing shall be held at least twenty-five (25) days after receipt of the notice by the Secretary. The parent, Indian custodian, or tribe shall, upon request, be granted up to twenty (20) additional days from receipt of the notice to prepare for the admit/deny hearing.

Subd. 2. Child Not in Placement.

(a) Generally. When the child is not placed outside the child's home by court order, an admit/deny hearing shall be held no sooner than five (5) days and no later than twenty (20) days after the parties have been served with the summons and petition.

(b) Child's Behavior. In matters where the sole allegation is that the child's behavior is the basis for the petition and the child is not in placement, an admit/deny hearing shall be commenced within a reasonable time after service of the summons and petition upon the child.

Subd. 3. Possession of Petition. The parties have the right to have a copy of the petition at least three (3) days before the admit/deny hearing.

CREDIT(S)

Amended Nov. 12, 2003; Dec. 1, 2006, eff. Jan. 1, 2007; June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 39. 04
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 39. Trial
Rule 39.04. Standard of Proof

Subd. 1. Generally. Pursuant to Minnesota Statutes ? 260C.163, subd. 1(a), and the Indian Child Welfare Act, 25 U.S.C. ? 1912(e), in a child in need of protection or services matter, the standard of proof is clear and convincing evidence.

Subd. 2. Termination of Parental Rights and Other Permanent Placement Matters.

(a) Non-Indian Child. Pursuant to Minnesota Statutes ? 260C.317, subd. 1, in a termination of parental rights or other permanency matter involving a non-Indian child, the standard of proof is clear and convincing evidence.

(b) Indian Child. Pursuant to the Indian Child Welfare Act, 25 U.S. C. ? 1912(f), in a termination of parental rights matter involving an Indian child, the standard of proof is beyond a reasonable doubt.

CREDIT(S)

Amended Nov. 12, 2003; June 10, 2009, eff. Aug. 1, 2009.

1999 ADVISORY COMMITTEE COMMENT

2006 Main Volume

In In Re the Matter of M.S.S., 465 N.W.2d 412 (Minn. Ct. App. 1991), the court held that the parental rights to an Indian child may not be terminated unless the county proves beyond a reasonable doubt that it has complied with section 1912(f) of the Indian Child Welfare Act, 25 U.S.C. ? 1901et. seq., requiring the county to make active efforts to prevent or avoid placement.

52 M.S.A., Juvenile Protection Procedure Rule 39.05

Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 39. Trial
Rule 39.05. Decision

Subd. 1. Timing. Within fifteen (15) days of the conclusion of the testimony, during which time the court may require simultaneous written arguments to be filed and served, the court shall issue its findings and order regarding whether one or more statutory grounds set forth in the petition have been proved. The court may extend the period for issuing an order for an additional fifteen (15) days if the court finds that an extension of time is required in the interests of justice and the best interests of the child.

Subd. 2. Child in Need of Protection or Services Matters and Habitual Truant, Runaway, and Prostitution Matters. The court shall dismiss the petition if the statutory grounds have not been proved. If the court finds that one or more statutory grounds set forth in the petition have been proved, the court shall either enter or withhold adjudication pursuant to Rule 40 and schedule the matter for further proceedings pursuant to Rule 41. The findings and order shall be filed with the court administrator who shall proceed pursuant to Rule 10.

Subd. 3. Termination of Parental Rights and Other Permanency Matters.

(a) Generally. If the court finds that the statutory grounds set forth in the petition are not proved, the court shall either dismiss the petition or determine that the child is in need of protection or services. If the court determines that the child is in need of protection or services, the court shall either enter or withhold adjudication pursuant to Rule 40 and schedule further proceedings pursuant to Rule 41. If the court finds that one or more statutory grounds set forth in the termination of parental rights petition are proved, the court may terminate parental rights. If the court finds that any other permanency petition is proved, the court may order relief consistent with that petition. The findings and order shall be filed with the court administrator who shall proceed pursuant to Rule 10.

(b) Particularized Findings. In addition to making the findings in subdivision (a), the court shall also make findings regarding the following as appropriate:

(1) Non-Indian Child. In any termination of parental rights matter, the court shall make specific findings regarding the nature and extent of efforts made by the responsible social services agency to rehabilitate the parent and reunite the family, including, where applicable, a statement that reasonable efforts to prevent placement and for rehabilitation and reunification are not required as provided under Minnesota Statutes ? 260.012(a).

