SB601: Bill Text

LRB-5290/1

GMM:skg&mkd:nb

1995 - 1996 LEGISLATURE

1995 Senate BILL 601

March 5, 1996 - Introduced by Senator Huelsman, cosponsored by Representatives Krug and Ladwig. Referred to Committee on Judiciary.

SB601,3,2 An Act to repeal 619.01 (1) (c) 4m., 619.01 (9m) and 895.485 (1) (c); to renumber 48.368; to renumber and amend 48.427 (3) (intro.) and 48.428 (2); to amend 20.410 (3) (ho), 20.410 (3) (o), 20.410 (3) (oo), 20.435 (3) (cf) (title), 20.435 (3) (dd), 20.435 (3) (pd), 20.435 (7) (b), 20.445 (3) (d), 46.03 (7m), 46.036 (1), 46.10 (14) (a), 46.10 (14) (b), 46.16 (2), 46.21 (2) (j), 46.48 (3) (a), 46.48 (15) (a) 1., 46.48 (15) (a) 2., 46.48 (15) (a) 3., 46.495 (1) (d), 46.51 (4), 46.56 (8) (L), 46.98 (1) (c), 46.985 (1) (f), 48.01 (1) (gg), 48.02 (6), 48.023 (intro.), 48.09 (5), 48.14 (2) (b), 48.185 (1), 48.185 (2), 48.207 (1) (c), 48.207 (1) (f), 48.207 (3), 48.235 (1) (c), 48.299 (4) (a), 48.299 (4) (b), 48.33 (4) (intro.), 48.33 (5), 48.345 (3) (c), 48.355 (2) (b) 2., 48.357 (1), 48.375 (4) (a) 1., 48.375 (4) (b) 1m., 48.375 (4) (b) 3., 48.375 (7) (f), 48.38 (2) (intro.), 48.38 (4) (f) (intro.), 48.38 (5) (b), 48.38 (5) (c) 2., 48.38 (5) (e), 48.42 (2) (d), 48.425 (1) (f), 48.425 (1) (g), 48.428 (4), 48.43 (1) (a), 48.43 (4), 48.43 (5) (b), 48.43 (5) (c), 48.43 (5m), 48.48 (9), 48.52 (1) (b), 48.57 (1) (c), 48.57 (1) (i), 48.57 (3) (a) 4., 48.60 (2) (e), 48.61 (3), 48.61 (7), 48.615 (1) (b), subchapter XIV (title) of chapter 48 [precedes 48.62], 48.62 (title), 48.62 (1) (a), 48.62 (2), 48.62 (4), 48.625 (3), 48.627 (title), 48.627 (2) (a), 48.627 (2c), 48.627 (2m), 48.627 (2s) (a), 48.627 (2s) (b), 48.627 (3) (b), 48.627 (3) (d), 48.627 (3) (e), 48.627 (3) (f), 48.627 (3) (h), 48.627 (4), 48.627 (5), 48.63 (1), 48.63 (4), 48.64 (title), 48.64 (1), 48.64 (1m), 48.64 (2), 48.64 (4) (a), 48.64 (4) (c), subchapter XVI (title) of chapter 48 [precedes 48.66], 48.66 (1), 48.67, 48.675 (1), 48.675 (2), 48.675 (3) (intro.), 48.675 (3) (a), 48.70 (2), 48.73, 48.75 (title), 48.75 (1), 48.75 (2), 48.831 (title), 48.831 (1), 48.833, 48.837 (1), 48.975 (3) (a), 48.98 (1), 48.98 (2) (a), 48.981 (3) (d) 1., 48.981 (7) (a) 4., 49.19 (1) (a) 2. b., 49.19 (4e) (a), 49.19 (10) (a), 49.19 (10) (c), 49.19 (10) (d), 49.19 (10) (e), 49.20 (2) (d), 49.32 (9) (a), 49.45 (3) (e) 7., 49.46 (1) (a) 5., 49.46 (1) (d) 1., 50.01 (1) (a) 1., 50.01 (1) (a) 2., 59.97 (15) (intro.), 59.97 (15) (bm), 60.63 (intro.), 60.63 (3), 62.23 (7) (i) (intro.), 62.23 (7) (i) 2m., 103.10 (1) (a) (intro.), 103.10 (1) (f), 106.11 (2) (a) 1. d., 121.79 (1) (d) (intro.), 121.79 (1) (d) 1., 121.79 (1) (d) 2., 146.0255 (2), 167.10 (7), 301.26 (4) (d) 3m., 301.26 (4) (d) 4., 301.26 (4) (e), 301.26 (4) (ed), 343.15 (4) (a) 3., 619.01 (1) (a), 619.01 (1) (c) 1., 619.01 (9), 767.24 (3) (c), 786.37, 809.105 (13), 895.485 (title), 895.485 (2) (a), 895.485 (2) (b), 895.485 (3), 895.485 (4) (intro.), 895.485 (4) (a), 938.02 (6), 938.207 (1) (c) and (f), 938.33 (4) (intro.), 938.33 (5), 938.34 (3) (c), 938.355 (2) (b) 2., 938.357 (1), 938.38 (2) (intro.), 938.38 (4) (f) (intro.), 938.38 (5) (b) and (e), 938.48 (4), 938.52 (1) (b), 938.538 (3) (a) 1p., 938.57 (1) (c), 938.57 (3) (a) 4., 940.203 (1) (a), 940.205 (1), 940.207 (1), 943.013 (1) (a), 943.015 (1), 948.01 (3) and 949.06 (1m) (a); and to create 48.02 (5j), 48.02 (22), 48.065 (3) (g), 48.235 (4) (a) 7g., 48.368 (2), 48.427 (3p), 48.428 (2) (b), 48.62 (1) (c), 48.977, 808.075 (4) (a) 10., 808.075 (4) (a) 11., 938.02 (5j), 938.02 (22) and 938.235 (4) (a) 7g. of the statutes; relating to: licensing of certain foster homes as village foster homes, guardianship for certain children adjudged to be in need of protection or services and making appropriations.

