III. OPTIONS FOR OBTAINING THE LEGAL RIGHT TO CARE FOR AND HAVE CUSTODY OF A CHILD
1. What is a Delegation of Powers?
A Delegation of Powers is a formal document6 by which a child's parent, legal custodian or guardian gives another person the temporary authority to care for and make decisions regarding that child. A Delegation of Powers gives the caregiver important authority with regard to a child, but not legal custody of the child. The only way a person can get legal custody of a child is by court order.
2. What rights does a Delegation of Powers give to a caregiver?
A Delegation of Powers gives a caregiver the authority to make most decisions regarding the care, custody or property of a child. For example, a delegation may give the grandparent the power to:
- Authorize medical treatment for the child;
- Enroll the child in school; and
- Provide a home, care, and supervision for the child.
A Delegation of Powers does not give a caregiver authority to consent to a child's marriage or adoption.
3. When should a Delegation of Powers be used?
A Delegation of Powers is best suited for those situations where both the caregiver and the child's parent(s) agree that the caregiver should temporarily care for the child for a short period of time. It is important to have the agreement in writing so that schools, doctors, and others will accept the caregiver as legally able to act on the child's behalf. In addition, the child's parents can use the Delegation of Powers to help show that they have not abandoned the child. If the parent or caregiver believes that custody should be vested in the caregiver for a longer period of time, or if the parent is ill and likely to become incapacitated, a stand-by or temporary custody designation should be considered. (See Designation of Temporary or Standby Custodian)
Caution: A Delegation of Powers may be revoked by the parents at any time. It does not prevent the child's parent from removing the child from the caregiver's custody against the caregiver's wishes. Thus, a Delegation of Powers is not appropriate if the caregiver is worried about the child's safety should the parents try to remove the child from his or her home.
4. Is it necessary for both parents to sign the Delegation of Powers?
If the parents of the child are married and living together, both parents need to sign the Delegation of Powers. If the parents are divorced or unmarried, the delegation only needs to be signed by the custodial parent.
The parent who signs the delegation must mail or give a copy of the Delegation of Powers document to any other parent within 30 days of signing the document unless:
- The other parent does not have visitation rights or has supervised visitation rights; or
- There is an existing order for protection against the other parent.
A legally recognized non-custodial parent can always contest a Delegation of Powers unless his or her parental rights have been terminated. Before the non-custodial parent can remove the child from the caregiver's home, he or she must take the necessary steps to invalidate the Delegation of Powers, which would include going to court to get an order of custody.
5. How long does a Delegation of Powers last?
A Delegation of Powers can last no longer than one year. It may be renewed for additional year-long periods. Should a parent or guardian want an arrangement that lasts longer than one year, he or she should consider designating a temporary custodian or entering into a custody consent decree. (See Delegation of Powers by Parent, Guardian, or Legal Custodian)
6. How does a kinship caregiver get a Delegation of Powers? Is a lawyer necessary?
A Delegation must be in writing and signed in front of a notary. The caregiver must also sign the form. A Delegation of Powers should specifically state the powers the parent wishes and does not wish to delegate. It is not necessary to have a lawyer to get a Delegation of Powers. A Delegation of Powers form can be found on MKCA's website at www.mkca.org.
7. What responsibilities does a Delegation of Powers give the caregiver?
By accepting a Delegation of Powers, the caregiver agrees to provide food, clothing, and shelter to the child; protect the child from harm; obtain necessary medical care; enroll the child in school; etc. The caregiver does not become the legal custodian of, or financially responsible for, the child. The child's parents remain financially responsible.
8. How does a Delegation of Powers end?
A Delegation of Powers ends at the expiration of the stated time period or when a parent revokes the Delegation of Powers. A parent may revoke a Delegation of Powers at any time.
1. What is a standby custodian?
A standby custodian is a person designated by a parent or legal custodian of a child (the "designator") to have custody of and be responsible for the child when he or she no longer can care for the child. A designation of a standby custodian can be either temporary for a specific period of time not to exceed 24 months, or it can take effect upon the occurrence of a triggering event, such as the death or incapacity of the designator. A standby custodian will become the permanent legal custodian after the parent or legal custodian's death, if the designation is approved by the court.
2. How can a designation of a standby custodian help caregivers?
It can help in different ways. First, it may help someone become a kinship caregiver. For instance, if a parent has breast cancer or a debilitating terminal illness, arrangements need to be made for the mother's children upon her incapacity or death. By designating the grandmother as the standby custodian, and having that designation approved by the court, the mother can be assured her children will be with the grandmother when she is hospitalized and if she dies.
Second, if a kinship caregiver has legal custody of a child, the kinship caregiver may want to make plans to assure that the child will be safe in the event something happens to her. If she worries that upon her death, custody of the child will go back to a parent who is incapable of taking care of the child (that's why she has the child in her custody in the first place), she can designate another custodian and get that designation approved prior to her incapacity or death.
Third, temporary designation is a good planning tool for parents or legal custodians who are unable to care for their children for a specific period of time. For instance, a parent may need to go overseas for a year for a job, enlist in the armed services, go on active duty, or enter a year¬long treatment program. In such circumstances, the parent or legal custodian can appoint a temporary custodian for a period of up to 24 months.
In these examples, the designation provides parents and legal custodians with the security their children will be cared for in the event they can no longer provide for them. It also provides the caregivers - those designated - with the legal authority to carry out the designator's wishes.
3. Who can designate a standby or temporary custodian?
A parent or other individual with an order of legal custody may designate a standby or temporary custodian.
4. How does a parent or legal custodian designate a temporary or standby custodian?
The designation must be in writing and identify the:
- Other parent;
- Standby or temporary custodian; and
- Triggering event or events upon which the standby or temporary custodian takes over the responsibilities of legal and physical custodian of the child.
It must also include:
- The signed consent of the standby or temporary custodian; and
- The signed consent of the other parent or a statement why the other parent's consent is not required.
The designation must be signed by the designator in the presence of two witnesses. A designation is valid upon the signing of the document by all necessary parties.
5. Does the other parent have to consent to the designation?
If the child has another parent whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to carry out the daily custodial care and make decisions concerning the child, a standby custodian may be designated only if the other parent consents, or the court approves the designation after a hearing. MINN. STAT. § 257B .03.
If the other parent does not consent but the custodial parent or legal custodian believes that parent is unable or unwilling to carry out the daily custodian care of the child, a hearing will be necessary before the designation is approved by the court.
6. When does a standby or temporary custodian's responsibility to the child begin?
A standby or temporary custodian assumes responsibility for the child upon the occurrence of a "triggering event." A triggering event is usually the death or incapacity or debilitation of the designator. The determination of debilitation or incapacity must be made by an attending physician. A triggering event can also be any event specified by the parent or legal custodian, such as notification of active duty status with the military or hospitalization. If the designation has been approved by the court, the appointment is effective until the designator resumes parental responsibilities, which may be never if the designator dies. If the designation has not been approved by the court, the appointment is effective for 60 days after the triggering event and the custodian must take action to make the designation effective for as long as the designator wanted it to last.
