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48.433(8)(b) (b) If a birth parent is known to be dead, the department, or agency contracted with under sub. (11), in addition to the information provided under par. (a), shall provide the requester with any nonidentifying social history information about the deceased parent on file with the department or agency.
48.433(8m) (8m) If the department, or agency contracted with under sub. (11), may not disclose the information requested under this section, it shall provide the requester with any nonidentifying social history information about either of the birth parents that it has on file.
48.433(9) (9) The requester may petition the circuit court to order the department or agency designated by the department to disclose any information that may not be disclosed under this section. The court shall grant the petition for good cause shown.
48.433(10) (10) Any person, including this state or any political subdivision of this state, who participates in good faith in any requirement of this section shall have immunity from any liability, civil or criminal, that results from his or her actions. In any proceeding, civil or criminal, the good faith of any person participating in the requirements of this section shall be presumed.
48.433(11) (11) The department shall promulgate rules to implement this section and may contract with an agency to administer this section.
48.435 48.435 Custody of children. The mother of a nonmarital child has legal custody of the child unless the court grants legal custody to another person or transfers legal custody to an agency.
48.435 History History: 1979 c. 330; 1983 a. 447.
subch. IX of ch. 48 SUBCHAPTER IX
JURISDICTION OVER PERSON 17 OR OLDER
48.44 48.44 Jurisdiction over persons 17 or older.
48.44(1) (1) The court has jurisdiction over persons 17 or older as provided under ss. 48.355 (4) and 48.45 and as otherwise specifically provided in this chapter.
48.44(2) (2) The court has jurisdiction over a person subject to an order under s. 48.366 for all matters relating to that order.
48.45 48.45 Orders applicable to adults.
48.45(1) (1)
48.45(1)(a)(a) If in the hearing of a case of a child alleged to be in a condition described in s. 48.13 it appears that any person 17 or older has been guilty of contributing to, encouraging, or tending to cause by any act or omission, such condition of the child, the judge may make orders with respect to the conduct of such person in his or her relationship to the child, including orders determining the ability of the person to provide for the maintenance or care of the child and directing when, how and where funds for the maintenance or care shall be paid.
48.45(1)(b) (b) An act or failure to act contributes to a condition of a child as described in s. 48.13, although the child is not actually adjudicated to come within the provisions of s. 48.13, if the natural and probable consequences of that act or failure to act would be to cause the child to come within the provisions of s. 48.13.
48.45(1m) (1m)
48.45(1m)(a)(a) In a proceeding in which a child has been found to be in need of protection or services under s. 48.13, the judge may order the child's parent, guardian or legal custodian to comply with any conditions determined by the judge to be necessary for the child's welfare. An order under this paragraph may include an order to participate in mental health treatment, anger management, individual or family counseling or parent training and education and to make a reasonable contribution, based on ability to pay, toward the cost of those services.
48.45(1m)(b) (b) A judge may not order inpatient treatment under par. (a) for a child's parent, guardian or legal custodian. All inpatient treatment commitments or admissions must be conducted in accordance with ch. 51.
48.45(2) (2) No order under sub. (1) (a) or (1m) (a) may be entered until the person who is the subject of the contemplated order is given an opportunity to be heard on the contemplated order. The court shall cause notice of the time, place and purpose of the hearing to be served on the person personally at least 10 days before the date of hearing. The procedure in these cases shall, as far as practicable, be the same as in other cases in the court. At the hearing the person may be represented by counsel and may produce and cross-examine witnesses. Any person who fails to comply with any order issued by a court under sub. (1) (a) or (1m) (a) may be proceeded against for contempt of court. If the person's conduct involves a crime, the person may be proceeded against under the criminal law.
48.45(3) (3) If it appears at a court hearing that any person 17 or older has violated s. 948.40, the judge shall refer the record to the district attorney for criminal proceedings as may be warranted in the district attorney's judgment. This subsection does not prevent prosecution of violations of s. 948.40 without the prior reference by the judge to the district attorney, as in other criminal cases.