Analysis by the Legislative Reference Bureau

Under current law, any person who receives, with or without transfer of legal custody, 4 or fewer children, or more than 4 children if all of the children are siblings, to provide care and maintenance for those children must obtain a license to operate a foster home from the department of health and social services (DHSS) (to be renamed the department of health and family services (DHFS) effective on July 1, 1996), a county department of human services or social services (county department) or a licensed child welfare agency. Currently, any person who receives, with or without transfer of legal custody, 4 or fewer children to provide care and maintenance and structured, professional treatment for those children must obtain a license to operate a treatment foster home from DHSS, a county department or a licensed child welfare agency.

This bill creates a new category of foster home known as a village foster home, which is defined in the bill as a facility that is operated by a person required to obtain a license to operate a village foster home, that provides care and maintenance for no more than 6 children, that is clustered in a village setting with other village foster homes, that has as its goal the provision of a stable, long-term placement for those children and that employs individuals on a long-term basis to provide that care and maintenance.

Under current law, the court assigned to exercise jurisdiction under the children's code (juvenile court) has exclusive jurisdiction over the appointment and removal of the guardian of a child under the general guardianship law and also of a child who is the subject of a termination of parental rights (TPR) order; a child without a living parent for whom a finding as to the adoptability of the child is sought; a child whose guardian's license to accept guardianship has been revoked; a child whose guardian has been appointed by a foreign jurisdiction but whose guardian has not filed a TPR or adoption petition in this state; and a child who has been adjudged to be in need of protection or services because the child is without a parent or guardian.

