SB284: Bill Text

LRB-1850/2

GMM:wlj:rs

2005 - 2006 LEGISLATURE

2005 Senate BILL 284

August 10, 2005 - Introduced by Senators Roessler, Olsen and A. Lasee, cosponsored by Representatives Kestell, Townsend, Ott, Jeskewitz and Musser. Referred to Committee on Health, Children, Families, Aging and Long Term Care.

SB284,2,3 An Act to repeal 48.981 (1) (fm); to renumber and amend 48.21 (1) (b), 48.981 (3) (a) 2. and 48.981 (3) (c) 1.; to amend 48.02 (15), 48.21 (1) (a), 48.425 (1) (f), 48.425 (1) (g), 48.427 (3m) (intro.), 48.427 (3m) (a) 1., 48.428 (2) (a), 48.428 (2) (b), 48.43 (5) (c), 48.57 (3m) (a) 2., 48.57 (3n) (a) 2., 48.62 (2), 48.75 (1g) (a) 1., 48.977 (1), 48.981 (3) (c) 4. and 938.02 (15); and to create 48.21 (1) (b) 1., 48.427 (3m) (am), 48.981 (3) (a) 2. a., 48.981 (3) (a) 2. b., 48.981 (3) (a) 2. c., 48.981 (3) (a) 2. d. and 48.981 (3) (a) 2d. of the statutes; relating to: the investigation of child abuse or neglect reports in which a person who is not a caregiver of the child is suspected of the abuse or neglect of the child; defining the persons who are considered to be relatives of a child or juvenile for purposes of the Children's Code and the Juvenile Justice Code; extending the time for which a child may be held in custody when additional time is required to determine whether the filing of a petition initiating proceedings under the Children's Code is necessary; and the transfer of guardianship and custody of a child to a county department of human services or social services in a county other than Milwaukee County for the placement of a child for adoption in the home of the child's foster or treatment foster parents.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the Children's Code and the Juvenile Justice Code relating to the investigation of child abuse or neglect reports in which a person who is not a caregiver of the child is suspected of the abuse or neglect of the child; defining the persons who are considered to be relatives of a child or juvenile for purposes of the Children's Code and the Juvenile Justice Code; extending the time for which a child may be held in custody when additional time is required to determine whether the filing of a petition initiating proceedings under the Children's Code is necessary; and the transfer of guardianship and custody of a child to a county department of human services or social services (county department) in a county other than Milwaukee County for placement of the child for adoption in the home of the child's foster or treatment foster parents. The changes are as follows:

Child abuse investigations of noncaregivers

Under current law, certain persons having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur must report that suspected or threatened abuse or neglect to the county department of human services or social services or, in Milwaukee County, to the Department of Health and Family Services (DHFS) or a child welfare agency under contract with DHFS (collectively "agency") or to the sheriff or police department. Current law also permits any other person having reason to suspect that a child has been abused or neglected or reason to believe that a child has been threatened with abuse or neglect and that abuse or neglect of the child will occur to make such a report.

Current law requires the sheriff or police department to refer to an agency all cases of child abuse or neglect reported to it and the agency, within 24 hours after receiving a report, to initiate a diligent investigation to determine if the child is in need of protection or services. Current law also specifies certain procedures that an agency must follow in investigating cases in which there is reason to suspect that the child was abused or neglected, or was threatened with abuse or neglect, by a caregiver, which is defined under current law as a relative, guardian, or legal custodian of the child; a person who resides or has resided regularly or intermittently in the same dwelling as the child; an employee of a residential facility or a residential care center for children and youth in which the child was or is placed; a person who provides or has provided care for the child in or outside of the child's home; or any other person who exercises or has exercised temporary or permanent control or supervision over the child.

This bill permits, rather than requires, the sheriff or police department to refer to an agency a case in which a person who is not a caregiver of a child is suspected of the abuse or neglect, or of the threatened abuse or neglect, of the child and permits, rather than requires, the agency to initiate a diligent investigation to determine if the child is in need of protection or services. In cases in which a caregiver is suspected of the abuse or neglect, or of the threatened abuse or neglect, of a child, in which a caregiver is suspected of facilitating or failing to take action to prevent the suspected or threatened abuse or neglect of a child, or in which it cannot be determined who abused or neglected a child, the sheriff or police department must refer the case to an agency and the agency must investigate the case as under current law.