(2) Indian Child. In any termination of parental rights proceeding involving an Indian child, the court shall make specific findings regarding the following:

(i) Active Efforts. The petitioner has proven beyond a reasonable doubt that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(ii) Serious Emotional or Physical Damage. Based upon the testimony, pursuant to Rule 49, of at least one qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(3) Best Interests of the Child. Before ordering termination of parental rights, the court shall make a specific finding that termination is in the best interests of the child and shall analyze:

(i) the child's interests in preserving the parent-child relationship;

(ii) the parent's interests in preserving the parent-child relationship; and

(iii) any competing interests of the child.

(4) Best interests of an Indian Child. In proceedings involving an Indian child, the best interests of the child shall be determined consistent with the Indian Child Welfare Act, 25 U.S.C. ? 1901 et seq.

(5) Child's Interests Paramount. Where the interests of parent and child conflict, the interests of the child are paramount.

CREDIT(S)

Amended Nov. 12, 2003; Dec. 1, 2006, eff. Jan. 1, 2007; June 26, 2007, eff. July 1, 2007; June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 42.08

Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 42. Permanent Placement and Termination of Parental Rights Matters; Post-Permanency Review Requirements
Rule 42.08. Involuntary and Voluntary Termination of Parental Rights Proceedings

Subd. 1. Involuntary Termination of Parental Rights Proceedings. Upon petition pursuant to Minnesota Statutes ? 260C.301, subd. 1(b), and after an admit/deny hearing under Rule 34 or a trial under Rule 39, as appropriate, the court may issue an order granting or denying a petition to involuntarily terminate parental rights which shall include the following:

(a) a statement of the facts upon which the court bases its order;

(b) findings regarding how the order is in the best interests of the child;

(c) findings regarding the responsible social services agency's reasonable efforts, or, in the case of an Indian child active efforts, to reunify the child and the parent or that reasonable efforts for reunification are not required under Minnesota Statutes ? 260.012;

(d) if the child is an Indian child, findings regarding the testimony, pursuant to Rule 49, of at least one qualified expert witness;

(e) if termination of parental rights is ordered, the specific statutory grounds under Minnesota Statutes ? 260C.301, subd. 1(b), upon which the court issued its order and the facts supporting those grounds; and

(f) the effective date of the order.

Subd. 2. Voluntary Termination of Parental Rights Proceedings.

(a) Petition and Consent. Upon petition pursuant to Minnesota Statutes ? 260C.301, subd. 1(a), and voluntary consent of the parent, the court shall conduct a hearing regarding the voluntary termination of the person's parental rights.

(b) Oath. At the hearing, the parent shall be placed under oath for the purpose of:

(1) asking that the petition be granted; and

(2) establishing that there is good cause for termination of parental rights and that it is in the best interests of the child to terminate parental rights.

(1) advise the parent of the right to representation by counsel pursuant to Rule 25;

(2) determine whether the parent fully understands the consequences of termination of parental rights and the alternatives to termination;

(3) inquire as to the true voluntary nature of the parent's consent; and

(4) obtain a waiver of the right to trial on the involuntary petition when the parent is voluntarily consenting to termination of parental rights after an involuntary termination of parental rights petition has been filed.

(d) if the parent is not present in court but has signed a voluntary consent to termination of parental rights, the court shall determine whether there has been compliance with all statutory requirements regarding a written consent to termination of parental rights and whether the parent was thoroughly advised of and understood the right to trial, the right to representation by counsel, the consequences of termination of parental rights, and the alternatives to termination.

Subd. 3. Voluntary Termination of Parental Rights in Matters Governed by the Indian Child Welfare Act

When the child is an Indian child and the matter is governed by the Indian Child Welfare Act, 25 U.S.C. ? 1913, the following procedures apply to a voluntary termination of parental rights by an Indian parent.

(a) Procedures for Consent. The consent to terminate parental rights by the parent shall not be valid unless:

(1) executed in writing;

(2) recorded before the judge; and

(3) accompanied by the presiding judge's certificate that the terms and consequences of the consent were explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that the parent or Indian custodian fully understood the explanation in English or that it was translated into a language that the parent or Indian custodian understood.

