Representation of Children in Child Abuse and Neglect Proceedings - Minnesota

Date:

Making The Appointment

Citation: Ann. Stat. § 260C.163, Subd. 3 & 5

The child, parent, guardian, or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court.

In any proceeding where the subject of a petition for a child in need of protection or services is age 10 or older, the responsible social services agency shall, within 14 days after filing the petition or at the emergency removal hearing if the child is present, fully and effectively inform the child of the child's right to be represented by appointed counsel upon request and shall notify the court as to whether the child desired counsel. Information provided to the child shall include, at a minimum, the fact that counsel will be provided without charge to the child, that the child's communications with counsel are confidential, and that the child has the right to participate in all proceedings on a petition, including the opportunity to personally attend all hearings.

Counsel for the child shall not also act as the child's guardian ad litem (GAL).

In any proceeding where the child is not represented by an attorney, the court shall determine the child's preferences regarding the proceedings, including informing the child of the right to appointed counsel and asking whether the child desires counsel if the child is of suitable age to express a preference.

The court shall appoint a GAL to protect the interests of the minor when it appears, at any stage of the proceedings, that the minor is without a parent or guardian, the minor's parent is a minor or incompetent, or the parent or guardian is indifferent or hostile to the minor's interests, and in every proceeding alleging a child's need for protection or services under § 260C.007, subd. 6. In any other case, the court may appoint a GAL to protect the interests of the minor when the court feels that such an appointment is desirable.

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

Citation: Ann. Stat. §§ 260C.163, Subd. 3 & 5; 518.165, Subd. 4

Counsel retained by the county must meet the qualifications established by the Judicial Council in at least one of the following: (1) has a minimum of 2 years' experience handling child protection cases, (2) has training in handling child protection cases from a course or courses approved by the Judicial Council, or (3) is supervised by an attorney who meets the minimum qualifications under clause (1) or (2).

When appointing a GAL in a case involving an Indian or minority child, the court must consider whether a person is available who is the same racial or ethnic heritage as the child or, if that is not possible, whether a person is available who knows and appreciates the child's racial or ethnic heritage.

The court shall initiate a background study through the Commissioner of Human Services under § 245C.32 on every GAL appointed under this section if a background study has not been completed on the GAL within the past 3 years. The background study must be completed before the court appoints the GAL, unless the court determines that it is in the best interests of the child to appoint a GAL before a background study can be completed. A subsequent background study must be completed once every 3 years after the GAL has been appointed as long as the individual continues to serve as a GAL.

The background study must include criminal history data from the Bureau of Criminal Apprehension, other criminal history data held by the Commissioner of Human Services, and data regarding whether the person has been a perpetrator of substantiated maltreatment of a minor or a vulnerable adult. When information from the Bureau of Criminal Apprehension indicates that the subject of a study is a multistate offender or that the subject's multistate offender status is undetermined, the court shall require a search of the National Criminal Records Repository and shall provide the commissioner a set of classifiable fingerprints of the subject of the study.

Specific Duties

Citation: Ann. Stat. § 260C.163, Subd. 5

A GAL shall carry out the following responsibilities:

  • Conduct an independent investigation to determine the facts relevant to the situation of the child and the family, including, unless specifically excluded by the court, reviewing relevant documents; meeting with and observing the child in the home setting and considering the child's wishes, as appropriate; and interviewing parents, caregivers, and others with knowledge relevant to the case
  • Advocate for the child's best interests by participating in appropriate aspects of the case and advocating for appropriate community services when necessary
  • Maintain the confidentiality of information related to a case, with the exception of sharing information as permitted by law to promote cooperative solutions that are in the best interests of the child
  • Monitor the child's best interests throughout the judicial proceeding
  • Present written reports on the child's best interests that include conclusions and recommendations and the facts upon which they are based

How the Representative Is Compensated

Citation: Ann. Stat. §§ 260C.163, Subd. 3(b); 260C.331, Subd. 3, 5, & 6

Except in proceedings where the sole basis for the petition is habitual truancy, if the child desires counsel but is unable to employ it, the court shall appoint counsel to represent the child who is age 10 or older under § 611.14(4) or other counsel at public expense.

Reasonable compensation for an attorney appointed by the court to serve as counsel shall be paid by the county in which proceedings are held.

The State Guardian Ad Litem Board shall pay for GAL expenses and reasonable compensation for an attorney to serve as counsel for a GAL, if necessary. In no event may the court order that GAL expenses or compensation for an attorney serving as counsel for a GAL be charged to a county.

In proceedings in which the court has appointed counsel pursuant to § 260C.163, subd. 3 and § 611.14(4), for a minor unable to employ counsel, the court may inquire into the ability of the parents to pay for the counsel's services and, after giving the parents a reasonable opportunity to be heard, may order the parents to pay attorney fees.

In proceedings in which the court appoints a GAL pursuant to § 260C.163, subd. 5, the court may inquire into the ability of the parents to pay for the GAL's services and, after giving the parents a reasonable opportunity to be heard, may order the parents to pay GAL fees.

In each fiscal year, the Commissioner of Management and Budget shall deposit GAL reimbursements in the special revenue fund and credit them to a separate account with the State Guardian Ad Litem Board. The balance of this account is appropriated to the State Guardian Ad Litem Board and does not cancel, but is available until expended. Revenue from this account must be spent in the judicial district in which the reimbursement is collected.