This bill grants to the juvenile court exclusive jurisdiction over the appointment and removal of a relative or a village foster parent as the guardian of certain children in need of protection or services under certain circumstances. Specifically, the juvenile court may appoint a relative or a village foster parent as the guardian of a child if the juvenile court finds all of the following:

1. That the child has been adjudged to be in need of protection or services because the child is without a living parent or guardian; has been abandoned; has been the victim of sexual or physical abuse; is at substantial risk of sexual or physical abuse based on the sexual or physical abuse of another child in the home; has a parent who has signed a petition stating that the parent is unable to care for the child; has been placed for adoption in violation of the law; is receiving inadequate care during the time that a parent is missing, incarcerated, hospitalized or institutionalized; is at least 12 years old and attests that he or she is in need of special treatment or care which the parent is unwilling to provide; has a parent who neglects, refuses or is unable for reasons other than poverty to provide necessary care so as to seriously endanger the physical health of the child; has a parent who is at substantial risk of neglecting the child based on the neglect of another child in the home; is suffering emotional damage for which the parent is neglecting, refusing or unable to provide treatment; or is suffering from a severe alcohol or other drug abuse impairment for which the parent is neglecting, refusing or unable to provide treatment.

2. That the child has been placed outside of his or her home under a juvenile court order for a cumulative period of one year or more.

3. That the child has been placed with the relative or village foster parent who has been nominated as the guardian and it is likely that the child will continue to be placed with the relative or village foster parent for an extended period of time or until the child attains the age of 18 years.

4. That the relative or village foster parent is likely to be willing and able to serve as the child's guardian for an extended period of time or until the child attains the age of 18 years.

5. That it is not in the best interests of the child that a TPR petition be filed with respect to the child.

6. That the child's parents are neglecting, refusing or unable to carry out the duties of a guardian of the child.

7. That the agency primarily responsible for providing services for the child under a juvenile court order has made reasonable efforts to make it possible for the child to be returned to his or her home, but reunification of the child with his or her parents and further reunification efforts are unlikely or contrary to the bests interest of the child.

Under current law, a dispositional order for a child in need of protection or services terminates at the end of one year, unless the juvenile court specifies a shorter period of time. Accordingly, to retain jurisdiction over a child in need of protection or services, the juvenile court must annually extend its order before it expires. Under this bill, if a relative or village foster parent is appointed as the guardian of a child and the home of the relative or village foster parent is designated by the juvenile court as the child' permanent foster home, the child's dispositional order remains in effect until the guardianship order terminates, the juvenile court enters a change in placement order, the juvenile court terminates the dispositional order or the child attains 18 years of age, whichever occurs first. The juvenile court may terminate the guardianship order by removing the guardian for cause, accepting the guardian's resignation or terminating the guardianship on the request of the child's parent if the parent shows that there has been a substantial change in circumstances, that the parent is willing and able to carry out the duties of a guardian and that termination of the guardianship would be in the child's best interests.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB601, s. 1 Section 1. 20.410 (3) (ho) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB601,5,15 20.410 (3) (ho) Juvenile residential aftercare. The amounts in the schedule for providing foster care, treatment foster care, group home care and institutional child care to delinquent children under ss. 49.19 (10) (d), 938.48 (4) and (14) and 938.52. All moneys transferred under s. 301.26 (4) (cm) and all moneys received in payment for providing foster care, treatment foster care, group home care and institutional child care to delinquent children under ss. 49.19 (10) (d), 938.48 (4) and (14) and 938.52 as specified in s. 301.26 (4) (e) shall be credited to this appropriation. If moneys generated by the monthly rate exceed actual fiscal year foster care, treatment foster care, group home care and institutional child care costs by 2% or more, all moneys in excess of 2% shall be remitted to the counties during the subsequent calendar year. Each county shall receive a proportionate share of the remittance depending on the total number of days of placement in foster care, treatment foster care, group home care or institutional child care.

SB601, s. 2 Section 2. 20.410 (3) (o) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB601,6,2 20.410 (3) (o) (title) Federal aid; foster care and treatment foster care. All federal moneys received for meeting the costs of providing foster care, treatment foster care and institutional child care to delinquent children under ss. 938.48 (4) and (14) and 938.52, and for the cost of care for children under s. 49.19 (10) (d). All moneys received under this paragraph shall be deposited in the general fund as a nonappropriated receipt.