48.45 Annotation Involuntary commitment was not authorized by this section. Contempt In Interest of J. S., 137 W (2d) 217, 404 NW (2d) 79 (Ct. App. 1987).
subch. X of ch. 48 SUBCHAPTER X
REHEARING AND APPEAL
48.46 48.46 New evidence; relief from judgment terminating parental rights.
48.46(1)(1) Except as provided in sub. (2), the parent, guardian or legal custodian of the child or the child whose status is adjudicated by the court may at any time within one year after the entering of the court's order petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's original adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing.
48.46(2) (2) A parent who has consented to the termination of his or her parental rights under s. 48.41 or who did not contest the petition initiating the proceeding in which his or her parental rights were terminated may move the court for relief from the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any such motion shall be filed within 30 days after the entry of the judgment or order terminating parental rights, unless the parent files a timely notice of intent to pursue relief from the judgment under s. 808.04 (7m), in which case the motion shall be filed within the time permitted by s. 809.107 (5). A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. Motions under this subsection and appeals to the court of appeals shall be the exclusive remedies for such a parent to obtain a new hearing in a termination of parental rights proceeding.
48.46 History History: 1977 c. 449; 1979 c. 300; 1987 a. 383; Sup. Ct. Order, 146 W (2d) xxxiii (1988); 1995 a. 275.
48.46 Note Judicial Council Note, 1988: Sub. (2) limits the remedies for relief from a judgment or order terminating parental rights when the aggrieved party is a parent whose rights were terminated by consent or who has failed to contest the petition. The motion for relief from the judgment or order must be filed within 40 days after entry of the judgment or order terminating parental rights, unless the appellate process is timely initiated, in which case the motion must be filed within 60 days after service of the transcript. The court must grant a rehearing upon a prima facie showing of one or more of the following grounds: mistake, inadvertence, surprise or excusable neglect; newly discovered evidence justifying a new hearing under s. 805.15 (3); fraud, misrepresentation or other misconduct of an adverse party; the judgment or order is void; the judgment or order is based upon a prior judgment which has been reversed or otherwise vacated. [Re Order effective Jan. 1, 1989]
48.46 Annotation An affidavit by the mother that she consented under duress and one by her attorney as to what he expected to prove are not sufficient to reopen the case. Schroud v. Milw. County Dept. of Pub. Welfare, 53 W (2d) 650, 193 NW (2d) 671.
subch. XI of ch. 48 SUBCHAPTER XI
AUTHORITY
48.48 48.48 Authority of department of health and family services. The department of health and family services shall have authority:
48.48(1) (1) To promote the enforcement of the laws relating to nonmarital children and children in need of protection or services including developmentally disabled children and to take the initiative in all matters involving the interests of such children where adequate provision therefor is not made. This duty shall be discharged in cooperation with the courts, county departments, licensed child welfare agencies and with parents and other individuals interested in the welfare of children.
48.48(2) (2) To assist in extending and strengthening child welfare services with appropriate federal agencies and in conformity with the federal social security act and in cooperation with parents, other individuals and other agencies so that all children needing such services are reached.
48.48(3) (3) To accept guardianship of children when appointed by the court, and to provide special treatment and care when directed by the court. A court may not direct the department to administer psychotropic medications to children who receive special treatment or care under this subsection.
48.48(3m) (3m) To accept appointment by an American Indian tribal court in this state as guardian of a child for the purpose of making an adoptive placement for the child if all of the following conditions exist:
48.48(3m)(a) (a) The child does not have parents or a guardian or the parental rights to the child have been terminated by a tribal court in accordance with procedures that are substantially equivalent to the procedures specified in subch. VIII.
48.48(3m)(b) (b) The tribal court has transferred the guardianship or legal custody, or both, of the child to the department, if the child does not have parents or a guardian.
