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STATE OF MINNESOTAIN SUPREME COURTC1-01-927OFFICE OFAPPELLATE COUm FEB 9.32009ORDER FOR HEARING AND ESTABLISHINGDEADLINE FOR SUBMITTING COMMENTSREGARDING PROPOSED AMENDMENTS TO THERULES OF JUVENILE PROTECTION PROCEDUREAND RULES OF ADOPTION PROCEDUREThe Advisory Committee on the Rules of Juvenile Protection Procedure filed withthis Court on February 6,2009, a report recommending proposed amendments to theRules of Juvenile Protection Procedure and Rules of Adoption Procedure. A copy of thereport is annexed to this order.NOW, THEREFORE, IT IS HEREBY ORDERED that a hearing be held beforethis Court on Wednesday, April 15,2009, at 2:00 p.m., in Coumooln 300 of theMinnesota Supreme Court, Minnesota Judicial Center, to consider the Committee'srecomnlendations.IT IS FURTHER ORDERED that:1. All persons desiring to provide written statements in support of or opposition to theproposed changes, but who do not wish to make an oral presentation at the hearing,shall submit 12 copies of suc11 statement in writing addressed to Frederick K.Grittner, Clerk of the Appellate Courts, 305 Minnesota Judicial Center, 25 Rev. Dr.Martin Luther King, Jr. Boulevard, St. Paul, Minnesota 55155, no later than Friday,April 3, 2009; and
2. All persons desiring to make an oral presentation at the hearing shall submit a writtenrequest to make an oral presentation along with 12 copies of the statement to bepresented addressed to Frederick K. Grittner, Clerk of the Appellate Courts, 305Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King, Jr. Boulevard, St. Paul,Minnesota 55155, no later than Friday, April 3,2009.Dated: February a 2 0 0 9BY THE COURT:
OFFICE OFAPPELLATE COURTSFEB 6 2009FILEDMinnesota Supreme Court File No: C1-01-927REPORT AND PROPOSED RULES AMENDMENTSSUBMITTED BYJUVENILE PROTECTION RULES COMMITTEETOMINNESOTA SUPREME COURTFebruary 6, 2009MINNESOTA JUDICIAL BRANCHSTATE COURT ADMINISTRATOR’S OFFICECOURT SERVICES DIVISION105 MINNESOTA JUDICIAL CENTER25 REV. DR. MARTIN LUTHER KING JR. BLVD.ST. PAUL, MN 55155651-297-7587
TABLE OF CONTENTSPageINTRODUCTION .3Committee Members .3Full Committee .3ICWA Subcommittee .4Expedited Appeals Subcommittee .4Committee Purpose and Charge.5Committee Procedures .5Subcommittees: Purpose and Procedures .6ICWA Subcommittee .6Expedited Appeals Subcommittee .6Overview of Recommendations .8Proposed Amendments to Juvenile Protection Rules – ICWA Procedures .8Proposed Amendments to Juvenile Protection Rules – Expedited Post-TrialMotion and Appellate Procedures .8Proposed Amendments to Juvenile Protection Rules – Resulting fromStatutory Revisions .8Proposed Amendments to Juvenile Protection Rules – from 2007 RulesCommittee .8Proposed Amendments to Adoption Rules .9Recommendations for Proposed Statutory Revisions .9Recommendation for Public Hearing Regarding Proposed Amendments .11Recommendations Regarding Future Work of the Committee.11PROPOSED AMENDMENTS – JUVENILE PROTECTION RULES .12Rule 2:Definitions.12Rule 3:Applicability of Other Rules and Statutes .16Rule 4:Time; Timeline.16Rule 6:Scheduling Order .20Rule 7:Referees and Judges .21Rule 8:Accessibility of Juvenile Protection Case Records .22Rule 10: Orders .23Rule 15: Motions .24Rule 21: Parties.26Rule 25: Right to Representation; Appointment of Counsel .27Rule 30: Emergency Protective Care Hearing .29Rule 32: Summons and Notice .32Rule 33: Petition .35Rule 34: Admit/Deny Hearing .36Rule 36: Pretrial Hearing .38Report and Proposed Rules AmendmentsPage 1