SB601, s. 3 Section 3. 20.410 (3) (oo) of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

SB601,6,9 20.410 (3) (oo) Federal aid; community youth and family aids. All federal moneys received as child welfare funds under 42 USC 620 to 626 as limited under s. 48.985 and all federal moneys received relating to providing care in foster homes, treatment foster homes, group homes or child caring institutions for the purposes of s. 301.26, and all other federal moneys received for meeting costs under s. 301.26.

SB601, s. 4 Section 4. 20.435 (3) (cf) (title) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB601,6,13 20.435 (3) (cf) (title) Foster, treatment foster and family-operated group home parent insurance and liability.

SB601, s. 5 Section 5. 20.435 (3) (dd) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB601,6,19 20.435 (3) (dd) State foster care and adoption services. The amounts in the schedule for foster care, treatment foster care, institutional child care and subsidized adoptions under ss. 48.48 (12) and 48.52, for the cost of care for children under s. 49.19 (10) (d) and for the cost of the foster care monitoring system.

SB601, s. 6 Section 6. 20.435 (3) (pd) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB601,7,2 20.435 (3) (pd) Federal aid; state foster care and adoption services. All federal moneys received for meeting the costs of providing foster care, treatment foster care and institutional child care under s. 48.52, and for the cost of care for children under s. 49.19 (10) (d). Disbursements for foster care under s. 46.03 (20) and for the purposes described under s. 48.627 may be made from this appropriation.

SB601, s. 7 Section 7. 20.435 (7) (b) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB601,7,21 20.435 (7) (b) Community aids. The amounts in the schedule for human services under s. 46.40, for reimbursement to counties having a population of less than 500,000 for the cost of court attached intake services under s. 48.06 (4), for shelter care under ss. 48.58 and 938.22 and for foster care and treatment foster care under s. 49.19 (10). Social services disbursements under s. 46.03 (20) (b) may be made from this appropriation. Refunds received relating to payments made under s. 46.03 (20) (b) for the provision of services for which moneys are appropriated under this paragraph shall be returned to this appropriation. Notwithstanding ss. 20.001 (3) (a) and 20.002 (1), the department of health and family services may transfer funds between fiscal years under this paragraph. The department shall deposit into this appropriation funds it recovers under ss. 46.495 (2) (b) and 51.423 (15) from prior year audit adjustments including those resulting from audits of services under s. 46.26, 1993 stats., or s. 46.27. Except for amounts authorized to be carried forward under s. 46.45, all funds recovered under ss. 46.495 (2) (b) and 51.423 (15) and all funds allocated under s. 46.40 and not spent or encumbered by December 31 of each year shall lapse to the general fund on the succeeding January 1 unless carried forward to the next calendar year by the joint committee on finance.

SB601, s. 8 Section 8. 20.445 (3) (d) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB601,8,13 20.445 (3) (d) Income maintenance payments to individuals and counties. A sum sufficient to provide state aid for county administered public assistance programs for which reimbursement is provided under s. 49.33 (9) and to provide reimbursement to counties for the cost of foster care and treatment foster care provided by nonlegally responsible relatives under state or county administered programs, if the relatives are licensed to operate foster homes or treatment foster homes under s. 48.62. Total payments under this paragraph to a county for the reimbursement of nonlegally responsible relative foster care costs incurred in a calendar year may not exceed the amount for which the county was reimbursed under this paragraph for nonlegally responsible relative foster care costs incurred in 1994. Disbursements for public assistance may be made directly from this appropriation including the state and county share under s. 46.03 (20) (a). Refunds received relating to payments made under s. 46.03 (20) (a) shall be returned to this appropriation. The receipt of the counties' payments for their share under s. 46.03 (20) shall be returned to this appropriation.