7. How is a delegation of standby or temporary custodian approved?
First, the petition must be filed with the court. A petition for approval of a designation may be made at any time by filing a copy of the designation with the court. If the triggering event has not yet occurred, or if the filing is for the purpose of confirmation of a temporary custodian, only the designator may file the petition for approval.
If the triggering event has occurred, the standby custodian may file the petition and it must contain either a determination of the designator's incapacity; a determination of the designator's debilitation and the designator's signed and dated consent; or a copy of the death certificate.
The designation will be approved without a hearing if the designator is the only parent alive, if the parental rights of the other parent have been terminated, or if both parents consent to the designation.
If a hearing is necessary, the court will set a date and time for the hearing. The person who files the petition must serve any person named in the designation and any other current caregiver of the child with a copy of the petition and designation and notice of any hearing within ten days of the filing of the petition.
The court will then hold a hearing on the petition for approval or confirmation. The court will approve the designation if it is in the best interests of the child. The court will presume that the designated person is capable of serving as custodian or co-custodian. If the designator is the sole surviving parent, the parental rights of the other parent have been terminated, or both parents consent to the designation, the court will presume that entry of an order confirming the designation is in the best interests of the children.
8. When must a designator seek approval by the court?
It depends upon the circumstances of each case. The designator can file the designation with the court either before or after the triggering event. The proposed custodian can file only after the occurrence of the triggering event. Be aware that the designation is only valid for 60 days after the occurrence of the triggering event, unless it has been approved by the court. If the standby or temporary custodian does not file for approval within 60 days, the standby or temporary custodian loses all authority to act as custodian or co-custodian.
If the designator anticipates death or debilitation in the near future, it is wise to get the designation approved immediately. That way, the proposed custodian automatically has authority to act as custodian when the triggering event occurs. If the designator dies, the custodian will be appointed guardian in probate court without having to file a separate petition. If the designator anticipates family or friends will disagree with the choice of standby custodian and will try to get custody of the child after the triggering event despite the designator's wishes he or she should seek court approval immediately. That way, the hearing about the custody of the child will take place while the designator is still alive and able to participate.
9. What happens after the designation has been approved by the court? Do the parents lose any rights? MINN. STAT. 257B .06
Once the petition has been approved, the standby or temporary custodian's authority begins automatically upon the occurrence of the triggering event. Parents do not lose their rights by designating a standby or temporary custodian. Parents may retain co-parenting responsibilities by appointing another person to act with them as co-custodians for the times they are debilitated.
10. Can the designation be revoked?
Yes. The method of revocation depends on whether or not the designation has been approved by the court. Prior to the filing of a petition for approval, a designator may revoke the appointment of a standby or temporary custodian by destroying the designation and notifying the standby or temporary custodian. After it has been filed, the designator must revoke it in writing, file the revocation with the court, and notify the standby or temporary custodian in writing of the revocation.
11. What is the difference between a standby custodian designation and a Delegation of Powers?
A Delegation of Powers is valid from the time it is signed for a period of six months. A temporary custodian's responsibilities may be for up to 24 months and a standby custodian's responsibilities begin only upon the occurrence of a triggering event. Further, a Delegation of Powers ceases with the parent's death. A standby custodian designation is valid for 60 days after a triggering event, and if approved by the court, can be permanent, even after death. Finally, while both may be revoked, a Delegation of Powers may be revoked at any time, but once the designation of a temporary or standby custodian is approved by the court, it can be revoked only in a written document filed with the court.
1. What is third-party custody?
Third-party custody is when someone other than a child's parent has court-ordered legal and physical custody of a child. A custodian is the person responsible for the care, control, and maintenance of a child. In Minnesota, a child born to a single mother is presumed to be in the legal custody of her mother. No court order is necessary. Similarly, married couples have custody of a child born to them without needing a court order. An unmarried father's paternity must be established before he has the legal right to seek legal and physical custody of a child.
2. When and why should a caregiver seek custody?
Third parties usually seek legal custody of a child when they need legal authority to obtain medical care, enroll the child in school, or provide the child with a safe, stable, and permanent home. People who have cared for a child in their home for a long period of time usually seek custody in order to have clear, enforceable guidelines regarding arrangements such as where the child is going to live and what sort of visitation the parents may have. They may want to ensure that the parent(s) cannot take the child from their care on a whim, thus disrupting school, other activities, and the child's sense of stability.
Third parties also seek custody when they believe that a child's physical or emotional health is at risk if he or she has to live or remain living with a parent. For instance, if a single mother of a child dies, and the father has had little or no contact with the child (or has a history of abusive behavior, extensive drug and/or alcohol use, etc.), the relatives who have a relationship with the child may believe that the child will be harmed emotionally if she has to leave them to reside with a virtual stranger. The relatives may then take steps to become third party custodians.
A third party can also obtain custody of a child in a CHIPS proceeding when the Juvenile Court has determined that a child cannot return home and a permanent home for the child is necessary. (See Child in Need of Protecting or Services (CHIPS) Proceedings in Juvenile Court.)
3. What law governs third party custody proceedings?
The De Facto Custodian and Interested Third Party law, MINN. STAT. 257C, governs all third party actions for custody and visitation of children in family court. It is a new law that went into effect on August 1, 2002. This law establishes clear requirements for third party custody court proceedings, defines de facto custodians and interested third parties, and sets forth specific burdens of proof and best interest analysis factors to be used at trial. It consolidates prior statutes governing third party actions into one chapter, and reconciles the two doctrines which have framed the discussion concerning custody disputes between a parent and a third party in Minnesota for years. Those doctrines are first, that a parent is entitled to custody of his or her child unless that parent "is unfit or has abandoned [his or her] right to custody or unless there are some extraordinary circumstances which would require [the parent] be deprived of custody," and second, that "the so-called best-interest of the child concept, according to which the welfare and interest of the child is the primary test, is to be applied in awarding custody."7
4. How is the court process started?
In order to get an order of custody, a petition for custody must be filed in the family court in the county in which the child resides or where there has been an earlier order of custody entered. The petition must state:
- The name and address of the person seeking custody (petitioner), the parents, and the children for whom custody is sought;
- The relationship of the petitioner to the child;
- Whether the petitioner is a de facto custodian or an interested third party;
- The current legal custodian of the child;
- All previous orders of custody and whether or not other actions for custody are pending;
- Whether or not the parents should pay child support or have visitation with the child; and
- That it is in the child's best interests to reside with the petitioner.
5. Who is a de facto custodian?
An individual is a de facto custodian if he or she can show by clear and convincing evidence that
- He or she has been the primary caregiver for a child;
- During the two years immediately preceding the filing of a petition for custody, a child resided with an individual for 1) a total period of six months or more if the child is less than three years of age, or 2) a total period of one ear or more if the child is three years of age or older; and
- The parent has refused or neglected to comply with the duties imposed upon the parent by the parent-child relationship, including but not limited to providing the child with necessary food, clothing, shelter, health care, and education, and by creating a nurturing and consistent relationship and exerting other care and control necessary for the child's physical, mental or emotional health and development.
An individual is entitled to a hearing to prove he or she is a de facto custodian.