TABLE OF CONTENTSRule 37:Rule 39:Rule 42:Rule 43:Rule 44:Rule 45:Rule 46:Rule 47:Rule 48:Rule 49:Case Plans and Out-of-Home Placement Plans .40Trial .42Permanent Placement and Termination of Parental Rights Mattersand Post-Permanency Review Requirements .46Review of Children in Voluntary Foster Care for Treatment .67Review of Voluntary Placement Matters .76Post-Trial Motions .82Relief from Order .83Appeal .87Transfer of Jurisdiction to Indian Tribe .90Qualified Expert Witness Requirement Under the Indian Child Welfare Act .95PROPOSED AMENDMENTS – ADOPTION RULES .97Rule 6:Referees and Judges .97Rule 10: Orders .97Rule 29: Direct Placement Adoption .98Rule 33: Consent to Adopt .98Rule 34: Communication or Contact Agreement .99Rule 37: Adoption Study and Background Study .100Rule 38: Post-Placement Assessment Report .101Rule 43: Pretrial Conference in Contested Matters .102Rule 44: Trial in Contested Matters .102Rule 47: Relief from Order .103APPENDICES .104Appendix A: “At a Glance: Minnesota‟s Existing TPR and Appellate Processesand Proposed Revised Processes” .104Appendix B: “At a Glance: Nationally Recommended Best Practices” .105Appendix C: “Detailed Comparison: “Minnesota‟s Existing Rules and PracticesCompared With Proposed Amendments to Rules and Practices” . 106Appendix D: “Background: Child and Family Services Review (CFSR)” .110Report and Proposed Rules AmendmentsPage 2
INTRODUCTIONCOMMITTEE MEMBERSHIPChairHon. Kevin Eide, District Court Judge, Carver CountyMembersJody Alholinna, Attorney, El-Ghazzawy Law Office, MinneapolisSharon Benson, Attorney, Benson Law Office, St. CloudGayle Borchert, Assistant Stearns County AttorneyHon. Susan Burke, District Court Judge, Hennepin CountyHon. Janet Barke Cain, District Court Judge, Carver CountyGail Clapp, Juvenile Court Operations Manager, Hennepin CountyHeidi Drobnick, Attorney, Swanson, Drobnick, & Tousey, WoodburyTeresa Fredrickson, Court Administrator, Kandiyohi and Meeker CountiesJulie Friedrich, Guardian Ad Litem and Attorney, WoodburyShari Larson, Attorney, Larson Law Office, McGregorShireen Lee, 6th District GAL Program Coordinator, Carlton and St. Louis CountiesJessica Maher, Attorney, Walling, Berg, & Debele, MinneapolisHon. John McBride, District Court Judge, Chisago CountyRhonda Morehead, Child Protection Worker, Waseca CountyErin O‟Brien, Assistant Freeborn County AttorneyBonnie Risius, Social Services Supervisor, Faribault and Martin CountiesHon. Wally Senyk, District Court Judge, Otter Tail CountyHon. John Solien, District Court Judge, Aitkin CountyHon. Mark Starr, District Court Judge, St. Louis CountyJonathan Steinberg, Attorney and MSBA Representative, Chrastil and Steinberg, MinneapolisHon. Terri Stoneburner, Appellate Court Judge, Minnesota Court of AppealsErin Sullivan Sutton, Director, Child Safety and Permanency, Minn. Dept. of Human ServicesDiana Sweeney, Assistant Public Defender, 9th Judicial DistrictStaff AttorneysJudith Nord, Staff Attorney, State Court Administrator‟s OfficeAnn Ahlstrom, Staff Attorney, State Court Administrator‟s OfficeReport and Proposed Rules AmendmentsPage 3
INTRODUCTIONEXPEDITED APPEALS SUBCOMMITTEEChairHon. Kevin Eide, District Court Judge, Carver CountyMembersSharon Benson, Attorney, Benson Law Office, St. CloudHon. Janet Barke Cain, District Court Judge, Carver CountyGail Clapp, Juvenile Court Operations Manager, Hennepin CountyMark Fiddler, Attorney, Fiddler Law Office, MinneapolisJulie Friedrich, Guardian Ad Litem and Attorney, WoodburyCheryl Grundseth, Court Reporter, Pope CountyPeter Gorman, Public Defender, 4th District Public Defender‟s OfficeBruce Jones, Attorney, Faegre & Benson, MinneapolisCynthia Lehr, Chief Staff Attorney, Minnesota Court of AppealsMary Lynch, Assistant County Attorney, Hennepin CountyJessica Maher, Attorney, Walling, Berg, & Debele, MinneapolisBonnie Risius, Child Protection Supervisor, Faribault & Martin Human ServicesHon. Terri Stoneburner, Appellate Court Judge, Minnesota Court of AppealsNancy Wiltgen, Attorney, Leonard, Street and Deinard, MinneapolisICWA SUBCOMMITTEEChairHon. Wally Senyk, District Court Judge, Otter Tail CountyMembersHon. Susan Burke, District Court Judge, Hennepin CountyHeidi Drobnick, Attorney, Swanson, Drobnick, & Tousey, WoodburyHon. Anita Fineday, Tribal Court Judge, White Earth Band of ChippewaTeresa Fredrickson, Court