Note: With respect to cases in which a juvenile court enters an order terminating
the parental rights of one or both parents and the child is left without a parent: (a)
provides that if a guardian has not been appointed for a child under s. 48.977, stats., as
created by this bill, the court is required to enter one of the dispositions regarding transfer
of guardianship and custody of the child as set forth in current statutes; and (b) provides
that if a guardian has been appointed for a child under s. 48.977, stats., as created by this
bill, the juvenile court may enter one of those dispositions.
SB501, s. 100
16Section
100. 48.428 (2) of the statutes is renumbered 48.428 (2) (a) and
17amended to read:
SB501,79,618
48.428
(2) (a)
When Except as provided in par. (b), when a court places a child
19in sustaining care after an order under s. 48.427
(4), the court shall transfer legal
1custody of the child to the county department or a licensed child welfare agency,
2transfer guardianship of the child to an agency listed in s. 48.427
(3) (3m) (a) 1. to
34. and place the child in the home of a licensed foster parent or licensed treatment
4foster parent with whom the child has resided for 6 months or longer. Pursuant to
5such a placement, this licensed foster parent or licensed treatment foster parent
6shall be a sustaining parent with the powers and duties specified in sub. (3).
SB501, s. 101
7Section
101. 48.428 (2) (b) of the statutes is created to read:
SB501,79,168
48.428
(2) (b) When a court places a child in sustaining care after an order
9under s. 48.427 (4) with a person who has been appointed as the guardian of the child
10under s. 48.977 (2), the court may transfer legal custody of the child to the county
11department or a licensed child welfare agency, transfer guardianship of the child to
12an agency listed in s. 48.427 (3m) (a) 1. to 4. and place the child in the home of a
13licensed foster parent or licensed treatment foster parent with whom the child has
14resided for 6 months or longer. Pursuant to such a placement, that licensed foster
15parent or licensed treatment foster parent shall be a sustaining parent with the
16powers and duties specified in sub. (3).
Note: These Sections amend s. 48.428 (2), stats., relating to the authority of the
juvenile court to place a child in sustaining care, to do all of the following:
1. Renumber s. 48.428 (2), stats., to s. 48.428 (2) (a), stats., and create s. 48.428 (2)
(b), stats.
2. Revise a reference to s. 48.427 (3), stats., in current law to reflect the
renumbering in that subsection by this bill.
3. Create an exception to the mandatory transfer of legal custody and
guardianship when a sustaining care order is entered [s. 48.428 (2) (a), stats., as
renumbered in the bill] to provide that, if a guardian has been appointed for the child
under s. 48.977 (2), stats., as created by this bill, such a transfer of legal custody and
guardianship is permissive.
SB501, s. 102
17Section
102. 48.43 (1) (a) of the statutes is amended to read:
SB501,80,218
48.43
(1) (a) The identity of any agency or individual that
has received
19guardianship of the child or will receive guardianship or custody of the child upon
1termination and the identity of the agency which will be responsible for securing the
2adoption of the child or establishing the child in a permanent family setting.
Note: Revises s. 48.43 (1) (a), stats., relating to a required item in the contents of
an order for TPR, to specify that the order must contain the identity of any agency or
individual that has received guardianship of the child or will receive guardianship or
custody of the child upon TPR. Current law only refers to "will receive" and does not refer
to an agency or individual that has already received guardianship of the child, such as
a guardian under s. 48.977 (2), stats., as created by this bill.
SB501, s. 103
3Section
103. 48.43 (4) of the statutes is amended to read:
SB501,80,104
48.43
(4) A certified copy of the order terminating parental rights shall be
5furnished by the court to the agency given guardianship for placement for adoption
6of the child or to the person or agency given custodianship or guardianship for
7placement of the child in sustaining care
and to the person appointed as the guardian
8of the child under s. 48.977 (2). The court shall, upon request, furnish a certified copy
9of the child's birth certificate and a transcript of the testimony in the termination of
10parental rights hearing to the same person or agency.
Note: Revises s. 48.43 (4), stats., relating to the requirement that the juvenile
court furnish a certified copy of the TPR order to certain persons and entities, to include
the person appointed as the guardian of the child under s. 48.977 (2), stats., as created
by this bill, as one of those persons required to be furnished with a certified copy of the
order.
