1995 Wisconsin Act 275

3. The child's parent.

  4. The relative with whom the child is placed if the relative is nominated as the guardian of the child in the petition.

5. The department.

6. A county department.

  7. A licensed child welfare agency that has been assigned primary responsibility for providing services to the child under a court order.

8. The person representing the interests of the public under s. 48.09.

(b) Contents of petition. A proceeding for the appointment of a guardian for a child under sub. (2) shall be initiated by a petition which shall be entitled “In the interest of .... (child's name), a person under the age of 18" and shall set forth all of the following with specificity:

1. The name, birth date and address of the child.

  2. The names and addresses of the child's parent or parents, guardian and legal custodian.

  3. The date the child was adjudged in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (5), (8), (9), (10), (10m), (11) or (11m) or 938.13 (4) and the dates that the child has been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363 or 938.365.

  4. A statement of the facts and circumstances which the petition alleges establish that the conditions specified in sub. (2) (b) to (f) are met.

5. A statement of whether the proceedings are subject to the uniform child custody jurisdiction act under ch. 822.

6. A statement of whether the child may be subject to the federal Indian child welfare act, 25 USC 1911 to 1963.

(c) Service of petition and notice. 1. The petitioner shall cause the petition and notice of the time and place of the hearing under par. (cm) to be served upon all of the following persons:

a. The child if the child is 12 years of age or older.

b. The child's guardian and legal custodian.

c. The child's guardian ad litem.

d. The child's counsel.

e. The child's parent.

f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.

  g. The relative with whom the child is placed if the relative is nominated as the guardian of the child in the petition.

h. The person representing the interests of the public under s. 48.09.

i. The agency primarily responsible for providing services to the child under a court order.

  2. Service shall be made by 1st class mail at least 7 days before the hearing or by personal service at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or personal service, service shall be made by publication of a notice published as a class 1 notice under ch. 985. In determining which newspaper is likely to give notice as required under s. 985.02 (1), the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party.

(cm) Plea hearing. 1. A hearing to determine whether any party wishes to contest a petition filed under par. (a) shall take place on a date which allows reasonable time for the parties to prepare but is no more than 30 days after the filing of the petition. At the hearing, the nonpetitioning parties and the child, if he or she is 12 years of age or over or is otherwise competent to do so, shall state whether they wish to contest the petition. Before accepting a plea of no contest to the allegations in the petition, the court shall do all of the following:

a. Address the parties present and determine that the plea is made voluntarily and with understanding of the nature of the facts alleged in the petition, the nature of the potential disposition and the nature of the legal consequences of that disposition.

b. Establish whether any promises or threats were made to elicit the plea of no contest and alert all unrepresented parties to the possibility that an attorney may discover grounds to contest the petition that would not be apparent to those parties.

c. Make inquiries to establish to the satisfaction of the court that there is a factual basis for the plea of no contest.

2. If the petition is not contested and if the court accepts the plea of no contest, the court may immediately proceed to a dispositional hearing under par. (f), unless an adjournment is requested. If a party requests an adjournment, the court shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is no more than 30 days after the plea hearing.

3. If the petition is contested or if the court does not accept the plead of no contest, the court shall set a date for a fact-finding hearing under par. (d) which allows reasonable time for the parties to prepare but is not more than 30 days after the plea hearing.

(d) Fact-finding hearing. The court shall hold a fact-finding hearing on the petition on the date set by the court under par. (cm) 3., at which any party may present evidence relevant to the issue of whether the conditions specified in sub. (2) (a) to (f) have been met. If the court, at the conclusion of the fact-finding hearing, finds by clear and convincing evidence that the conditions specified in sub. (2) (a) to (f) have been met, the court shall immediately proceed to a dispositional hearing unless an adjournment is requested. If a party requests an adjournment, the court shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is no more than 30 days after the fact-finding hearing.

  (e) Court report. The court shall order the person or agency primarily responsible for providing services to the child under a court order to file with the court a report containing the written summary under s. 48.38 (5) (e) and as much information relating to the appointment of a guardian as is reasonably ascertainable. The agency shall file the report at least 48 hours before the date of the dispositional hearing under par. (f).