6. Who is an interested third party?
An individual is an interested third party if he or she can show by clear and convincing evidence that one of the following factors exists:
- The parent has abandoned, neglected or otherwise exhibited disregard for the child's well¬being to the extent that the child will be harmed by living with the parent;
- Placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child or both; or that
- Other extraordinary circumstances exist. An individual is entitled to a hearing to prove that he or she is an Interested Third Party.
7. In third-party custody cases, how does the court determine what is in the best interests of the child?
The court will look at various factors as required by MINN. STAT. § 257C.04. The court can give no preference to a parent over a de facto custodian or an interested third party simply because they are a parent. This law puts long-term caregivers on equal footing with the parents in custody disputes. To determine the best interest of the child, the court will evaluate the following factors, the:
- Wishes of the parties as to custody;
- Reasonable preference of the child, if the court considers the child to be of sufficient age to express preference;
- Identity of the child's primary caretaker;
- Intimacy of the relationship between each party and the child;
- Interaction and interrelationship of the child with a party or parties, siblings, and any other person who may significantly affect the child's best interests;
- Child's adjustment to home, school, and community;
- Length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
- Permanence, as a family unit, of the existing or proposed custodial home;
- Mental and physical health of all individuals involved; except that a disability, as defined in MINN. STAT. § 363.01, Subd. 13, of a proposed custodian or the child must not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child;
- Capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
- Child's cultural background; and
- Effect on the child of the actions of an abuser, related to domestic abuse, as defined in section MINN. STAT. § 518B.01, Subd. 2, that has occurred between the parents or the parties.
The court may not use one factor to the exclusion of all others. The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.
8. What happens after the petition is filed with the court?
The petition, along with a summons, must be personally served upon the child's parents, guardian or legal custodian. If the relative does not know the location of the child's parents, the court may allow the grandparent to give notice by publication in a newspaper.
Once they are served with the summons and petition, the parents have 20 days to file an Answer, a formal written response filed with the court. The parents can either ignore the case, support the grandparent's custody petition, or fight the petition and file an Answer.
9. What happens if the parents do not file an Answer?
If the parents choose to ignore the caregiver's petition, a default judgment will probably be issued. A default judgment is a judgment that is issued against someone who does not appear in court. The effect of a default judgment in a custody matter is usually the awarding of custody to the person who files the petition if the court finds that is in the child's best interests. Even though the other party is in default, the caregiver will have to go to court to provide evidence that the child should be placed in his or her custody.
10. What happens if the parents want to fight the petition?
In a case where the parents contest the petitioner's custody petition, several hearings may be held to determine if the petitioner is a de facto custodian or an interested third party and whether or not it is in the child's best interests to be with the petitioner. Every county has its own process for determining custody matters. At the first hearing, the court will probably decide issues such as temporary custody during the pendency of the court case, the type of visitation the child will have with the party who does not have custody, temporary child support, etc. The court will usually order the petitioner's home and the parents' home to be evaluated. If, after the evaluation is received by the parties and the court, the parties still cannot reach agreement as to custody, a trial will be held. The court will take the recommendation of the evaluator into consideration when making its decision.
After a final hearing, the court will issue an order stating who is to be granted legal custody of the child (legal custody may be sole or joint) and who is to be granted physical custody of the child. The court's order will also address the issues of visitation and child support.
11. What if the parents want to give custody to a relative or another third party?
Parents and third parties, relatives and non-relatives alike, can agree to a custody order if the parents agree that it is in the best interests of the child to be in the care of a de facto custodian or interested third party. If the child's parents support the caregiver's custody petition, no final hearing is necessary.
Further, a parent may transfer legal and physical custody of a child to a third party by a custody consent decree. The custody consent decree must state that the custodian has the ability to determine the child's residence; make decisions regarding the child's education, religious training, and health care; and obtain information and public services on behalf of the child in the same manner as a parent. The consent decree must indicate whether it is temporary or permanent and provide for child support and visitation. The court will approve the custody arrangement if it is in the best interests of the child. This option gives the parties the most flexibility to tailor the custody order to their circumstances.
12. What can a relative caregiver do in an emergency situation?
Often, parents are quite content to allow caregivers to care for their children, as long as the caregiver takes no legal action. This changes, however, once they are served with the summons and petition for custody. Parents may get angry and come to take the child away. Without a temporary order, the caregiver is unable to keep the children from going with the parents. Therefore, it is wise to obtain an emergency temporary order of custody at the same time the petition for custody is filed, if there is any fear that the parents may come to get the child.
The courts have an emergency procedure that allows parties to get emergency orders quickly, so that the child remains where the child has been, or in a safe place, until the story can be sorted out by the court.
13. What about mediation?
Parties in third party custody cases should always consider mediation as a means to solve the custody dispute. A mediator is professionally trained and does not take sides in a case. The mediator will assist the parties to come together and craft a solution that works for everyone. It is a difficult process, but it usually is in a child's best interests if the people in the child's life can work together to create a safe and stable home for the child.
14. How long does third-party custody last?
For all intents and purposes, an order of custody is permanent. Parties can ask the court to modify the custody order after it has been in effect for a year. Getting the court to change custody is not an easy task.
A custody order can be changed if all of the parties agree to the change. If the parties do not agree, the court can change the custody order only if it finds that (1) a change has occurred in the circumstances of the child or the parties, and that (2) the modification is necessary to serve the child's best interests. Generally, if a grandparent has custody of a child the court will not change custody of the child unless the grandparent agrees to the modification, the child is back with his/her parent(s) with the grandparent's consent, or the court finds that living with the grandparent is harmful to the child.
However, child support and visitation orders can be more easily changed. Either the grandparent or the child's parent(s) may seek modification of child support provisions in a number of circumstances including: (1) a change in the grandparent's financial situation, (2) a change in the parents' financial situation, or (3) a change in the child's need or age. The visitation provisions can be changed if modification would be in the child's best interests. In both cases, the person wanting the change must go to court unless the other party agrees to the change.
15. Is a third-party custodian eligible to receive any public assistance for the child?
Yes. A child living in the legal and physical custody of someone other than his or her parents is considered a dependent child and is eligible for MFIP-Child Only benefits. (See Minnesota Investment Program (MFIP)) If the caregiver got the order of custody from juvenile court, the child may be eligible for Relative Custody Assistance, which also includes Medical Assistance. (See Health Insurance Coverage) Once a caregiver obtains custody, the caregiver cannot be that child's foster parent.
16. How is third-party custody different from guardianship or adoption?
A parent's parental rights to a child are not terminated if the child is placed in a third party's custody. The court will require the parents to contribute to the financial support of the child and allow visitation. If the caregiver gets custody, the child will still be the parents' child for purposes of inheritance and social security.
If the child is adopted, the parents' rights have been terminated, and the caregivers become the legal parents of the child. Adoption is covered in the next session.
Custody differs from legal guardianship because in order to get a legal guardianship, the parental rights of both parents or the only living parent must be terminated or both parents must be deceased. Legal guardianship is discussed later, beginning at Appointment of Guardian of Minor in Probate Court.
1. What is adoption?
Adoption is a process by which a court creates the legal relationship of parent and child between people who are not parent and child by birth.