SB501, s. 104
11Section
104. 48.43 (5) (b) of the statutes is amended to read:
SB501,80,1812
48.43
(5) (b) The court shall hold a hearing to review the permanency plan
13within 30 days after receiving a report under par. (a). At least 10 days before the date
14of the hearing, the court shall provide notice of the time, date and purpose of the
15hearing to the agency that prepared the report, the child's guardian, the child, if he
16or she is 12 years of age or over, and the child's foster parent,
the child's treatment
17foster parent
, other physical custodian described in s. 48.62 (2) or the operator of the
18facility in which the child is living.
Note: Revises s. 48.43 (5) (b), stats., relating to the hearing to review a child's
permanency plan subsequent to a TPR, to require that notice of the time, date and
purpose of the hearing be given to any other physical custodian described in s. 48.62 (2),
stats., of the child. Current law requires notice to be given to the child's foster parent,
treatment foster parent, or the operator of the facility in which the child is living, but does
not refer to any other physical custodian described in s. 48.62 (2), stats.
SB501, s. 105
1Section
105. 48.43 (5) (c) of the statutes is amended to read:
SB501,81,102
48.43
(5) (c) Following the hearing, the court shall make all of the
3determinations specified under s. 48.38 (5) (c), except the determinations relating to
4the child's parents. The court may amend the order under sub. (1) to transfer the
5child's guardianship and custody to any agency specified under s. 48.427
(3) (3m) (a)
61. to 4. which consents to the transfer, if the court determines that the transfer is in
7the child's best interest. If an order is amended, the agency that prepared the
8permanency plan shall revise the plan to conform to the order and shall file a copy
9of the revised plan with the court. Each plan filed under this paragraph shall be
10made a part of the court order.
Note: Revises a reference to s. 48.427 (3), stats., in current law to reflect the
renumbering in that subsection by this bill.
SB501, s. 106
11Section
106. 48.46 (2) of the statutes is amended to read:
SB501,82,212
48.46
(2) A parent who has consented to the termination of his or her parental
13rights under s. 48.41 or who did not contest the petition initiating the proceeding in
14which his or her parental rights were terminated may move the court for relief from
15the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any
16such motion shall be filed within
40 30 days after the entry of the judgment or order
17terminating parental rights, unless the parent files a timely notice of intent to
18pursue relief from the judgment under s. 808.04 (7), in which case the motion shall
19be filed within the time permitted by s. 809.30 (2) (h). A motion under this subsection
20does not affect the finality or suspend the operation of the judgment or order
21terminating parental rights. Motions under this subsection and appeals to the court
1of appeals shall be the exclusive remedies for such a parent to obtain a new hearing
2in a termination of parental rights proceeding.
Note: Provides that a parent who has consented to a TPR or who did not contest
a TPR, may move the juvenile court for relief from the judgment granting TPR on such
grounds as fraud, mistake or newly discovered evidence within 30, rather than 40, days
after the entry of the TPR judgment or order.
SB501, s. 107
3Section
107. 48.62 (2) of the statutes is amended to read:
SB501,82,184
48.62
(2) A relative as defined in s. 48.02 (15) or as specified in s. 49.19 (1) (a)
5or a guardian of a child, who provides care and maintenance for a child, is not
6required to obtain the license specified in this section. The department, county
7department or licensed child welfare agency as provided in s. 48.75 may issue a
8license to operate a foster home or a treatment foster home to a relative who has no
9duty of support under s. 49.90 (1) (a) and who requests a license to operate a foster
10home or treatment foster home for a specific child who is either placed by court order
11or who is the subject of a voluntary placement agreement under s. 48.63. The
12department, a county department or a licensed child welfare agency may, at the
13request of a guardian appointed under
s. 48.977 or ch. 880, license the guardian's
14home as a foster home or treatment foster home for the guardian's minor ward who
15is living in the home and who is placed in the home by court order. Relatives with
16no duty of support and guardians appointed under
s. 48.977 or ch. 880 who are
17licensed to operate foster homes or treatment foster homes are subject to the
18department's licensing rules.
Note: Current s. 48.62 (2), stats., relating to licensing of foster homes, specifies all
of the following, in pertinent part:
1. That the department of health and social services (DHSS), a county department
of human services or social services (county department) or a licensed child welfare
agency may, at the request of a guardian appointed under ch. 880, stats., license the
guardian's home as a foster home or treatment foster home for the guardian's minor ward
who is living in the home and who is placed in the home by an order of the juvenile court.
2. That relatives with no duty of support and guardians appointed under ch. 880,
stats., who are licensed to operate foster homes or treatment foster homes are subject to
the licensing rules.