(b) Timing of Consent. Any consent to termination of parental rights given prior to, or within ten days after, the birth of the Indian child shall not be valid.

(c) Parent's Right to Withdraw Consent. Any consent to termination of parental rights by a parent of an Indian child may be withdrawn by the parent at any time prior to the time the final order terminating the parent's rights.

Subd. 4. Notice to Parents Whose Rights Have Been Terminated Upon entry of an order terminating the parental rights of any person who is identified as a parent on the original birth record of the child, the court shall serve upon that person at the person's last known address written notice setting forth a statement regarding:

(a) the right of the person at any time to file with the state registrar of vital statistics a consent to disclosure, as defined in Minnesota Statutes ? 144.212, subd. 11;

(b) the right of the person at any time to file with the state registrar of vital statistics an affidavit stating that the information on the original birth record shall not be disclosed as provided in Minnesota Statutes ? 144.2252;

(c) the effect of failure to file either a consent to disclosure or an affidavit stating that the information on the original birth record shall not be disclosed; and

(d) the right of the parent to file an appeal pursuant to Rule 47.

Subd. 5. Review When Child is Under the Guardianship of the Commissioner of Human Services.

If the court terminates parental rights, the court shall schedule a review hearing ninety (90) days from the date the termination order is filed with the court, and at least every ninety (90) days thereafter, for the purpose of reviewing the progress towards finalization of adoption. Review under this rule is required unless the court has ordered the child into long-term foster care. The court shall notify the county attorney, responsible social services agency, the child's guardian ad litem, the child, the child's attorney, and the child's foster parent, pre-adoptive parent, and relative caregiver of the date and time of the hearing. In lieu of the court report required under Rule 38, not later than five (5) business days before the hearing the responsible social services agency shall file with the court and serve upon the parties a report which addresses the following:

(a) where the child currently resides, the length of time the child has resided in the current placement, the number of other placements the child has experienced, and whether the current foster care provider is willing to adopt the child;

(b) whether the responsible social services agency has made adequate efforts to identify, locate, and place the child with a relative willing to adopt the child; if the child is an Indian child, the agency's plan to meet the adoptive placement preferences of 25 U.S.C. ? 1915;

(c) if the child has siblings in out-of-home placement or previously placed for adoption, whether the child is placed with the siblings; if the child is not placed with siblings, whether the agency:

(1) must make further efforts to place the child with siblings; or

(2) obtain the consent of the Commissioner of Human Services to separate the child from siblings for adoption under Minnesota Statutes ? 259.24, subd. 1(e), and Minnesota Rules 9560.0450, subp. 2; and

(3) has developed a visitation plan for the siblings; if no visitation plan exists, the reason why;

(d) the efforts the agency has made to identify non-relative adoptive resources for the child including utilizing the State of Minnesota Adoption Registry and other strategies for identifying potential adoptive homes for the child; and

(e) if an adoptive home has been identified whether:

(1) placement has been made in the home;

(2) a preadoptive placement agreement has been signed;

(3) the child qualifies for adoption assistance payments, and if so, what the status of the adoption assistance agreement is;

(4) an adoption petition has been filed;

(5) a finalization hearing has been scheduled; and

(6) there are barriers to adoption and how those barriers might be removed.

(f) At least every twelve (12) months, the court shall enter a finding regarding whether or not the responsible social services agency has made reasonable efforts to finalize the permanent plan for the child as long as the permanent plan remains adoption.

(g) When an adoptive placement was made more than twelve (12) months prior to the review hearing and no hearing to finalize the adoption has been scheduled, a hearing under Minnesota Statutes ? 259.22, subd. 4, shall be scheduled.

CREDIT(S)

Former Rules 43.01, 43.03, subd. 1, and 43.04, amended Nov. 12, 2003; Dec. 1, 2006; Dec. 12, 2006. Renumbered Rule 42.08 and amended June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 42.09

Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 42. Permanent Placement and Termination of Parental Rights Matters; Post-Permanency Review Requirements
Rule 42.09. Guardianship and Legal Custody to the Commissioner of Human Services Upon Consent by the Child's Parent to Adopt Under Minn. Stat. ? 260C.201, subd. 11(d)

Subd. 1. Procedures. Without terminating parental rights, the court may award guardianship and legal custody to the Commissioner of Human Services under the following procedures:

(a) Voluntary Consent and Identified Prospective Adoptive Home. When there is an identified prospective adoptive home agreed to by the responsible social services agency that has agreed to adopt the child and the court accepts the parent's voluntary consent to adopt under Minnesota Statutes ? 259.24.