If a caregiver's petition for adoption is granted, the child becomes the legal child of the caregiver, and the caregiver becomes the legal parent of the child with all the rights and duties between them of birth parent and birth child. Even the child's birth certificate is changed to reflect that the caregiver is the parent of the child. By virtue of the adoption, the child has the right to inherit from the caregiver the same as though the child was the birth child of the caregiver. In the case of the child's death without a will, the caregiver will inherit the child's estate as if he or she been the child's birth parent.
After a decree of adoption is entered, the birth parents of the adopted child are relieved of all parental responsibilities for the child, and cannot exercise or have any rights over the adopted child or the child's property. In addition, the child will not inherit from the birth parents or kindred unless the child is adopted by a stepparent who is married to the child's parent.
The adoption of a child whose birth parent(s) are enrolled in an Native American tribe will not change the child's enrollment in that tribe. (See Part III.)
2. Who may adopt? Who may be adopted?
An individual who wants to adopt a child must be 18 years of age or older and a state resident for one year or more. The court may waive the residency requirement if the individual is related to, or a member of, a child's extended family or an important friend with whom the child has resided or had significant contact. The court may reduce the residency requirement to 30 days whenever it appears to be in the child's best interests.
A child or an adult may be adopted, regardless of age. An individual may petition for the adoption of two or more persons in one petition.
3. When is adoption an appropriate alternative?
Adoption of a child is appropriate when the caregiver wants to take complete and permanent responsibility for the child without the threat of legal interference by the child's parents.
Adoption is permanent. Therefore, adoption is not the right option if the caregiver hopes the child will be able to reunite with his or her birth parents some day or if the caregiver feels willing and able to care for the child on only a temporary basis. Also, since adoption cuts off the child's rights to inherit from the birth parent or to receive the birth parent's social security, (unless the birth parent was deceased prior to the adoption) it may not be the wisest option. Finally, adoption may not be the best option for other financial reasons. (See Adoption) A grandparent cannot be forced by the county social service agency to adopt his or her grandchild.
4. Who must consent to the adoption?
The child's parents and/or guardian must consent to the adoption. A guardian who is not the child's parent, including the Department of Human Services or an adoption agency, cannot unreasonably withhold consent to an adoption.
If the birth parent consenting to the adoption is an unmarried minor, that person's parents or guardians must also consent to the adoption. When someone is trying to adopt a child who is 14 years of age or older, the child must also consent in writing to the adoption.
A birth parent's consent is not required if:
- The parent is not entitled to notice of the adoption according to MINN. STAT. § 259.49;
- The parent has abandoned the child or lost custody through a divorce decree or decree of dissolution, provided that the parent is served with notice of the adoption hearing;
- The parent has had the parental rights of the child terminated by a juvenile court or lost custody of the child through a final commitment of the juvenile court or through a decree in a prior adoption proceeding;
- There is no parent or guardian qualified to consent to the adoption, in which case the consent may be given by the Commissioner of Human Services; or
- The Commissioner or the agency having the authority to place a child for adoption has the exclusive right to consent to the adoption of the child.
5. How does a parent or guardian give consent?
All consents must be in writing, executed before two competent witnesses, and acknowledged by the consenting parties. With the exception of step-parent, adult, and agency adoptions, all consents must also be witnessed by an agent of the Commissioner of the Department of Human Services. The consent form must include a statement that the parent's consent may be withdrawn for any reason within ten working days after the consent is executed and acknowledged. In addition, the consent must contain specific language as required by MINN. STAT. § 259.24.
Within the ten working day period, a parent may withdraw consent by providing written notice of the withdrawal of consent to the agency to which the child was surrendered. After that, consent can be withdrawn only if it is shown that the consent was obtained by fraud.
6. What happens if one of the parents will not consent to the adoption?
If one of the parents does not consent to the adoption, the adoption may proceed only if that parent's rights to the child have been terminated. A caregiver can ask the court to terminate the rights of the parent who does not consent. MINN. STAT. § 260C.307. In general, a court will terminate parental rights if the non-consenting parent has abandoned the child, has refused or neglected to comply with the duties imposed upon the parent by virtue of the parent-child relationship, has continually failed to support the child, or is unfit.
7. How does a caregiver start an adoption proceeding?
To start an adoption proceeding, a petition for adoption must be filed in the juvenile court of the county in which the petitioner lives. The proceeding may be transferred to a juvenile court of another county if the grandparent changes residence and the transfer is in the child's best interests. The petition must contain information regarding the petitioner, the child, the birth parents, and must state that it is in the child's best interests to be adopted by the petitioner. The petitioner must file the consents or a statement that a guardian or the Commissioner's consent has been unreasonably withheld. Pre-printed adoption forms may be purchased at a store which carries legal forms or may be obtained from the juvenile court. It is wise to talk to the adoption clerk before filing the petition to ensure that you have all the necessary information. If the child is an Indian child, the Indian Child Welfare Act applies. (See Indian child Welfare Act (ICWA) and the Minnesota Indian Family Preservation Act (MIFPA)) Because adoption is a complex proceeding, an attorney should be consulted.
8. What happens after the petition is filed?
Since the court must make a finding that the adoption is in the child's best interests, an adoption study on the prospective adoptive parents must be completed. Step-parents and relatives do not need an adoption study. The court will do a background check. The court will schedule a hearing once the adoption file is complete. (The court clerk will tell the petitioner when it is complete.)
After the hearing, if the court finds it is in the child's best interests to be adopted by the grandparent, it will enter a decree of adoption, ordering that the child shall be the child of the grandparent. The decree makes the adoption final. The court may change the legal name of the child. On the other hand, if the court is not satisfied that the proposed adoption is in the child's best interests, the court can deny the petition and order the child returned to the custody of the person or agency legally vested with permanent custody of the child, or certify the case for appropriate action and disposition to the court having jurisdiction to determine the custody and guardianship of the child.
9. What public assistance is available after adoption?
Only if a caregiver is financially eligible for benefits will he or she or the child be able to receive Minnesota Family Investment (MFIP), Medical Assistance, food stamps, and other benefits after adoption. If the caregiver was caring for the child before the adoption and was receiving foster care payments, child support payments, or MFIP child-only benefits, these will end with adoption. The family may be eligible for Adoption Assistance. The caregiver must find out if the child is eligible for Adoption Assistance before the adoption is final. (See Adoption Assistance.) In addition, because the caregiver is now the legal parent, the child will be eligible for social security benefits if the caregiver is retired or disabled. (See Supplemental Security Income (SSI).)
10. Can birth parents visit with the children after a decree of adoption is entered?
A caregiver adopting a child may enter a communication agreement regarding communication with, or contact between, the adopted child and the parent. See MINN. STAT. § 259.58. This must be completed at the time the adoption is ordered. Relatives seeking to enforce the terms of an adoption order may do so in family court but failure to comply with terms of a communication agreement is not grounds to set aside the adoption.
If there is no communication agreement, the adoptive parent can set the rules regarding visitation with birth parents, the same as with any non-relative. In other words, visitation may occur as the adoptive parent thinks appropriate.
A caregiver will need to get letters of guardianship instead of third-party custody if both parents are deceased or their parental rights have been terminated.