This Section adds guardians appointed under s. 48.977, stats., as created by this
bill, to the provisions in s. 48.62 (2), stats., which currently refer only to guardians
appointed under ch. 880, stats.
SB501, s. 108
1Section
108. 48.831 (title) of the statutes is amended to read:
SB501,83,3
248.831 (title)
Appointment of guardian for child without a living parent
3for adoptability finding.
SB501, s. 109
4Section
109. 48.831 (1) of the statutes is amended to read:
SB501,83,115
48.831
(1) Type of guardianship. This section may be used for the appointment
6of a guardian of a child who does not have a living parent if a finding as to the
7adoptability of a child is sought.
Chapter Except as provided in s. 48.977, ch. 880
8applies to the appointment of a guardian for a child who does not have a living parent
9for all other purposes. An appointment of a guardian of the estate of a child who does
10not have a living parent shall be conducted in accordance with the procedures
11specified in ch. 880.
Note: Current s. 48.831 (1), stats., specifies that except for appointment of a
guardian for a child without a living parent for purposes of an adoptability finding
regarding the child (which appointment and procedure are done under s. 48.831, stats.),
ch. 880, stats., applies to the appointment of a guardian for a child who does not have a
living parent for all other purposes. This Section provides that, except for guardianships
under s. 48.977, stats., as created by this bill, and guardianships under current s. 48.831,
stats., ch. 880, stats., applies to the appointment of a guardian for a child who does not
have a living parent for all other purposes.
SB501, s. 110
12Section
110. 48.977 of the statutes is created to read:
SB501,83,15
1348.977 Appointment of relatives as guardians for certain children in
14need of protection or services. (1) Definition. In this section, "relative" means
15a relative as defined in s. 48.02 (15) or as specified in s. 49.19 (1) (a) 2. a.
SB501,83,18
16(2) Type of guardianship. This section may be used for the appointment of a
17relative of a child as a guardian of the person for the child if the court finds all of the
18following:
SB501,84,5
1(a) That the child has been adjudged to be in need of protection or services
2under s. 48.13 (1), (2), (3), (3m), (4), (5), (8), (9), (10), (10m), (11) or (11m) or 938.13
3(4) and been placed, or continued in a placement, outside of his or her home pursuant
4to one or more court orders under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357,
5938.363 or 938.365 for a cumulative total period of one year or longer.
SB501,84,9
6(b) That the person nominated as the guardian of the child is a relative of the
7child with whom the child has been placed and that it is likely that the child will
8continue to be placed with that relative for an extended period of time or until the
9child attains the age of 18 years.
SB501,84,12
10(c) That, if appointed, it is likely that the relative would be willing and able to
11serve as the child's guardian for an extended period of time or until the child attains
12the age of 18 years.
SB501,84,1413
(d) That it is not in the best interests of the child that a petition to terminate
14parental rights be filed with respect to the child.
SB501,84,17
15(e) That the child's parent is neglecting, refusing or unable to carry out the
16duties of a guardian or, if the child has 2 parents, both parents are neglecting,
17refusing or unable to carry out the duties of a guardian.
SB501,84,2318
(f) That the agency primarily responsible for providing services to the child
19under a court order has made reasonable efforts to make it possible for the child to
20return to his or her home but that reunification of the child with the child's parent
21or parents is unlikely or contrary to the best interests of the child and that further
22reunification efforts are unlikely to be made or are contrary to the best interests of
23the child.
Note: Creates a new section in ch. 48 relating to the appointment of a relative as
a guardian for a child adjudged CHIPS because the child: (1) is without a parent or
guardian; (2) has been abandoned; (3) has been the victim of sexual or physical abuse; (4)
is at substantial risk of becoming the victim of sexual or physical abuse based on
information that another child in the home has been the victim of such abuse; (5) has a
parent or guardian who signs a petition requesting juvenile court jurisdiction and who
is unable or needs assistance to care for, control or provide necessary special treatment
or care for the child; (6) has been placed for care or adoption in violation of law; (7) is
receiving inadequate care during the period of time a parent is missing, incarcerated,
hospitalized or institutionalized; (8) is at least 12 years of age, signs a petition requesting
juvenile court jurisdiction and is in need of special treatment or care which the parent,
guardian or legal custodian is unwilling, neglecting, unable or needs assistance to
provide; (9) has a parent, guardian or legal custodian 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; (10) has a parent, guardian or legal custodian who is at
substantial risk of neglecting, refusing or being unable, for reasons other than poverty,
to provide necessary care because that person has seriously endangered the physical
health of another child in the home; (11) is suffering emotional damage for which the
parent, guardian or legal custodian is neglecting, refusing or unable to provide
treatment; or (12) is suffering from an alcohol or other drug abuse impairment, exhibited
to a severe degree, for which the parent, guardian or legal custodian is neglecting,
refusing or unable to provide treatment. [In describing the grounds for CHIPS
jurisdiction which are listed in this Section, the
Note reflects the modifications of several
of these grounds as set forth in this bill. This Section, however, also applies to a child
adjudged CHIPS under any of the listed grounds prior to those modifications.]