(b) Copies of Consent and Order to Commissioner. The court shall forward to the Commissioner of Human Services one copy of the consent to adopt, together with a certified copy of the order transferring guardianship and legal custody to the Commissioner.

Subd. 2. When Consent is Irrevocable. Consent to adoption executed by a parent under Minnesota Statute ? 260C.201, subd. 11(d)(5), is irrevocable upon acceptance by the court unless fraud is established and an order issues permitting revocation. In a matter governed by the Indian Child Welfare Act, 25 U.S.C. ? 1913, a consent to adopt given by the parent of an Indian child is revocable at any time prior to finalization of the adoption.

Subd. 3. Ninety (90) Day Review. The matter shall be reviewed in court at least every ninety (90) days under the requirements of Rule 42.08, subd. 5, as if a termination of parental rights had occurred.

CREDIT(S)

Former Rule 42.05, subd. 2, par. (d), amended Nov. 12, 2003; Dec. 1, 2006. Renumbered Rule 42.09 and amended June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 44. 03

Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 44. Review of Voluntary Placement Matters
Rule 44.03. Procedures When Court-Ordered Foster Care, Permanent Placement, or Termination of Parental Rights Sought

Subd. 1. Applicable Rules When Other than Voluntary Review is Sought. When a child enters foster care pursuant to a voluntary placement agreement under Minnesota Statutes ? 260C.212, subd. 8, and there is a sufficient evidentiary basis, the responsible social services agency may file a petition for termination of parental rights, a petition for permanent placement of the child away from the parent, or a petition alleging the child to be in need of protection or services stating sufficient facts to meet any definition of Minnesota Statutes ? 260C.007(6). The matter shall proceed under:

(a) Rule 30 if the petition requests an order for protective care under Rule 30.10 and Minnesota Statutes ? 260C.178; or

(b) Rule 34 if an order for protective care is not requested.

Subd. 2. Timing of Hearing. When a petition is filed under subdivision 1, timing of the required hearing shall be pursuant to:

(a) Rule 30.01 if the petition requests an order for protective care under Rule 30.10 and Minnesota Statutes ? 260C.178; or

(b) Rule 34.02 if an order for protective care is not requested.

CREDIT(S)

Adopted June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 46.03
Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 46. Relief from Order
Rule 46.03. Invalidation of Action Under ICWA

Subd. 1. Petition or Motion. Pursuant to 25 U.S.C. ? 1914, any Indian child who is the subject of any action for foster care placement or termination of parental rights, any parent or Indian custodian from whose custody an Indian child was removed, or the Indian child's tribe may seek to invalidate the action upon a showing that such action violates the Indian Child Welfare Act, 25 U.S.C. ?? 1911--1913.

(a) Motion. A motion to invalidate may be brought regarding a pending juvenile protection matter.

(b) Petition. A petition to invalidate may be brought regarding a juvenile protection matter in which juvenile court jurisdiction has been terminated.

Subd. 2. Form and Service. A motion or petition to invalidate shall be in writing pursuant to Rule 15.01 and shall be filed and served pursuant to Rule 15.02. Both a motion and a petition to invalidate shall be processed by the court as a motion. Upon receipt of a petition to invalidate a proceeding in which juvenile court jurisdiction has been terminated, the court administrator shall re-open the original juvenile protection file related to the petition.

Subd. 3. Hearing. Within thirty (30) days of the filing of a motion or petition to invalidate, the court shall hold an evidentiary hearing of sufficient length to address the issue raised in the motion or petition. A motion filed thirty (30) or more days prior to trial shall be heard prior to trial and the decision shall be issued prior to trial. A motion filed less than thirty (30) days prior to trial shall not delay commencement of the trial and the decision shall be issued as part of the trial decision.