Administrator, Kandiyohi and Meeker CountiesPeter Gorman, Assistant Public Defender, 4th District Public Defender‟s OfficeShireen Lee, 6th District GAL Program Coordinator, Carlton and St. Louis CountiesHon. Herbert Lefler, District Court Judge, Hennepin CountyEsie Leoso, ICWA Child Protection Supervisor, Hennepin County Human ServicesJanine LePage, Assistant County Attorney, Crow Wing County Attorney‟s OfficeKim Mammedaty, Tribal Attorney, Leech Lake Band of OjibweJoyce Miyamoto, Assistant County Attorney, Hennepin County Attorney‟s OfficeMary Potter, Children‟s Services Supervisor, Yellow Medicine Family ServicesJessica Ryan, Attorney, BlueDog, Paulson & Small, P.L.L.P. MinneapolisAndrew Small, Attorney, BlueDog, Paulson & Small, P.L.L.P. MinneapolisShannon Smith, Director, ICWA Law Center, MinneapolisHon. John Solien, District Court Judge, Aitkin CountyHon. Robert Walker, District Court Judge, Martin CountyReport and Proposed Rules AmendmentsPage 4
INTRODUCTIONCOMMITTEE PURPOSE AND CHARGEThe Rules of Juvenile Protection Procedure were promulgated by the Minnesota Supreme Courton December 29, 1999, and became effective March 1, 2000. The Rules of Adoption Procedurewere promulgated on September 30, 2004, and became effective January 1, 2005. The Rules ofGuardian Ad Litem Procedure were promulgated on August 27, 1997, and became effective onJanuary 1, 1999.Recognizing the need for a standing committee to review these three sets of rules on an ongoingbasis, on May 31, 2001, the Supreme Court established the Advisory Committee on the Rules ofJuvenile Protection Procedure. The Committee was directed to:1.Review case law relating to the three sets of rules;2.Review federal and state statutes relating to the three sets of rules;3.Review case management best practices relating to the three sets of rules;4.Review implementation of, and consider requests for revisions to, the three sets of rules;and5.Annually submit to the Supreme Court a report recommending any necessary revision ofthe three sets of rules.The Committee was given a clear directive that the Court would be unlikely to adopt proposedamendments that were inconsistent with existing statutes.COMMITTEE PROCEDURESAt the conclusion of the 2007 rules-making session the Committee determined thatsubcommittees comprised of subject matter experts were necessary to address procedural rulesrelated to expediting appeals and the Indian Child Welfare Act (ICWA). Those subcommitteesmet during the first half of 2008 and submitted their reports to the full Committee in August2008 and September 2008, respectively. A summary of the work of those subcommittee is setforth in the next section of this report.The Subcommittees submitted their reports to the Committee, and the Committee met fromAugust 2008 through January 2009 to address the subcommittee reports and other proceduralissues raised since the Committee‟s last report to the Court. Some issues considered by theCommittee were technical in nature, such as correcting internal numbering schemes; someresulted from recent federal or state statutory amendments; and others were requests forclarification raised by judges, social workers, court administrators, GALs, and attorneys.In December 2008, a draft of the Committee‟s proposed amendments was distributed to thepublic for comment. The Committee reviewed and considered the public comments, and thenrevised and refined the proposed amendments which are set forth in Section II of this Report.The Committee achieved consensus regarding the majority of the proposed amendments.Report and Proposed Rules AmendmentsPage 5