48.48(3m)(c) (c) The tribal court's judgment for termination of parental rights identifies the department as the agency that will receive guardianship or legal custody, or both, of the child upon termination, if the parental rights to the child have been terminated.
48.48(3m)(d) (d) The tribal court has signed a written contract that addresses federal and state law and that provides that the tribal court will accept the return of the legal custody or the legal custody and guardianship of the child if the department petitions the tribal court to do so under s. 48.485.
48.48(7) (7) To accept guardianship of children when appointed by the court.
48.48(8) (8) To place children under its guardianship for adoption.
48.48(8m) (8m) To enter into agreements with American Indian tribes in this state to implement the Indian child welfare act, 25 USC 1911 to 1963.
48.48(9) (9) To license foster homes or treatment foster homes as provided in s. 48.66 (1) for its own use or for the use of licensed child welfare agencies or, if requested to do so, for the use of county departments.
48.48(9m) (9m) To license shelter care facilities as provided in s. 48.66 (1).
48.48(10) (10) To license child welfare agencies and day care centers as provided in s. 48.66 (1).
48.48(11) (11) When notified of the birth or expected birth of a child who is or is likely to be a nonmarital child, to see that the interests of the child are safeguarded, that steps are taken to establish the child's paternity and that there is secured for the child, if possible, the care, support and education the child would receive if he or she were a marital child.
48.48(12) (12)
48.48(12)(a)(a) To enter into an agreement to assist in the cost of care of a child after legal adoption when the department has determined that such assistance is necessary to assure the child's adoption. Agreements under this paragraph shall be made in accordance with s. 48.975. Payments shall be made from the appropriation under s. 20.435 (3) (dd).
48.48(12)(b) (b) This subsection shall be administered by the department according to criteria, standards and review procedures which it shall establish.
48.48(13) (13) To promulgate rules for the payment of an allowance to children in its institutions and a cash grant to a child being discharged from its institutions.
48.48(15) (15) To license group homes as provided in s. 48.625.
48.48(16) (16) To establish and enforce standards for services provided under s. 48.345.
48.48 Annotation Allegation that department failed to adopt rules or to exercise supervision over local social service agency and that those failures led to deprivation of child custody without due process stated cause of action for deprivation of civil rights. Roe v. Borup, 500 F Supp. 127 (1980).
48.48 Annotation The state has ultimate foster care responsibility, and dismissal of a 42 USC 1983 action against the state for civil rights violations by a county agency was not appropriate. Jeanine B. by Blondin v. Thompson, 877 F Supp. 1268 (1995).
48.485 48.485 Transfer of tribal children to department for adoption. If the department accepts guardianship or legal custody or both from an American Indian tribal court under s. 48.48 (3m), the department shall seek a permanent adoptive placement for the child. If a permanent adoptive placement is not in progress within 2 years after entry of the termination of parental rights order by the tribal court, the department may petition the tribal court to transfer legal custody or guardianship of the child back to the tribe.
48.485 History History: 1989 a. 31.
48.52 48.52 Facilities for care of children in care of department.
48.52(1)(1)Facilities maintained or used for children. The department may maintain or use the following facilities for children in its care:
48.52(1)(a) (a) Receiving homes to be used for the temporary care of children;
48.52(1)(b) (b) Foster homes or treatment foster homes;
48.52(1)(c) (c) Group homes; and
48.52(1)(f) (f) Other facilities deemed by the department to be appropriate for the child, except that no state funds may be used for the maintenance of a child in the home of a parent or relative eligible for aid under s. 49.19 if such funds would reduce federal funds to this state.
48.52(2) (2)Use of other facilities.
48.52(2)(a)(a) In addition to the facilities and services described in sub. (1), the department may use other facilities and services under its jurisdiction. The department may also contract for and pay for the use of other public facilities or private facilities for the care and treatment of children in its care. Placements in institutions for the mentally ill or developmentally disabled shall be made in accordance with ss. 48.14 (5) and 48.63 and ch. 51.