Subd. 4. Findings and Order. Within fifteen (15) days of the conclusion of the evidentiary hearing on the motion or petition to invalidate, the court shall issue findings of fact, conclusions of law, and an order regarding the petition or motion to invalidate.

CREDIT(S)

Adopted Nov. 12, 2003. Amended June 10, 2009, eff. Aug. 1, 2009.

2008 ADVISORY COMMITTEE COMMENT

2011 Electronic Update

Grounds for Petition to Invalidate. Rule 46.03 establishes a procedure for filing a petition or motion to invalidate an action under the Indian Child Welfare Act ( ICWA). 25 U.S.C. ? 1914. Section 1914 of the ICWA permits an Indian child, the Indian child's parent or Indian custodian, or the Indian child's tribe to petition the court to invalidate any action for foster care placement or termination of parental rights upon a showing that the action violated the ICWA? 1911 (dealing with exclusive jurisdiction and transfer to tribal court), ? 1912 (dealing with notice to the Indian child's tribe regarding the district court proceedings, appointment of counsel, examination of reports, and testimony of a qualified expert witness), or ? 1913 (dealing with voluntary consent to foster care placement and termination of parental rights). Section 14 of the ICWA is silent about the time for bringing a petition to invalidate, the relief available, and whether relief is available even if there was no objection below.

Time Limit for Filing Petition to Invalidate. Although there is no time limit for bringing a petition to invalidate contained in section 1914 of the ICWA, the Alaska Supreme Court has held that a challenge to an adoption under section 1914 shall be brought within a year. In re Adoption of Erin G., 140 P.3d 886, 891 (Alaska 2006). In a slightly later case, the Alaska Supreme Court suggested that the time limit in an ICWA challenge brought under 42 U.S.C. ? 1983 would be two years. Dept. of Health & Soc. Servs. v. Native Village of Curyung, 151 P.3d 388, 411 (Alaska 2006). The authors of A Practical Guide to the Indian Child Welfare Act do not cite any other cases, but they disagree that there should be time limits which vary from state to state. Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act 161 (2007). The authors of The Indian Child Welfare Act Handbook recommend using the two-year time limit contained in ? 1913(d). B.J. Jones, M. Tilden & K. Gaines-Stoner, The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children 156 (2d ed. 2008).

Reach of Relief Available. There are a number of cases which hold that section 1914 of the ICWA is not available to attack an ICWA violation occurring during the foster care placement proceeding (i.e., child in need of protection or services (CHIPS)) as part of the termination of parental rights proceeding. In Re Welfare of the Children of S.W., et.al., Parents, 727 N.W.2d 144 (Minn. Ct. App. 2007); Interest of J.D.B., 584 N.W.2d 577 (Iowa Ct. App. 1998); Interest of J.W., 528 N.W.2d 657, 661 (Iowa Ct. App. 1995); D.E.D. v. State, 704 P.2d 774, 782 (Alaska 1985); In Re M.E.M., 679 P.2d 1241, 1243-44 (Mont. 1984). Although these courts have rejected this sort of collateral attack, there is some suggestion in all four of these cases that a different decision might have resulted if the termination of parental rights judge had made extensive use of the evidence introduced in the foster care placement proceeding in which the violations occurred. The North Dakota Supreme Court appears to agree. See B.R.T. v. Social Serv. Bd., 391 N.W.2d 594, 600 n. 10 (N.D. 1986).

The Native American Rights Fund cites three cases that, it says, compel vacation of the adjudication for specific ICWA violations: Interest of H.D., 729 P.2d 1234, 1240-41 (Kansas Ct. App. 1986); In Re L.A.M., 727 P.2d 1057, 1060 (Alaska 1986); and Morgan v. Morgan et al., 364 N.W.2d 754, 758 (Mich. Ct. App. 1985). Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act 162 (2007). But none of these three cases invalidates a subsequent termination of parental rights because of ICWA violations occurring during the foster care placement proceeding.

In an American Bar Association treatise on the subject, the authors argue a broader role for section 1914, including collateral attack in federal court. See B.J. Jones, M. Tilden & K. Gaines-Stoner, The Indian Child Welfare Act Handbook: A Legal Guide to the Custody and Adoption of Native American Children, pp. 153-56 (2d ed. 2008).