E. Appointment of Guardian of Minor in Probate Court
MINN. STAT. §§ 524.5-201 - 524.5-210
1. What is a guardianship?
A guardianship is another form of legal custody of a minor child. Although people often use the word guardian to describe anyone who is caring long-term for someone else's child, in Minnesota a person becomes a guardian by acceptance of a testamentary appointment, by parental appointment, by delegation of a standby guardian pursuant to chapter 257B, or upon appointment by the court.
2. What is a testamentary appointment?
A person who is appointed guardian of a child in the last will and testament of the child's parent has a "testamentary appointment." The testamentary appointment becomes effective immediately when the guardian files an acceptance in the court in which the will is probated if both parents are dead or the surviving parent is adjudged incapacitated. In the case where both parents are dead, the testamentary guardian appointed by the parent who died last will be appointed. After the guardian has filed an acceptance, he/she must give written notice within five days to (1) the minor, (2) the person having the minor's care, and (3) the minor's adult siblings, grandparents, aunts and uncles. The notice must inform those persons of their right to file a written objection to the appointment with the court. The appointment is effective unless a written objection has been filed. Then, a hearing must be held to resolve the issue. If no one files an objection, the court will uphold the testamentary appointment.
3. How can a caregiver become the guardian if there was no will?
If there was no testamentary appointment in a will, and both parents are dead, adjudged incapacitated, or have had their parental rights terminated, a person can petition the probate court to become guardian of a child. The petition must include:
- The petitioner's name, address, and telephone number and the petitioner's relationship to the child;
- The minor child's name, address, birth date, and telephone number;
- Whether or not the minor is married;
- The mother and father's name and dates of death or, alternatively, the date the parents' rights were terminated or the fact that the father is unknown;
- Whether or not a standby custody designation was made;
- A statement that the welfare and best interests of the minor will be served by appointing the petitioner guardian of the child;
- The circumstances requiring the appointment and, if appropriate, the nature of the petitioner's relationship to the child, including how long and for what reason the child has been in the petitioner's care; and
- The name, address, and relationship to the child of each person entitled to notice. Notice of the hearing on the petition must be given to:
- The minor if older than fourteen years of age;
The person who has had the principal care and custody of the minor during the sixty days proceeding the date of the petition;
- Any living parent of the minor; and
- The relative nearest in kinship to the minor.
- Any person nominated as guardian by the minor if the minor has attained fourteen years of age;
- Any appointee of a parent whose appointment has not been prevented or terminated
- Any guardian currently acting for the minor in this state or elsewhere
The court will have the proposed guardian's home evaluated and will consider several factors before approving the guardianship including the preference of the child, the relationship between the child and the proposed guardian, the ability of the proposed guardian to provide for the child, and the existence of a family relationship. If no objections are filed and upon hearing the court finds that a qualified person seeks appointment, the court will make the appointment if it serves the best interests of the minor.
4. Who can become a guardian?
The court may appoint any person the guardian of a child if the appointment is in the child's best interests. The court will follow the wishes of a parent as stated in a will if no objections to the appointment are filed. If a child 14 years of age or older chooses a certain person to be appointed, the court must appoint that person unless it finds the appointment contrary to the child's best interests.
A child who is 14 or more years of age or any adult interested in the child's welfare, may prevent an appointment of the testamentary guardian from becoming effective, or may seek termination of a previously accepted appointment by filing a written objection and giving notice of the objection to the guardian and any other persons entitled to notice of the acceptance of the appointment. The written objection must be filed with the court in which the will is probated before the appointment is accepted or within thirty days after it is accepted. An objection does not preclude an appointment of the appointee by the court.
5. What are the rights and responsibilities of a guardian?
The guardian has the rights and responsibilities of a parent to:
- Care for, educate, feed, clothe, shelter, protect, and discipline the child;
- Consent to necessary medical, dental, psychological and surgical care for the child;
- Provide routine medical, dental, and psychological care for the child; and
- Consent to social and school activities of the child;
A guardian cannot give consent for psycho surgery, electroshock, sterilization or experimental treatment of any kind unless the procedure is first approved by the court.
The court will usually order the guardian to report the condition of the child and to give the court a written accounting regarding the child's money, benefits and property.
6. What is a guardian's financial responsibility to the child?
The guardian is not legally obligated to provide from his or her own funds for the child. The guardian may apply for MFIP child-only benefits on behalf of the child, and the child is considered a dependent child for purposes of a family MFIP grant. (See Minnesota Family Investment Program.)
7. How long does a guardianship last?
The guardianship terminates automatically upon the death, marriage, or attainment of majority of the child. In all other cases, the guardian's responsibility and authority continues, even if the child leaves the guardian's home to live with someone else, until the court terminates the guardianship.
A guardian must petition the court for permission to resign. Resignation does not terminate the guardianship until it has been approved by the court. Any person interested in the welfare of the child or the child, if 14 or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interests of the child. The petition may, but need not, include a request for appointment of a successor guardian. Termination of the guardianship does not affect the guardian's liability for prior acts, nor the obligation to account for the funds and assets of the child.
Furthermore, the guardianship terminates upon the court's order. A ward or an interested person may petition for any order that is in the best interest of the child. The petitioner has to give notice of the hearing on the petition to interested persons and as ordered by the court.
8. Who should consider making a testamentary appointment?
A testamentary appointment is made in a last will and testament. Everyone, particularly parents with serious illnesses such as HIV/AIDS are urged to make a testamentary appointment.
A kinship caregiver who has serious health problems should also consider executing a will and naming a testamentary guardian to care for the children in his or her care. While a testamentary appointment is always subject to the court's approval, the testamentary guardian can be appointed immediately after death and care for the child during the court proceeding. However, if a parent whose parental rights have not been terminated is still alive and that parent wants custody of the child, probate court cannot appoint a guardian. Either a designation of standby custodian must be used, or custody must be determined in family court. A grandparent who is named as a guardian in a will or who wishes to petition the probate court to be appointed guardian of a child should contact an attorney.
F. Child in Need of Protection and Services (CHIPS) Proceedings in Juvenile Court
MINN. STAT. § 260C
Generally, the government does not interfere in family matters. However, the law does allow the county to take action to protect a child from harm within the family. One action the county may take is to file a Child in Need of Protection or Services (CHIPS) petition in juvenile court.
a. How does the law define a child in need of protection or services? The law defines child in need of protection or services as a child who:
- Is abandoned or without a parent, guardian, or custodian;
- Has been a victim of physical or sexual abuse or lives with a victim or perpetrator of domestic child abuse or is a victim of emotional maltreatment;
- Is without necessary food, clothing, shelter, education, or other required care for the child's physical or mental health or morals because the child's parent, guardian, or custodian is unable or unwilling to provide that care;
- Is without special care made necessary by a physical, mental, or emotional condition because the child's parent, guardian, or custodian is unable or unwilling to provide that care;
- Is medically neglected;
- Is one whose parent, guardian, or custodian for good cause wishes to be relieved of the child's care and custody;
- Has been placed for adoption or care in violation of law;
- Is without proper parental care because of the emotional, mental, or physical disability or state of immaturity of the child's parent, guardian or custodian;
- Is one whose behavior, condition, or environment is injurious or dangerous to the child or others;
- Is experiencing growth delays, which may be referred to as failure to thrive, due to parental neglect;
- Has engaged in prostitution;
- Has committed a delinquent act or juvenile petty offense before becoming ten years old;
- Is a runaway;
- Is a habitual truant;
- Has been found incompetent to proceed or has been found not guilty by reason of mental illness or mental deficiency in connection with a delinquency matter or a juvenile petty offense.
b. How do these children come to the county's attention?