INTRODUCTIONSUBCOMMITTEES: PURPOSES AND PROCEDURESIndian Child Welfare Act (ICWA) SubcommitteeThe purpose of the Indian Child Welfare Act (ICWA) Subcommittee was to recommend to thefull Juvenile Protection Rules Committee revisions to the Rules of Juvenile Protection Procedure(“the Rules”) that will ensure consistent application of the ICWA, the Minnesota Indian FamiliesPreservation Act (MIFPA), and related federal and state laws and case law.The Subcommittee met monthly from January through July 2008, and one meeting in October2008, during which time the members reviewed federal and state statutes and case law in aneffort to identify gaps in the Rules and inconsistencies between the statutes and the Rules. Themembers also reviewed other sources of ICWA practices and procedures, including the Bureauof Indian Affairs Guidelines for State Courts – Indian Child Custody Proceedings (“BIAGuidelines”), the 2007 Tribal/State Agreement, and the Uniform Child Custody Jurisdiction andEnforcement Act (UCCJEA).After identifying numerous ICWA-related gaps and inconsistencies in the Rules, the membersbegan to draft proposed amendments. Throughout this process, the Subcommittee memberssolicited feedback from their respective “constituent groups” about the proposed amendments.The Subcommittee members were not unanimous in their thoughts about whether to recommendeach of the proposed amendments. Through the process of thoughtful and respectfuldeliberations, the members achieved consensus regarding most of the proposed amendments setforth in this report. Where a majority consensus could not be reached, the Subcommitteemembers agreed to present the issue to the full uvenile Protection Rules Committee.Expedited Appeals SubcommitteeThe purpose of the Expedited Appeals Subcommittee was to recommend to the full JuvenileProtection Rules Committee revisions to the Juvenile Protection Rules to ensure that Minnesotais in conformity with federal and state child permanency timelines, especially as they relate toensuring that adoptions are finalized within 24 months of a child‟s removal from home.The federal Child and Family Services Review (CFSR) (for background information, seeAppendix D) establishes several adoption-related standards for children, including the standardthat adoptions be finalized within 24 months (730 days) of the child‟s removal from home. This24-month maximum timeframe encompasses the 365-day (12-month) CHIPS process, the TPRprocess (typically at least 90 days), the post-trial motion process, the TPR appellate process ifany, and the adoption process. Based upon the federal timeline, once the 365-day CHIPSprocess is complete, the TPR process, the post-trial motion process, appellate process, andadoption process must be completed within the next 365 days.In order to meet the CFSR standard regarding timely adoptions, the nationally recommended bestpractice is to allow from 215 to 240 days from conclusion of a TPR trial to issuance of the finalappellate decision (see Appendix B for an “At-a-Glance” overview of nationally recommendedReport and Proposed Rules AmendmentsPage 6
INTRODUCTIONbest practices and timelines such as those recommended by the American Bar Association(ABA) or the National Council of Juvenile and Family Court Judges (NCJFCJ)).The current rules meet the federal 365-day CHIPS permanency timeline, and the CFSR reportindicates that Minnesota is meeting this timeline in actual practice. However, if CHIPS caseproceeds to TPR and the TPR is appealed, the current rules permit 337-days from conclusion of aTPR trial to issuance of a Court of Appeals decision and make meeting the 24-month (730-day)federal standard for finalizing an adoption practically impossible (see Appendix A for an “At-aGlance” overview of Minnesota‟s existing Rules, practices, and timelines related to the TPR andappellate process). Data from the Minnesota Court Information System (MNCIS) shows that inactual practice the ave
minnesota supreme court file no: c1-01-927 report and proposed rules amendments submitted by juvenile protection rules committee to minnesota supreme court february 6, 2009 minnesota judicial branch state court administrator’s office court services division 105 minnesota judicial center 25 rev.dr.m