Necessity of Objection During Trial Court Proceeding. Although it is not a section 1914 case, Matter of L.A.M., 727 P.2d 1057, 1059 (Alaska 1986), specifically holds that objection during the trial court proceeding is not required to preserve an objection on appeal to a section 1912 violation. The Native American Rights Fund lists two cases which hold that an objection below is not necessary to seek relief under section 1914: In re S.R.M., 153 P.3d 438 (Colo. Ct. App. 2006); and In re S.M.H., 103 P.3d 976, 982 (Kan. Ct. App. 2005). Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act 161 (2007).

52 M.S.A., Juvenile Protection Procedure Rule 49. 01

Minnesota Statutes Annotated Currentness
Rules of Juvenile Protection Procedure (Refs & Annos)
D. Course of Case
Rule 49. Qualified Expert Witness Requirement Under the Indian Child Welfare Act
Rule 49.01. Timing--Temporary Emergency Custody

Absent extraordinary circumstances, temporary emergency custody of an Indian child shall not be continued for more than ninety (90) days without a determination by the court, supported by the testimony of at least one qualified expert witness that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

CREDIT(S)

Adopted June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 49. 02

In the case of an Indian child, foster care placement shall not be ordered in the absence of testimony of at least one qualified expert witness, as defined in Rule 2.01(21), that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

CREDIT(S)

Adopted June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Juvenile Protection Procedure Rule 49. 03

In the case of an Indian child, termination of parental rights shall not be ordered in the absence of testimony of at least one qualified expert witness that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

CREDIT(S)

Adopted June 10, 2009, eff. Aug. 1, 2009.

52 M.S.A., Adoption Procedure Rule 2. 01
Minnesota Statutes Annotated Currentness
Rules of Adoption Procedure
Rule 2. Definitions
Rule 2.01. Definitions

The terms used in these rules shall have the following meanings:

(a) “Adjudicated father” means an individual determined by a court, or pursuant to a Recognition of Parentage under Minn. Stat. ? 257.75, subd. 3, to be the biological father of the child.

(b) “Adoption case records” means all records of the court regarding a particular adoption matter, including all records filed with the court, all records maintained by the court, and all reporter's notes and tapes, electronic recordings, and transcripts of hearings and trials relating to the adoption matter.

(c) “Adoption matter” means any proceeding for adoption of a child or an adult in the juvenile courts of Minnesota, including a step-parent adoption, relative adoption, intercountry adoption, adoption resulting from a juvenile protection matter, and any other type of adoption proceeding.

(d) “Agency,” as defined in Minn. Stat. ? 259.21, subd. 6, and as referenced in Minn. Stat. ? 245A.02 to ? 245A.16 and ? 252.28, subd. 2, means an organization or department of government designated or authorized by law to place children for adoption or any person, group of persons, organization, association, or society licensed or certified by the Commissioner of Human Services to place children for adoption, including a Minnesota federally recognized tribe.

(e) “Birth relative,” for purposes of entering into a communication or contact agreement pursuant to Rule 34, means a parent, stepparent, grandparent, brother, sister, uncle, or aunt of a child. This relationship may be by blood, adoption, or marriage. “Birth relative” of an Indian child 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, also includes any person age eighteen (18) or older who is the Indian child's niece, nephew, first or second cousin, brother-in-law, or sister-in-law as provided in the Indian Child Welfare Act, 25 U.S.C. ? 1903(2).

(f) “Child” means a person under the age of 18 years.

(g) “Child placing agency” means a private agency making or supervising an adoptive placement.

(h) “Commissioner” means the Commissioner of Human Services of the State of Minnesota.

(i) “Contested adoption” means an adoption matter where:

(1) there are two or more adoption petitions regarding the same child;

(2) a party has filed a written challenge to the adoption; or

(3) the Commissioner of Human Services or a legal custodian or legal guardian who is not a parent has withheld consent.

(j) “Direct placement adoption” means the placement of a child by a biological parent or legal guardian, other than an agency, under the procedure for adoption authorized by Minnesota Statutes ? 259.47.

(k) “Father.”See “adjudicated father” and “putative father” as defined in this rule.

(l) “Indian child” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(4), and modified by Minnesota Statutes ? 260.755, subd. 8, means any unmarried person who is under age eighteen (18) and is either (1) a member of an Indian tribe or (2) is eligible for membership in an Indian tribe.