48.52(2)(b) (b) Public facilities are required to accept and care for persons placed with them by the department in the same manner as they would be required to do had the legal custody of these persons been transferred by a court of competent jurisdiction. Nothing in this subsection shall be construed to require any public facility to serve the department inconsistently with its functions or with the laws and regulations governing their activities; or to give the department authority to use any private facility without its consent.
48.52(2)(c) (c) The department shall have the right to inspect all facilities it is using and to examine and consult with persons whom the department has placed in that facility.
48.52(4) (4)Coeducational programs and institutions. The department may institute and maintain coeducational programs and institutions under this chapter.
48.52 Annotation A juvenile in the custody of the department may not be transferred to an adult-serving penal institution. State ex rel. Edwards v. McCauley, 50 W (2d) 597, 184 NW (2d) 908.
48.52 Annotation A detention home is not one of the other facilities. State ex rel. Harris v. Larson, 64 W (2d) 521, 219 NW (2d) 335.
48.52 Annotation See note to 48.62, citing 63 Atty. Gen. 34.
48.52 Annotation Foster homes leased by the department pursuant to this section are immune from local zoning to the extent that the zoning conflicts with the department's possessory use of property under ch. 48, subject to 13.48 (13). The lessor remains responsible for property tax. 65 Atty. Gen. 93.
48.547 48.547 Juvenile alcohol and other drug abuse pilot program.
48.547(1)(1)Legislative findings and purpose. The legislature finds that the use and abuse of alcohol and other drugs by children is a state responsibility of statewide dimension. The legislature recognizes that there is a lack of adequate procedures to screen, assess and treat children for alcohol and other drug abuse. To reduce the incidence of alcohol and other drug abuse by children, the legislature deems it necessary to experiment with solutions to the problems of the use and abuse of alcohol and other drugs by children by establishing a juvenile alcohol and other drug abuse pilot program in a limited number of counties. The purpose of the program is to develop intake and court procedures that screen, assess and give new dispositional alternatives for children with needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs who come within the jurisdiction of a court assigned to exercise jurisdiction under this chapter and ch. 938 in the pilot counties selected by the department.
48.547(2) (2)Department responsibilities. Within the availability of funding under s. 20.435 (7) (mb) that is available for the pilot program, the department shall select counties to participate in the pilot program. Unless a county department of human services has been established under s. 46.23 in the county that is seeking to implement a pilot program, the application submitted to the department shall be a joint application by the county department that provides social services and the county department established under s. 51.42 or 51.437. The department shall select counties in accordance with the request for proposal procedures established by the department. The department shall give a preference to county applications that include a plan for case management. The counties selected shall begin the pilot program on January 1, 1989.
48.547(3) (3)Multidisciplinary screen. By September 1, 1988, the department shall develop a multidisciplinary screen for the pilot program. The screen shall be used by an intake worker to determine whether or not a child is in need of an alcohol or other drug abuse assessment. The screen shall also include indicators that screen children for:
48.547(3)(a) (a) Family dysfunction.
48.547(3)(b) (b) School or truancy problems.
48.547(3)(c) (c) Mental health problems.
48.547(3)(d) (d) Delinquent behavior patterns.
48.547(4) (4)Assessment criteria. By September 1, 1988, the department shall develop uniform alcohol and other drug abuse assessment criteria to be used in the pilot program under ss. 48.245 (2) (a) 3. and 48.295 (1). An approved treatment facility that assesses a person under s. 48.245 (2) (a) 3. or 48.295 (1) may not also provide the person with treatment unless the department permits the approved treatment facility to do both in accordance with the criteria established by rule by the department.
48.547 History History: 1987 a. 339; 1989 a. 31; 1993 a. 213; 1995 a. 77, 448.
48.548 48.548 Multidisciplinary screen and assessment criteria. The department shall make the multidisciplinary screen developed under s. 48.547 (3) and the assessment criteria developed under s. 48.547 (4) available to all counties.
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