Definition of "relative" in Children's Code and Juvenile Justice Code

Currently, for purposes of the Children's Code and the Juvenile Justice Code, a "relative" of a child or juvenile is defined as a parent, grandparent, greatgrandparent, stepparent, brother, sister, first cousin, nephew, niece, uncle, or aunt, whether the relationship is by blood, marriage, or adoption. For the purpose of determining eligibility to receive kinship care or long-term kinship care payments for providing care and maintenance for a child, for the purpose of determining eligibility to be appointed as the guardian of a child in need of protection or services, and for the purpose of exempting a relative who is providing care and maintenance for a child from having to obtain a foster home license, the definition is expanded to include a stepbrother or stepsister, any person of a preceding generation as denoted by the prefix grand, great, or great-great, and the spouse of any relative, even if the marriage is terminated by death or divorce. The definition is also expanded for purposes of investigating any suspected or threatened abuse or neglect of a child by a caregiver of the child to include a second cousin, stepgrandparent, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, stepuncle, or stepaunt.

This bill expands the definitions of a "relative" of a child or juvenile for purposes of the Children's Code and the Juvenile Justice Code to include, in addition to the relatives currently listed in those definitions, a stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, second cousin, stepuncle, stepaunt, any person of a preceding generation as denoted by the prefix grand, great, or great-great, and the spouse of any relative, even if the marriage is terminated by death or divorce. The bill also conforms the various other definitions of "relative" found in the Children's Code to the expanded definition, except that under the bill the definitions of "kinship care relative," "long-term kinship care relative," and "relative," for purposes of eligibility to be appointed as the guardian of a child in need of protection or services, do not include a parent of the child.

Holding a child in custody

Under current law, if a child who has been taken into custody under the Children's Code is not released, a judge of the court assigned to exercise jurisdiction under the Children's Code (juvenile court) or a circuit court commissioner must conduct a hearing within 48 hours of the time the decision to hold the child in custody was made, exclusive of Saturdays, Sundays, and legal holidays, and a petition initiating proceedings under the Children's Code must be filed by the time of the hearing. If a hearing is not held within the time required or if a petition is not filed by the time of the hearing, the child must be released, except that if a hearing is held, but no petition is filed, the child may be held in custody for an additional 72 hours, exclusive of Saturdays, Sundays, and legal holidays, if the juvenile court judge or circuit court commissioner determines that probable cause exists to believe that the child is an imminent danger to himself or herself or others or that the child's parent, guardian, or legal custodian or another responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care for the child.

This bill permits a child to be held in custody for an additional 72 hours, when no petition is filed by the time of the custody hearing, if the juvenile court judge or circuit court commissioner determines that probable cause exists to believe that additional time is required to determine whether the filing of a petition initiating proceedings under the Children's Code is necessary.

Placement of a child for adoption

Under current law, if the parental rights of both parents or of the only living parent of a child are terminated, the juvenile court must do one of the following:

1. Transfer guardianship and custody of the child pending adoptive placement to a county department that is authorized to accept guardianship of a child, for purposes of placing a child for adoption, to a child welfare agency that is licensed to accept guardianship of a child and to place the child for adoption, to DHFS, to a relative with whom the child resides, or to an individual who has been appointed guardian of the child by a court of a foreign jurisdiction.

2. Transfer guardianship of the child to a county department, child welfare agency, or DHFS and custody of the child to a relative or to an individual in whose home the child has resided for at least 12 consecutive months immediately prior to the termination of parental rights (TPR).

This bill permits the juvenile court, following a TPR, to transfer guardianship and custody of a child to a county department of a county other than Milwaukee County for placement of the child for adoption by the child's foster parent or treatment foster parent, only if the county department has agreed to accept guardianship and custody of the child and the foster parent or treatment foster parent has agreed to adopt the child.

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:

SB284, s. 1 Section 1. 48.02 (15) of the statutes is amended to read:

SB284,5,5 48.02 (15) "Relative" means a parent, grandparent, greatgrandparent, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, nephew, niece, uncle, or aunt. This relationship shall be, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce.

SB284, s. 2 Section 2. 48.21 (1) (a) of the statutes is amended to read:

SB284,5,20 48.21 (1) (a) If a child who has been taken into custody is not released under s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss. 48.205 to 48.209 shall be conducted by the judge or a circuit court commissioner within 48 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under s. 48.25 shall be filed, except that no petition need be filed where a when the child is taken into custody under s. 48.19 (1) (b) or (d) 2. or 7. or where when the child is a runaway from another state, in which case a written statement of the reasons for holding a the child in custody shall be substituted if the petition is not filed. If no hearing has been held within 48 hours, excluding Saturdays, Sundays, and legal holidays, or if no petition or statement has been filed at the time of the hearing, the child shall be released except as provided in par. (b) pars. (b) and (bm). A parent not present at the hearing shall be granted a rehearing upon request for good cause shown.