(m) “Indian custodian,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(1)(6), and Minn. Stat. ? 260.755, subd. 10, means an Indian person who has legal custody of an Indian child pursuant to tribal law or custom or under State law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child.

(n) “Indian tribe,” as defined in the Indian Child Welfare Act, 25 U.S.C. ? 1903(1)(8), and Minn. Stat. ? 260.755, subd. 12, means an Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary of the Interior because of their status as Indians, including any band under the Alaska Native Claims Settlement Act, 43 U.S.C. ? 1602(c).

(o) “Individual related to child,” as defined under Minn. Stat. ? 245A.02, subd. 13, means a spouse, a parent, a biological or adopted child or stepchild, a stepparent, a stepbrother, a stepsister, a niece, a nephew, an adoptive parent, a grandparent, a sibling, an aunt, an uncle, or a legal guardian. Distinguish “relative” under Rule 2.01(x).

(p) “Legal custodian” means a person, including a legal guardian, who by court order or statute has sole or joint legal custody of the child.

(q) “Legal guardian” means a person who is the court-appointed legal guardian of the child pursuant to Minn. Stat. ? 260C.325, subds. 1 and 3, or Minn. Stat. Chapter 525 or an equivalent law in another jurisdiction.

(r) “Local social services agency” means the agency in the county of the petitioner's residence.

(s) “Parent” means the biological or adoptive parent of a child, including an adjudicated father. Pursuant to Minn. Stat. ? 260.755, subd. 14, “parent” also means the biological parent of an Indian child, or any Indian person who has lawfully adopted an Indian child, including a person who has adopted a child by tribal law or custom. “Parent” does not mean an unmarried father whose paternity has not been acknowledged or established.

(t) “Petitioner” means a person, with a spouse, if any, petitioning for the adoption of any person pursuant to Minn. Stat. ? 259.21 to ? 259.63.

(u) “Placement” means the transfer of physical custody of a child from a biological parent, legal guardian, or agency with placement authority to a prospective adoptive home.

(v) “Placement activities” means any of the following:

(1) placement of a child;

(2) arranging or providing short-term foster care pending an adoptive placement;

(3) facilitating placement by maintaining a list in any form of biological parents or prospective adoptive parents;

(4) collecting health and social histories of a birth family;

(5) conducting an adoption study;

(6) witnessing consents to an adoption; or

(7) engaging in any activity listed in clauses (1) to (6) for purposes of fulfilling any requirements of the Interstate Compact on the Placement of Children, Minn. Stat. ? 260.851 to ? 260.91.

(w) “Putative father” means a man, including a male who is less than 18 years of age, who may be a child's father, but who:

(1) is not married to the child's mother on or before the date that the child was or is to be born; and

(2) has not established paternity of the child according to Minn. Stat. ? 257.57 in a court proceeding before the filing of an adoption petition regarding the child; or

(3) has not signed a recognition of parentage under Minn. Stat. ? 257.75, which has not been revoked or vacated.

(x) “Relative” means a person related to the child by blood, marriage, or adoption, or an individual who is an important friend with whom the child has resided or had significant contact. 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 laws or custom, any person age 18 or older who is the Indian child's grandparent, aunt, uncle, brother, sister, niece, nephew, first or second cousin, brother-in-law, sister-in-law, or step-parent as provided in the Indian Child Welfare Act of 1978, 25 U.S.C. ? 1903(2). Distinguish “Individual Related to Child” under Rule 2.01(o).

(y) “Responsible social services agency” means the county agency acting on behalf of the Commissioner of Human Services as legal guardian or legal custodian of the child.

(z) “Working day” refers solely to revocation of consents and means Monday through Friday, excluding any holiday as defined under Minn. Stat. ? 645.44, subd. 5.

(aa) “Intercountry adoption” means adoption of a child by a Minnesota resident under the laws of a foreign country or the adoption under the laws of Minnesota of a child born in another country.

CREDIT(S)

Adopted Sept. 30, 2004, eff. Jan. 1, 2005. Amended Dec. 1, 2006, eff. Jan. 1, 2007.

52 M.S.A., Adoption Procedure Rule 2. 01, MN ST ADOPT Rule 2. 01