The law requires that the county social services agency (also referred to here as "child protection" or "the county agency") accept reports of child maltreatment. Some individuals who work with children and families are required to make a maltreatment report if they have reason to believe a child has been neglected or physically or sexually abused. These individuals include, for instance, teachers, doctors, and social workers. Anyone else may make a report if they know of or suspect maltreatment. (MINN. STAT. § 626.556).
People who are not mandated to report may report abuse or neglect to the county agency. For instance, if a grandparent suspects that a grandchild is being abused or neglected, or is otherwise in danger, the grandparent can call the county social services office and make a report. If it is after hours or on weekends, the report can be made to the police. Child protection may conduct an investigation to determine whether or not maltreatment has occurred. The county agency will also determine whether the child needs protective services. If the county agency determines that the child needs protection and the parent is unable or unwilling to accept services voluntarily, the county may start a CHIPS proceeding. Many counties have adopted a program called Family Assessment to deal with child maltreatment reports. In those counties, when the child protection agency receives a report of maltreatment, it will initially screen the report to determine whether to do a traditional investigation or a family assessment. If the county
determines the case would be appropriate for family assessment, and the family agrees to use that approach, the county will assess the family's needs and strengths and work with the family to develop a plan to enhance the strengths and respond to the needs. In these Family Assessment cases, the county will not make a determination of maltreatment.
c. When can the child be taken away from the parents?
If the county agency believes that the child is in danger, it may go to court to get an emergency order to take the child into custody and place the child in temporary foster care. Law enforcement officers may take a child into custody without a court order if they determine that a child is in surroundings or conditions which endanger the child's health or welfare.
d. Who can start a CHIPS proceeding?
CHIPS proceedings are usually started by the county agency. However, if the county agency declines to provide adequate services for a child, any responsible person may start a CHIPS proceeding by filing a private CHIPS petition asking the judge to order that the county provide services. Private CHIPS petition forms are available at the district courthouse in each county. The CHIPS petition must include a statement of facts showing that the child fits at least one of the definitions of a child in need of protection or services listed in the Child In Need Protection or Services (CHIPS) Proceedings in Juvenile Court chapter above. The person will not be allowed to file the petition unless she, or someone else acting on the child's behalf, has asked the county for services to protect the child and the county has failed to provide adequate services. A grandparent should contact an attorney for assistance before filing a CHIPS petition.
The attorney can explain the risks and benefits of court involvement.
e. Who are the parties in a CHIPS proceeding? What does it mean to be a party? (Rule 21, Rules of Juvenile Procedure.)8
Generally, parties include:
- The child's guardian ad litem;
- The child's legal custodian;
- In the case of an Indian child, the child's Indian custodian and Indian tribe through the tribal representative;
- The petitioner;
- Any person who intervenes or is joined as a party; and
- And any other person the court determines is important to a resolution in the best interests of the child.
In CHIPS actions alleging that a child is habitually truant, a runaway, or engaged in prostitution, the child is also a party.
Parties have the right to receive notice, be present at hearings, bring motions, participate in settlement agreements, present evidence, request review of disposition orders, appeal from court orders and otherwise take part in the court proceedings.
f. Who else may participate in Chips proceedings? (Rule 22, Rules of Juvenile Procedure)
- The child;
- Noncustodial parents;
- Alleged, adjudicated, or presumed fathers;
- The local social services agency in cases where it is not the petitioner;
- Grandparents with whom the child has lived within the two years preceding filing of the petition;
- Relatives providing care for the child and other relatives who request notice;
- Current foster parents and persons proposed as long-term foster care parents;
- The spouse of the child; and
- Any other person deemed by the court to be important to a resolution.
Generally, participants may receive notice, attend hearings and offer information at the discretion of the court. The court must permit foster parents, pre-adoptive parents, relatives providing care for the child or relatives to whom the local social services agency recommends transfer of permanent legal and physical custody of the child to be heard in any hearing involving the child.
g. May a participant become a party?
Some participants have the right to intervene as parties. They include:
- The child;
- Grandparents if the child has lived with the grandparent within the two years preceding the filing of the petition;
- Any parent who is not a legal custodian of the child; and
- The local social services agency in cases where it is not the petitioner.
These participants may intervene by serving a notice of intervention on all parties and the county attorney. If no one files an objection, the intervention is accomplished as of the date of service. If there is an objection, the court will hold a hearing to determine whether the participant has the right to intervene.
Other participants may intervene if permitted by the court. They may make the request by filing with the court and serving on the parties and the county attorney a notice of motion and motion to intervene. The court may allow intervention if it will serve the best interests of the child.
h. What happens during a CHIPS proceeding?
A CHIPS proceeding involves a number of hearings in juvenile court. These hearings used to be closed to everyone except the parties. However, these hearings are now open to the public.
At the hearings, the child and the child's parent or legal guardian have the right to be represented by a lawyer. The court will appoint a lawyer free of charge for financially eligible parents and legal guardians.
The court may also appoint a lawyer for the child, depending on the child's age. Practice varies around the state. Some counties appoint a lawyer for every child, some require that the child be at least 10 years old.
The court must appoint a guardian ad litem for the child. The guardian ad litem's role is to advocate for the child's best interests. When the child's wishes conflict with the guardian ad litem's recommendation, an attorney should be appointed for the child.
Under federal law, additional rules apply to Native American children in CHIPS cases. (See Part IV below.)
i. What happens at the first hearing?
If the child is removed from home, a hearing must be held within 72 hours of the removal. At that hearing the court decides whether the child will remain in out of home care or whether services are available which would make it possible for the child to be safe living at home. The court will also appoint lawyers for the parent and child if they are eligible and a guardian ad litem for the child. The parent and/or the child may also be asked to admit or deny the statements in the CHIPS petition.
If the court orders that the child remain in out-of-home placement, the court must decide:
- Where the child will be placed;
- Whether the parents or others should be allowed to visit the child;
- If social services are needed by the parents and/or the child; and
- If medical, mental health, or drug/alcohol evaluations should be ordered.
If the child is to remain out of the parents' home, the child is entitled to foster care payments and services. (See Public Assistance Programs) The child must be placed in a licensed foster home. Relatives may be licensed as foster parents and the children may be placed with relatives immediately pending licensing. (See Licensing) If the child is not placed with a grandparent or other relative, the court must set reasonable visitation with the grandparent and other relatives if such visitation is consistent with the child's best interests. (MINN. STAT. § 260C.201, Subdiv. 5.)
j. Will there be a trial?
There will be a trial if the parent (or the child when appropriate) denies that the child needs protection or services. The court may schedule a pre-trial conference. This gives the parties, including the county agency, a chance to see if they agree on whether the child needs protection or services. If the parties cannot agree, the court will hold a trial to determine whether the allegations of the CHIPS petition are proved.
k. How will the Judge decide what services the family needs?