SB284, s. 3 Section 3. 48.21 (1) (b) of the statutes is renumbered 48.21 (1) (b) (intro.) and amended to read:

SB284,6,3 48.21 (1) (b) (intro.) If no petition has been filed by the time of the hearing, a child may be held in custody with approval of the judge or circuit court commissioner for an additional 72 hours from the time of the hearing, excluding Saturdays, Sundays, and legal holidays, only if, as a result of the facts brought forth at the hearing, the judge or circuit court commissioner determines that probable cause exists to believe that any of the following:

SB284,6,4 2. That the child is an imminent danger to himself or herself or to others, that.

SB284,6,7 3. That probable cause exists to believe that the parent, guardian, or legal custodian of the child or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care or, .

SB284,6,17 4. That, if the child is an expectant mother who was taken into custody under s. 48.19 (1) (cm) or (d) 8., that probable cause exists to believe that there is a substantial risk that if the child expectant mother is not held, the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, and to believe that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The

SB284,6,21 (bm) An extension under par. (b) may be granted only once for any petition. In the event of failure to file a petition within the extension period provided for in this paragraph par. (b), the judge or circuit court commissioner shall order the child's immediate release from custody.

SB284, s. 4 Section 4. 48.21 (1) (b) 1. of the statutes is created to read:

SB284,6,24 48.21 (1) (b) 1. That additional time is required to determine whether the filing of a petition initiating proceedings under this chapter is necessary.

SB284, s. 5 Section 5. 48.425 (1) (f) of the statutes is amended to read:

SB284,7,7 48.425 (1) (f) If the report recommends that the parental rights of both of the child's parents or the child's only living or known parent are to be terminated, the report shall contain a statement of the likelihood that the child will be adopted. This statement shall be prepared by an agency designated in s. 48.427 (3m) (a) 1. to 4. or (am) and include a presentation of the factors which that might prevent adoption, those which that would facilitate it adoption, and the agency which that would be responsible for accomplishing the adoption.

SB284, s. 6 Section 6. 48.425 (1) (g) of the statutes is amended to read:

SB284,7,15 48.425 (1) (g) If an agency designated under s. 48.427 (3m) (a) 1. to 4. or (am) determines that it is unlikely that the child will be adopted, or if adoption would not be in the best interests of the child, the report shall include a plan for placing the child in a permanent family setting. The plan shall include a recommendation as to the agency to be named guardian of the child or a recommendation that the person appointed as the guardian of the child under s. 48.977 (2) continue to be the guardian of the child.

SB284, s. 7 Section 7. 48.427 (3m) (intro.) of the statutes is amended to read:

SB284,7,19 48.427 (3m) (intro.) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has not been appointed under s. 48.977, the court shall either do one of the following:

SB284, s. 8 Section 8. 48.427 (3m) (a) 1. of the statutes is amended to read:

SB284,7,22 48.427 (3m) (a) 1. A county department authorized to accept guardianship under s. 48.57 (1) (e) or (hm).

SB284, s. 9 Section 9. 48.427 (3m) (am) of the statutes is created to read:

SB284,8,3 48.427 (3m) (am) Transfer guardianship and custody of the child to a county department authorized to accept guardianship under s. 48.57 (1) (hm) for placement of the child for adoption by the child's foster parent or treatment foster parent, if the county department has agreed to accept guardianship and custody of the child and the foster parent or treatment foster parent has agreed to adopt the child.

SB284, s. 10 Section 10. 48.428 (2) (a) of the statutes is amended to read:

SB284,8,14 48.428 (2) (a) Except as provided in par. (b), when a court places a child in sustaining care after an order under s. 48.427 (4), the court shall transfer legal custody of the child to the county department, the department, in a county having a population of 500,000 or more, or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. or (am) and place the child in the home of a licensed foster parent, licensed treatment foster parent, or kinship care relative with whom the child has resided for 6 months or longer. Pursuant to such a placement, this licensed foster parent, licensed treatment foster parent, or kinship care relative shall be a sustaining parent with the powers and duties specified in sub. (3).