In order to have a guardian appointed under this new section, the juvenile court
must find all of the following:
1. That the child has been placed, or continued in a placement, outside of his or her
home pursuant to one or more juvenile court orders under s. 48.345 or 938.345, stats.
(disposition of child adjudged CHIPS), 48.357 or 938.357, stats. (change in placement),
48.363 or 938.363, stats. (revision of dispositional order), or 48.365, stats. (extension of
dispositional order), for a cumulative period of one year or longer.
2. That all of the items set forth in s. 48.977 (2) (b) to (f), stats., as created by this
bill, have been met, including that it is likely that the child will continue to be placed with
his or her relative-guardian for an extended period of time or until the child attains the
age of 18 years; that the relative would 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; that it is not
in the best interests of the child that a TPR petition be filed with respect to the child; that
the child's parent is, or if the child has 2 parents that the parents are, neglecting, refusing
or unable to carry out the duties of a guardian; and that the agency responsible for
providing services to the child has made reasonable efforts to return the child to his or
her home but that reunification with the child's parent or parents is unlikely or contrary
to the best interests of the child.
SB501,85,4
1(3) Designation as a permanent placement. If a court appoints a guardian for
2a child under sub. (2), the court may designate the child's placement with that
3guardian as the child's permanent foster home or treatment foster home placement
4for purposes of s. 48.368 (2).
Note: Permits a juvenile court to designate the child's placement with a guardian
appointed under new s. 48.977 (2), stats., as the child's permanent foster home or
treatment foster home placement for the purpose of making an exception in s. 48.368 (2),
stats., as created by this bill, to the provision in s. 48.355 (4) (a), stats., that CHIPS
dispositional orders, revisions of dispositional orders and extensions of dispositional
orders terminate at the end of one year unless the juvenile court specifies a shorter time
period.
SB501,86,3
1(4) Procedure and disposition. (a)
Who may file petition. Any of the following
2persons may file a petition for the appointment of a guardian for a child under sub.
3(2):
SB501,86,44
1. The child or the child's guardian or legal custodian.
SB501,86,55
2. The child's guardian ad litem.
SB501,86,66
3. The child's parent.
SB501,86,8
74. The relative with whom the child is placed if the relative is nominated as the
8guardian of the child in the petition.
SB501,86,99
5. The department.
SB501,86,1010
6. A county department.
SB501,86,12
117. A licensed child welfare agency that has been assigned primary
12responsibility for providing services to the child under a court order.
SB501,86,1313
8. The person representing the interests of the public under s. 48.09.
SB501,86,1714
(b)
Contents of petition. A proceeding for the appointment of a guardian for a
15child under sub. (2) shall be initiated by a petition which shall be entitled "In the
16interest of .... (child's name), a person under the age of 18" and shall set forth all of
17the following with specificity:
SB501,86,1818
1. The name, birth date and address of the child.
SB501,86,20
192. The names and addresses of the child's parent or parents, guardian and legal
20custodian.
SB501,87,2
213. The date the child was adjudged in need of protection or services under s.
2248.13 (1), (2), (3), (3m), (4), (5), (8), (9), (10), (10m), (11) or (11m) or 938.13 (4) and the
23dates that the child has been placed, or continued in a placement, outside of his or
1her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363,
248.365, 938.345, 938.357, 938.363 or 938.365.
SB501,87,4
34. A statement of the facts and circumstances which the petition alleges
4establish that the conditions specified in sub. (2) (b) to (f) are met.
SB501,87,65
5. A statement of whether the proceedings are subject to the uniform child
6custody jurisdiction act under ch. 822.
SB501,87,87
6. A statement of whether the child may be subject to the federal Indian child
8welfare act,
25 USC 1911 to
1963.