If the parties agree the child needs protection or services, or the court finds after a trial the child is in need of protection or services, the court will hold a disposition hearing to determine what services are needed by the parents and the child.
That hearing may be held at the same time as the trial, or scheduled for another day. At the disposition hearing, the court will determine, among other things, whether the child should live at home. The court will also review, modify, and adopt a case plan which has been prepared by the county worker, the parents, the guardian ad litem and the child, if the child is old enough to understand. The case plan must discuss the child's and family's need for care, rehabilitation, and services; describe the services needed to prevent out-of-home placement or safely reunify the child and parents; address visitation rights and obligations of parents or other relatives, and specify the actions to be taken by the parent, the social worker and/or the child to comply with the case plan and the disposition order. (MINN. STAT. § 260C.201, Subdiv. 6.)
1. Is the disposition hearing the end of the case?
No. Any out-of-home placement ordered by the Court must be reviewed at least every 90 days to determine whether continued out-of-home placement is necessary and appropriate or whether the child should be returned home. When the child remains at home, the case must be reviewed at least every six months from the date of placement. Any party may schedule a disposition review hearing if the child's needs or circumstances change.
A permanent placement hearing must be held when a child remains in out-of-home care. See Permanent Placement Decisions in CHIPS Actions for more information about permanency decisions.
m. How can relatives have input in decisions made about the child?
Grandparents may intervene in the proceedings and participate to the same extent as a parent if the child lived with them during the two years before the filing of the CHIPS petition. In unusual circumstances, the court may allow other relatives to intervene. (See Who Else May Participate in CHIPS Proceedings) Even if the grandparent or other relatives do not formally intervene, they have the right to ask to be notified of the hearings, to attend the hearings and to offer information to the judge.
The child's guardian ad litem must make an independent investigation of the child's circumstances and make recommendations to the court based on an assessment of the child's best interests. Relatives should make their views known to the guardian ad litem.
Relatives should also contact the county agency if they want the child to live with them or if they want to visit and maintain contact with the child. The law requires that relatives be considered as the first foster care placement resource. Relatives should make their availability and interest known to the assigned social worker.
Foster care benefits are available for a child only if the child cannot live in his or her parents' home and is placed in a foster care home, either by an agreement between the parent(s) and the county agency or by a juvenile court order. The county agency or juvenile court may only place a child in a relative's home if that relative is licensed as a foster parent or agrees to obtain an emergency license. This section discusses whether and when a "relative placement" has occurred that allows the relative to receive foster care benefits on behalf of the child.
b. What is the purpose of foster care services?
Foster care provides substitute care for a child while an intensive effort is made to correct or improve the conditions causing placement and to reunite the family or, if the child cannot be returned home, to provide some other permanent plan. Foster care maintenance payments are made to the licensed person providing the foster care services.
c. When is a child eligible for foster care?
A child is eligible for foster care when he or she has been placed away from his or her parents. A child may be placed in one of two ways: by a Voluntary Placement Agreement (VPA), which is a signed agreement between the parent(s) and the county agency; or by order of the juvenile court.
If a child is already living with a relative, and the county agency obtains a court order granting the county custody of the child and leaves the child with the relative, the county agency has made a relative foster care placement. The child is eligible for foster care as of that date.
d. How can a relative request foster are services for a child if child protection is not involved with the family?
If a relative is currently caring for a child because the child's parent is unable or unwilling to care for the child, the relative may contact the county to request services for the child. The county should consider the request a child protection report. That means that the county will evaluate whether or not the child could safely return to his/her parents. If the child cannot live with the parents, the county may enter into a VPA with the parents or go to court to seek an order placing the child away from the parents.
If someone who is not caring for a child knows the child is being abused or neglected, that person can make a child protection report. The agency will conduct the evaluation described above.
If the agency fails to take action to protect the child, a private CHIPS action can be filed to request that foster care services be given to the child and if appropriate, that the child be placed with a relative as a foster care provider.
e. If child protection gets involved, can a relative be sure that the child will be placed in that relative's home?
No. The relative may serve as a foster parent if he or she is licensable and the county agency or the court determines the placement is in the child's best interests. The law provides that extended family members are the preferred foster parents. However, if no relative is licensable or if the county determines placement with a relative is not in the child's best interests, it can recommend placement elsewhere. Then the court decides what is best for the child.
When the county social services agency or the court is involved in determining what is best for a child, the family loses decision-making authority. Before a relative files a private CHIPS petition, he or she should get legal advice concerning the risks and advantages.
f. How can a relative request that a child be placed in his or her care if the child is already in foster care placement?
If the child is already in placement, the relative should contact the child's county agency case worker and request that the child be placed in his or her home. A relative does not need a lawyer to do this unless the county agency is unwilling to place the child with the relative and the relative wants to fight for the placement. In this case, the relative should apply to become a licensed foster care provider and obtain the services of an attorney to obtain a hearing before the juvenile court regarding placement.
g. How can a relative become a licensed foster care provider?
I. Emergency Licensing (MINN. STAT. 245A.035)
Before a child can be placed with a relative, the relative must be licensed or must be willing to get an emergency license. A county may place a child with a relative who is not licensed to provide foster care if the following requirements for emergency licensing are met:
- The county agency must conduct an initial inspection of the home where the foster care is to be provided to ensure the health and safety of any child placed in the home. The county agency shall conduct the inspection using a form developed by the Commissioner of Human Services. The initial inspection must be conducted, whenever possible, prior to placing the child in the relative's home, but no later than three working days after placing the child in the home;
- At the time of the inspection or placement, whichever is earlier, the relative being considered for an emergency license shall receive an application form for a foster care license; and
- Whenever possible, prior to placing the child in the relative's home, the relative being considered for an emergency license shall provide information required for the background study.
The child will be removed from the home if the relative fails to cooperate with the county agency in securing the foster care license. The emergency license holder must complete the foster care license application and paperwork within ten days of the placement and the agency must assist the license holder in completing the application.
If the Commissioner denies an application for an emergency foster care license, the relative may request that the Commissioner review the denial. No further appeal is allowed, and the child may not remain with the relative during the course of the Commissioner's review.
Whether or not an emergency license has been granted, the following steps must occur for the relative to become a licensed foster care provider:
- The relative must contact the county agency and request a license application;
- The relative must complete and return the application to the county agency;
- The agency must complete a background study of the applicant and any person over the age of 13 living in the applicant's household, and a safety inspection of the home;
- The agency will ask for references, doctor statements and school reports on the children;
- A licensing worker will be assigned to work with the applicant; and
- The foster parents must participate in annual training.
The licensing process takes at least 90 days and the Minnesota Department of Human Services will determine whether to grant a license. If the application is denied, the applicant has the right to appeal. The written denial notice must be sent by certified mail. If the applicant wants to appeal the denial, he/she must send a written request for appeal to the Commissioner of Human Services by certified mail within 20 calendar days after receiving notice that the application was denied. If the appeal is not on time, it will be denied.
h. Can the county place my grandchild with a relative who is not willing or able to be licensed?
No. The county must place a child in a licensed home whenever the county has responsibility for that child.
i. What are the responsibilities of a relative foster care provider?