(fm) Dispositional hearing. The court shall hold a dispositional hearing on the petition at the time specified or set by the court under par. (cm) 2. or (d), at which any party may present evidence, including expert testimony, relevant to the disposition.

  (g) Dispositional factors. In determining the appropriate disposition under this section, the best interests of the child shall be the prevailing factor to be considered by the court. In making a decision about the appropriate disposition, the court shall consider any report submitted under par. (e) and shall consider, but not be limited to, all of the following:

1. Whether the relative would be a suitable guardian of the child.

  2. The willingness and ability of the relative to serve as the child's guardian for an extended period of time or until the child attains the age of 18 years.

3. The wishes of the child.

(h) Disposition. After receiving any evidence relating to the disposition, the court shall enter one of the following dispositions within 10 days after the dispositional hearing:

  1. A disposition dismissing the petition if the court determines that appointment of the relative as the child's guardian is not in the best interests of the child.

2. A disposition ordering that the relative with whom the child has been placed be appointed as the child's guardian under sub. (5) (a) or limited guardian under sub. (5) (b), if the court determines that such an appointment is in the best interests of the child.

(i) Effect of disposition on permanency plan review process. After a disposition under par. (h), the child's permanency plan shall continue to be reviewed under s. 48.38 (5), if applicable.

(5) Duties and authority of guardian. (a) Full guardianship. Unless limited under par. (b), a guardian appointed under sub. (2) shall have all of the duties and authority specified in s. 48.023.

(b) Limited guardianship. The court may order that the duties and authority of a guardian appointed under sub. (2) be limited. The duties and authority of a limited guardian shall be as specified by the order of appointment under sub. (4) (h) 2. or any revised order under sub. (6). All provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited guardian appointed under sub. (2) to the extent those provisions are relevant to the duties or authority of the limited guardian, except as limited by the order of appointment.

Note: Creates provisions relating to the duties and authority of a guardian and a limited guardian appointed under s. 48.977 (2), stats., as created by this bill. A guardian shall have the duties and authority of a guardian specified in s. 48.023, stats. A limited guardian shall have such duties and authority as specified by the juvenile court's order of appointment or any revised order under s. 48.977 (6), stats., as created by this bill. This subsection specifies that all provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited guardian under s. 48.977 (2), stats., as created by this bill, to the extent those provisions are relevant to the duties or authority of the limited guardian, except as limited by the order of appointment.

(6) Revision of guardianship order. (a) Any person authorized to file a petition under sub. (4) (a) may request a revision in a guardianship order entered under this subsection or sub. (4) (h) 2., or the court may, on its own motion, propose such a revision. The request or court proposal shall set forth in detail the nature of the proposed revision, shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed revision would be in the best interests of the child and shall allege any other information that affects the advisability of the court's disposition.

(b) The court shall hold a hearing on the matter prior to any revision of the guardianship order if the request or court proposal indicates that new information is available which affects the advisability of the court's guardianship order, unless written waivers of objections to the revision are signed by all parties entitled to receive notice under sub. (4) (c) and the court approves the waivers.

(c) If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of the date, place and purpose of the hearing. A copy of the request or proposal shall be attached to the notice. The court may order a revision if, at the hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances and if the court determines that a revision would be in the best interests of the child.

Note: Creates a separate revision of order section applicable to guardianship orders under s. 48.977, stats., as created by this bill. The revision request (or the juvenile court proposal if the juvenile court proposes a revision on its own motion) must set forth in detail the nature of the requested or proposed revision and must allege: (1) facts sufficient to show that there has been a substantial change in circumstances since the last order affecting guardianship was entered; (2) that the revision would be in the best interests of the child; and (3) any other information that affects the advisability of the juvenile court's disposition. The subsection specifies circumstances under which the juvenile court must hold a hearing on the matter, persons to be notified of the date, place and purpose of the hearing and the findings the juvenile court must make before ordering a revision.

(7) Termination of guardianship. (a) Term of guardianship. Unless the court order entered under sub. (4) (h) 2. or (6) specifies that a guardianship under this section be for a lesser period of time, a guardianship under this section shall continue until the child attains the age of 18 years or until terminated by the court, whichever occurs earlier.

