Minnesota strengthens right to counsel for Indian custodians and parents of 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,” such that the Act now reads similarly to the 2021 version of Minn. Stat. § 260C.163, subd. 3(c), the provision generally applicable to parents. (mandating counsel for indigent parents who want counsel “[i]n all child protection proceedings where a child risks removal from the care of the child’s parent…”).  

Amended Minn. Stat. § 260.771, subd. 2b provides that an indigent parent or parents or Indian custodian have the right to counsel “[i]n any state court child placement proceeding.” (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 enacted 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).