The foster care provider has a duty to provide for the day-to-day care of the child. The provider must also cooperate with the goals of the placement plan. The goals of foster care services are to correct the circumstances that led to placement, and to reunify the child and the parents if the child will be safe in their care and if reunification is in the best interests of the child.
The county agency will have general authority over the care of the child in placement. The placement plan will specify decisions that will be made by the county agency and decisions that require consent of the parent or the court. If the matter is in court, the court has ultimate decision-making power over the child. This includes authority to return the child to the parents or to move the child to another home. The court may order the agency to arrange visits for the parents, therapy for the child, and other services that the child needs. The relative foster parent must comply with the court orders and ensure that the child is made available for appointments and for visitation with the parents.
j. How long does a court-ordered placement last?
A placement lasts until the court determines that the child's parents are able to care for the child or that some other permanent plan is best for the child. (See Section 3, below.)
k. Can a relative be sure the child will remain with her/him?
No. The goal of foster care is to reunite the child with his or her parent(s). If the court finds the parents are able and willing to meet the child's needs, it will order the child returned to the parents. The county agency or the court may decide that it is in the child's best interests to live with someone other than the relative. In making a decision to move a child, the court must consider the relationship developed by the relative caregiver with the child. The foster care provider does not have a legal right to the child.
l. Can a relative receive foster care benefits for the child after the relative has obtained an order for custody of the child?
No. Once legal custody of the child is transferred to the relative, the child is no longer eligible for foster care benefits. However, the relative may be eligible to receive MFIP and relative custody assistance (RCA.) RCA supplements MFIP. (See Public Assistance Programs for details of those programs.)
3. Permanent Placement Decisions in CHIPS Actions (MINN. STAT. § 260C.201, Subd. 11)
a. In General
If a child remains in foster care, the court must conduct a hearing to determine where the child will live on a permanent basis. These hearings differ, depending on the age of the child. For children eight years of age or older, the court must hold the hearing no later than 12 months after the child has been placed away from the parents' home. If the child is not returned home, the court must order one of the following: transfer of physical and legal custody to a relative; termination of parental rights; long term foster care; foster care for a specified period of time; or transfer of custody and legal guardianship to the Commissioner of the Department of Human Services.
For children who were under eight years of age at the time the CHIPS petition was filed, the court must hold a hearing no later than six months after the child's placement to review the parents' progress on the case plan. If the court determines that the parent is complying with the terms of the case plan, maintaining contact with the child, and that the child would benefit from reunification, the court may return the child to the care of the parents or continue the matter for six months. If the court determines that the parent is not making progress on the case plan and is not visiting the child according to the terms of the case plan, the court may order the county agency to file a petition to transfer permanent legal and physical custody to a relative or to terminate parental rights. (MINN. STAT. § 260C.201, Subd. 11a.)
b. When will the court transfer permanent legal and physical custody to a relative?
The juvenile court may transfer permanent legal and physical custody to a relative if such an outcome is in the child's best interests. The court does not need to terminate parental rights in order to transfer custody. The juvenile court will use the same standards that family court uses in determining the best interests of the child.
The county agency may bring a petition naming a fit and willing relative as a proposed custodian, but the county attorney does not represent the relative in connection with this proceeding. Proposed custodians must be given information about their legal rights and obligations as custodians, together with information on financial and medical benefits for which the child is eligible. For instance, the child will no longer be eligible for foster payments once a caregiver has been awarded custody.
A relative may bring a custody petition on his or her own behalf, if the county agency is not recommending him or her as a permanent placement resource.9 If any party in the CHIPS action objects to transfer of legal and physical custody to that relative, it is unlikely the relative will prevail. If the parties approve of the proposed custodian the relative may then negotiate a plan to get an order transferring custody.
The juvenile court may maintain jurisdiction over the case after the transfer of custody to ensure that the custodian and the child receive appropriate services.
The order for permanent legal and physical custody of a child may be changed in the same way as custody orders in family court. (See Third-Party Custody of Children in Family Court) When the juvenile court has transferred custody, the county agency must be notified of any proceeding for modification of the custody order.
c. What is involved in the termination of parental rights?
The result of some CHIPS cases is that the child is placed for adoption. In order to place a child for adoption the court must first terminate the parents' rights to the child. A petition for Termination of Parental Rights is usually filed by the county agency. The parents may consent to terminate their parental rights. If they do not consent, the court will conduct a trial. If the petition is granted, guardianship is usually awarded to DHS and the agency will seek an adoptive placement for the child.
The juvenile court can also transfer guardianship and legal custody to a licensed child-placing agency or an adult over 21 years of age who is willing and capable of assuming the appropriate duties and responsibilities to the child. If the child is an Indian child, the child's tribe can be appointed as the child's guardian. (See Indian Child Welfare Act (ICWA) and the Minnesota Indian Family Preservation Act (MIFPA))
A relative can file an adoption petition even if the Commissioner or a licensed child-placing agency refuses to consent or supports someone else as the adoptive parent. It is difficult, but not impossible, for a relative to adopt the child if the Commissioner objects to the relative's petition. If a caregiver adopts a child he or she may be eligible for federally-funded Adoption Assistance through the Department of Human Services. (See Adoption Assistance.)
Adoption Assistance is a cash payment available for special needs children on an ongoing basis after the adoption. The caregiver should look into Adoption Assistance before finalizing the adoption since an adoption assistance agreement must be entered into before the adoption occurs.
d. What about long-term foster care?
The preferred permanent placements of a child are transfer of legal and physical custody to a relative or termination of parental rights and adoption. The court may order a child into long-term foster care only if the court approves the agency's determination that for "compelling reasons" neither an award of legal and physical custody to a relative, nor termination of parental rights is in the child's best interests. Generally, the court may only order long-term foster care if the child has reached 12 years of age and reasonable efforts by the county agency have failed to locate an adoptive family for the child. However, if a child under 12 years of age has a significant relationship with a sibling over the 12 years of age, and they are going to be living in the same foster home, the court may order long-term foster care for both children.
If a child remains in foster care, within six months of the child's eighteenth birthday, the agency must notify the child and the child's parents or guardian and the foster parents of the availability of foster care benefits up to 21 years of age. Upon the request of a child in foster care, the agency shall develop with the child a specific plan related to that child's needs and shall assure that any maintenance or counseling benefits are tied to the plan. If the child disagrees with the agency's proposed plan, the child may appeal.
An order for long-term foster care is reviewable upon motion to the juvenile court. To regain custody, the parent must show a substantial change in the parent's circumstances such that the parent could provide appropriate care for the child and that return of the child to the parent's care would be in the best interests of the child.
e. When will the court order foster care for a specified period of time?
The court may only order foster care for a specified of time if it is in the child's best interests and there are compelling reasons that neither transfer of legal and physical custody to a relative nor termination of parental rights is in the child's best interests.
This permanency option is only available when the sole basis for finding the child in need of protection or services is the child's behavior. The period of foster care cannot exceed 12 months.
f. When will the court order guardianship and legal custody to the Commissioner of Human Services?
The court may order this option when there is an identified prospective adoptive home that has agreed to adopt and the court has accepted the parent's voluntary consent to adopt.