(b) Removal for cause. 1. Any person authorized to file a petition under sub. (4) (a) may request that a guardian appointed under sub. (2) be removed for cause or the court may, on its own motion, propose such a removal. The request or court proposal shall allege facts sufficient to show that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian's trust and may allege facts relating to any other information that affects the advisability of the court's disposition.

2. The court shall hold a hearing on the matter unless written waivers of objections to the removal are signed by all parties entitled to receive notice under sub. (4) (c) and the court approves the waivers.

3. If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of the date, place and purpose of the hearing. A copy of the request or court proposal shall be attached to the notice. The court shall remove the guardian for cause if, at the hearing, the court finds that it has been proved by clear and convincing evidence that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian's trust and if the court determines that removal of the guardian would be in the best interests of the child.

(c) Resignation. A guardian appointed under sub. (2) may resign at any time if the resignation is accepted by the court.

(d) Termination on request of parent. 1. A parent of the child may request that a guardianship order entered under sub. (4) (h) 2. or a revised order entered under sub. (6) be terminated. The request shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is willing and able to carry out the duties of a guardian and that the proposed termination of guardianship would be in the best interests of the child.

2. The court shall hold a hearing on the matter unless written waivers of objections to the termination are signed by all parties entitled to receive notice under sub. (4) (c) and the court approves the waivers.

3. If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of the date, place and purpose of the hearing. A copy of the request shall be attached to the notice. The court shall terminate the guardianship if, at the hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and the parent is willing and able to carry out the duties of a guardian and if the court determines that termination of the guardianship would be in the best interests of the child.

(e) Termination on termination of parental rights. If a court enters an order under s. 48.427 (3p) or 48.428 (2) (b), the court shall terminate the guardianship under this section.

(8) Relationship to ch. 880 . (a) This section does not abridge the duties or authority of a guardian appointed under ch. 880.

(b) Nothing in this section prohibits an individual from petitioning a court under ch. 880 for appointment of a guardian.

275,111 Section 111 . 48.981 (1) (a) of the statutes is repealed.

Note: Repeals the definition of “abuse" under s. 48.981, stats. (the child abuse and neglect reporting and investigation statute), to reflect the creation of the definition of “abuse" in the general definitions section of ch. 48 (s. 48.02 (1), stats., as created by this bill).

Under current s. 48.981 (1) (a), stats., “abuse" means any of the following:

1. “Physical injury", as defined in current s. 48.981 (1) (e), stats., inflicted on a child by other than accidental means.

2. Sexual intercourse or sexual contact under s. 940.225, stats. (the general sexual assault statute), 948.02, stats. (sexual assault of a child), or 948.025, stats. (repeated acts of sexual assault against the same child).

3. A violation of s. 948.05, stats. (sexual exploitation of a child).

4. Permitting, allowing or encouraging a child to violate s. 944.30, stats. (prostitution).

5. Emotional damage, as defined in current s. 48.981 (1) (cm), stats.

6. A violation of s. 948.055, stats. (causing a child to view or listen to sexual activity).

The definition of “abuse" in s. 48.02 (1), as created by this bill, is identical to the definition in current s. 48.981 (1) (a), stats., with the following exceptions:

1. The definition of “physical injury", which is a component of the definition of “abuse", is changed by this bill. This bill repeals the definition of “physical injury" in current s. 48.981 (1) (e), stats., and creates a new definition of “physical injury" in s. 48.02 (14m), stats., as created by this bill.

2. The underlying definition of “emotional damage", which is a component of the definition of “abuse", is changed by this bill. The bill repeals the definition of “emotional damage" in current s. 48.981 (1) (cm), stats., and creates a new definition of “emotional damage" in s. 48.02 (5j), stats., as created by this bill.

3. A violation of s. 948.10, stats., (for purposes of sexual arousal or gratification, either causing a child to expose genitals or pubic area or exposing genitals or pubic area to a child) has been added.

275,112 Section 112 . 48.981 (1) (b) of the statutes is repealed.

Note: Repeals the definition of “child" under s. 48.981, stats., as the term is defined in the same way in the current general definitions section of ch. 48 (s. 48.02 (2), stats.).

275,113 Section 113 . 48.981 (1) (cm) of the statutes is repealed.