SB601, s. 9 Section 9. 46.03 (7m) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB601,8,20 46.03 (7m) Foster care. In each federal fiscal year, ensure that there are no more than 2,200 children in foster care and treatment foster care placements for more than 24 months, consistent with the best interests of each child. Services provided in connection with this requirement shall comply with the requirements under P.L. 96-272.

SB601, s. 10 Section 10. 46.036 (1) of the statutes, as affected by 1995 Wisconsin Act 27, section 2051, is amended to read:

SB601,9,7 46.036 (1) All care and services purchased by the department or by a county department under s. 46.215, 46.22, 46.23, 51.42 or 51.437, except as provided under subch. III of ch. 49 and s. 301.08 (2), shall be authorized and contracted for under the standards established under this section. The department may require the county departments to submit the contracts to the department for review and approval. For purchases of $10,000 or less the requirement for a written contract may be waived by the department. No contract is required for care provided by foster homes or treatment foster homes that are required to be licensed under s. 48.62. When the department directly contracts for services, it shall follow the procedures in this section in addition to meeting purchasing requirements established in s. 16.75.

SB601, s. 11 Section 11. 46.10 (14) (a) of the statutes is amended to read:

SB601,9,22 46.10 (14) (a) Except as provided in pars. (b) and (c), liability of a person specified in sub. (2) or s. 46.03 (18) for inpatient care and maintenance of persons under 18 years of age at community mental health centers, a county mental health complex under s. 51.08, the centers for the developmentally disabled, Mendota mental health institute and Winnebago mental health institute or care and maintenance of persons under 18 years of age in residential, nonmedical facilities such as group homes, foster homes, treatment foster homes, child caring institutions and juvenile correctional institutions is determined in accordance with the cost-based fee established under s. 46.03 (18). The department shall bill the liable person up to any amount of liability not paid by an insurer under s. 632.89 (2) or (2m) or by other 3rd party benefits, subject to rules which include formulas governing ability to pay promulgated by the department under s. 46.03 (18). Any liability of the patient not payable by any other person terminates when the patient reaches age 18, unless the liable person has prevented payment by any act or omission.

SB601, s. 12 Section 12. 46.10 (14) (b) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

SB601,10,9 46.10 (14) (b) Except as provided in par. (c) and subject to par. (cm), liability of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the parent's minor child who has been placed by a court order under s. 48.355, 48.357, 938.183 (2), 938.355 or 938.357 in a residential, nonmedical facility such as a group home, foster home, treatment foster home, child caring institution or juvenile correctional institution shall be determined by the court by using the percentage standard established by the department under s. 46.25 (9) (a) and by applying the percentage standard in the manner established by the department under s. 46.25 (9) (b).

SB601, s. 13 Section 13. 46.16 (2) of the statutes is amended to read:

SB601,10,19 46.16 (2) (title) Child welfare agencies; foster homes; treatment foster homes; child care centers; day nurseries; nursery schools. It may license and revoke licenses of and exercise supervision over all child welfare agencies and the placement of children in foster homes and treatment foster homes, and grant permits to foster homes, treatment foster homes, child care centers, day nurseries and nursery schools. In the discharge of this duty it may inspect the records of child welfare agencies, child care centers, day nurseries, nursery schools and visit all institutions conducted by them and all foster homes and treatment foster homes in which children are placed.

SB601, s. 14 Section 14. 46.21 (2) (j) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB601,11,5 46.21 (2) (j) May exercise approval or disapproval power over contracts and purchases of the director that are for $50,000 or more, except that the county board of supervisors may not exercise approval or disapproval power over any personal service contract or over any contract or purchase of the director which relates to community living arrangements, adult family homes, or foster homes or treatment foster homes and which was entered into pursuant to a contract under s. 46.031 (2g) or 301.031 (2g), regardless of whether the contract mentions the provider, except as provided in par. (m). This paragraph does not preclude the county board of supervisors from creating a central purchasing department for all county purchases.