SB501,87,119
(c)
Service of petition and notice. 1. The petitioner shall cause the petition and
10notice of the time and place of the hearing under par. (d) to be served upon all of the
11following persons:
SB501,87,1212
a. The child if the child is 12 years of age or older.
SB501,87,1313
b. The child's guardian and legal custodian.
SB501,87,1414
c. The child's guardian ad litem.
SB501,87,1515
d. The child's counsel.
SB501,87,1616
e. The child's parent.
SB501,87,1717
f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.
SB501,87,19
18g. The relative with whom the child is placed if the relative is nominated as the
19guardian of the child in the petition.
SB501,87,2020
h. The person representing the interests of the public under s. 48.09.
SB501,87,2221
i. The agency primarily responsible for providing services to the child under a
22court order.
SB501,88,4
232. Service shall be made by 1st class mail at least 7 days before the hearing or
24by personal service at least 7 days before the hearing or, if with reasonable diligence
25a party specified in subd. 1. cannot be served by mail or personal service, service shall
1be made by publication of a notice published as a class 1 notice under ch. 985. In
2determining which newspaper is likely to give notice as required under s. 985.02 (1),
3the petitioner shall consider the residence of the party, if known, or the residence of
4the relatives of the party, if known, or the last-known location of the party.
SB501,88,85
(d)
Fact-finding hearing. The court shall hold a fact-finding hearing on the
6petition within 30 days after the petition is filed, at which any party may present
7evidence relevant to the issue of whether the conditions specified in sub. (2) (a) to (f)
8have been met.
SB501,88,14
9(e)
Court report. The court shall order the person or agency primarily
10responsible for providing services to the child under a court order to file with the
11court a report containing the written summary under s. 48.38 (5) (e) and as much
12information relating to the appointment of a guardian as is reasonably
13ascertainable. The agency shall file the report at least 48 hours before the date of
14the dispositional hearing under par. (f).
SB501,88,1915
(f)
Dispositional hearing. If the court, at the conclusion of the fact-finding
16hearing, finds by clear and convincing evidence that the conditions specified in sub.
17(2) (a) to (f) have been met, the court shall immediately proceed to a dispositional
18hearing unless an adjournment is requested. Any party may present evidence,
19including expert testimony, relevant to the disposition.
SB501,88,24
20(g)
Dispositional factors. In determining the appropriate disposition under this
21section, the best interests of the child shall be the prevailing factor to be considered
22by the court. In making a decision about the appropriate disposition, the court shall
23consider any report submitted under par. (e) and shall consider, but not be limited
24to, all of the following:
SB501,88,2525
1. Whether the relative would be a suitable guardian of the child.
SB501,89,2
12. The willingness and ability of the relative to serve as the child's guardian for
2an extended period of time or until the child attains the age of 18 years.
SB501,89,33
3. The wishes of the child.
SB501,89,64
(h)
Disposition. After receiving any evidence relating to the disposition, the
5court shall enter one of the following dispositions within 10 days after the
6dispositional hearing:
SB501,89,9
71. A disposition dismissing the petition if the court determines that
8appointment of the relative as the child's guardian is not in the best interests of the
9child.
SB501,89,1310
2. A disposition ordering that the relative with whom the child has been placed
11be appointed as the child's guardian under sub. (5) (a) or limited guardian under sub.
12(5) (b), if the court determines that such an appointment is in the best interests of
13the child.
SB501,89,1614
(i)
Effect of disposition on permanency plan review process. After a disposition
15under par. (h), the child's permanency plan shall continue to be reviewed under s.
1648.38 (5), if applicable.
Note: Sets forth the procedures applicable to appointment of a relative as a
guardian for certain children in need of protection or services, as specified in s. 48.977 (2),
stats., as created by this bill, including: (1) who may file the petition; (2) the contents of
the petition; (3) service of the petition and notice of the time and place of the fact-finding
hearing; (4) requirement to hold a fact-finding hearing; (5) factors to be considered in the
disposition; (6) the contents of a report to the juvenile court to be submitted by the person
or agency primarily responsible for providing services to the child at least 48 hours prior
to the dispositional hearing; (7) the possible dispositions relating to the guardianship
petition; and (8) the effect of the disposition on the permanency plan review process [the
bill specifies that the plan must continue to be reviewed under s. 48.38 (5), stats., if the
child's case continues to be subject to the provisions of s. 48.38, stats., regarding
permanency planning].