275,114 Section 114 . 48.981 (1) (e) of the statutes is repealed.

275,115 Section 115 . 48.981 (2m) (c) (intro.) of the statutes is amended to read:

48.981 (2m) (c) (intro.) Except as provided under pars. (d) and (e), the following persons are not required to report as suspected or threatened abuse, as defined under sub. in s. 48.02 (1) (a) 2. (b), sexual intercourse or sexual contact involving a child:

Note: Reflects the repeal of the definition of “abuse" in s. 48.981 (1) (a), stats., and the creation of a definition of “abuse" in s. 48.02 (1), stats., as created by this bill, including provision for sexual intercourse and sexual contact in s. 48.02 (1) (b), stats., as created by this bill.

275,116 Section 116 . 48.981 (3) (c) 4. of the statutes is amended to read:

48.981 (3) (c) 4. The county department shall determine, within 60 days after receipt of a report, whether abuse or neglect has occurred or is likely to occur. The determination shall be based on a preponderance of the evidence produced by the investigation. A determination that abuse or neglect has occurred may not be based solely on the fact that the child's parent, guardian or legal custodian in good faith selects and relies on prayer or other religious means for treatment of disease or for remedial care of the child. In making a determination that emotional damage has occurred, the county department shall give due regard to the culture of the subjects and shall establish that the person alleged to be responsible for the emotional damage is unwilling neglecting, refusing or unable for reasons other than poverty to remedy the harm. This subdivision does not prohibit a court from ordering medical services for the child if the child's health requires it.

275,117 Section 117 . 48.981 (3) (c) 6m. of the statutes is created to read:

48.981 (3) (c) 6m. If a person who is not required under sub. (2) to report makes a report and is a relative of the child, other than the child's parent, that person may make a written request to the county department or licensed child welfare agency under contract with the county department for information regarding what action, if any, was taken to protect the health and welfare of the child who is the subject of the report. A county department or licensed child welfare agency that receives a written request under this subdivision shall, within 60 days after it receives the report or 20 days after it receives the written request, whichever is later, inform the reporter in writing of what action, if any, was taken to protect the health and welfare of the child, unless a court order prohibits that disclosure, and of the duty to keep the information confidential under sub. (7) (e) and the penalties for failing to do so under sub. (7) (f). The county department or licensed child welfare agency may petition the court ex parte for an order prohibiting that disclosure and, if the county department or licensed child welfare agency does so, the time period within which the information must be disclosed is tolled on the date the petition is filed and remains tolled until the court issues a decision. The court may hold an ex parte hearing in camera and shall issue an order granting the petition if the court determines that disclosure of the information would not be in the best interests of the child.

Note: Does the following:

1. Provides that voluntary reporters who are relatives of a child, as defined in s. 48.981 (1) (fm), stats., other than the child's parent, may request in writing that a county department or a licensed child welfare agency under contract with the county department disclose information to them regarding what action, if any, was taken to protect the health and welfare of the child. The voluntary reporters who may request this information are the following: the child's grandparent, stepparent, brother, sister, first cousin, 2nd cousin, nephew, niece, uncle, aunt, stepgrandparent, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, stepuncle or stepaunt.

2. Provides that a county department or a licensed child welfare agency that receives such a request must, within 60 days after it receives the report or 20 days after it receives the written request, whichever is later, inform such a voluntary reporter in writing of: (a) what action, if any, was taken to protect the health and welfare of the child, unless the county department or child welfare agency has obtained a juvenile court order prohibiting such disclosure; and (b) the duty to keep the information confidential and the penalties for failing to do so.

The special committee intends that the information provided to a voluntary reporter be the same information that is typically provided to mandatory reporters, that is, whether the report was substantiated or unsubstantiated and whether services were offered to the child.

3. Permits the county department or licensed child welfare agency to petition the juvenile court ex parte for an order prohibiting such disclosure and, if the county department or licensed child welfare agency does so, provides that the deadline for disclosure is suspended until the juvenile court issues its decision. This Section also provides that the juvenile court may hold an ex parte hearing in camera and must issue an order granting the petition if the juvenile court determines that such disclosure would not be in the best interests of the child.

275,118 Section 118 . 48.981 (3) (cm) of the statutes is amended to read: