Minnesota passes bill strengthening right to counsel for Indian children

In 2023, the Minnesota legislature enacted SF 667, which amended the Minnesota Indian Family Preservation Act to expand the definition of "child placement proceeding," and to provide Indian children subject to such proceedings with the right to counsel if they are at least ten years of age.  The changes have brought the Act in alignment with the provision generally applicable to children in abuse/neglect matters in Minnesota. (mandating counsel upon request for a child ten years of age or older who is subject to a petition for a child in need of protection or services).  

Amended Minn. Stat. § 260.771, subd. 2b(b) provides that "[i]n any state court child placement proceeding, any child ten years of age or older shall have the right to court-appointed counsel." (emphasis added).  The law defines "child placement proceeding" broadly as "includ[ing] all placements where Indian children are placed out-of-home or away from the care, custody, and control of their parent or parents or Indian custodian", excluding matters that "implicate custody between the parents." Minn. Stat. § 260.755, subd. 3(a).

In May 2024, the legislature passed HF 5237, again amending the provision.  The law adds that child placement proceedings "includ[e] but [are] not limited to any proceeding where the petitioner or another party seeks to temporarily or permanently remove an Indian child from the Indian child's parent or parents or Indian custodian". See Minn. Stat. § 260.771, subd. 2b(a).  It also specifies that counsel shall be appointed "prior to the first hearing on the petition, but [the court] may appoint counsel at any stage of the proceeding if the court deems it necessary." Id. at (c).  Finally, the law adds discretionary appointment of counsel for Indian children younger than ten years of age. Id. at (b).