LRB-2081/1
GMM:kjf:jf
2003 - 2004 LEGISLATURE
March 25, 2003 - Introduced by Joint Legislative Council. Referred to
Committee on Children and Families.
AB201,2,2
1An Act to repeal 48.57 (3p) (h) 5.;
to renumber 48.57 (3m) (am) 2.;
to renumber
2and amend 48.57 (3m) (am) 1., 48.57 (3m) (d), 48.57 (3n) (d) and 49.155 (5);
to
3amend 48.57 (3m) (am) 4. and 4m., 48.57 (3m) (f), 48.57 (3m) (g) 2., 48.57 (3n)
4(am) 4. and 4m., 48.57 (3n) (f), 48.57 (3n) (g) 2., 48.57 (3p) (d), 48.57 (3p) (e) 4.,
548.57 (3p) (fm) 1., 48.57 (3p) (fm) 1m., 48.57 (3p) (fm) 2., 48.57 (3p) (fm) 2m.,
648.57 (3p) (g) (intro.), 48.57 (3p) (h) 1., 48.57 (3p) (h) 3., 48.57 (3p) (hm), 48.57
7(3t) and 880.08 (3) (am) (intro.);
to repeal and recreate 48.57 (3p) (h) 2. and
848.57 (3p) (h) 4.; and
to create 48.57 (3m) (am) 1. b., 48.57 (3m) (d) 1., 2. and
93., 48.57 (3n) (d) 1. and 2., 48.57 (3r), 48.979 and 49.155 (5) (c) and (d) of the
10statutes;
relating to: kinship care, notice of guardianship proceedings,
11creating a health services consent form, requesting the Joint Legislative
1Council to study guardianship and legal custody, granting rule-making
2authority, and providing penalties.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
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:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's Special Committee on Relative Caregivers. The special committee
was directed to study: (1) current law relating to relative caregivers under the Children's
Code and under current law relating to guardianship and kinship care; (2) relatives who
care for children under an informal agreement between the child's parent and the relative
and whether such relatives should be granted decision-making authority with respect
to the child's care; and (3) third-party visitation law and enforcement of third-party
visitation orders.
The bill does the following:
1. Makes the following changes to current law relating to kinship care:
• Modifies the eligibility criteria so that a child does not need to be a child or
juvenile in need of protection or services (CHIPS or JIPS) in order for a kinship care
relative to receive payments. In addition, a county department of human services or
social services (county department) or, in Milwaukee County, the department of health
and family services (DHFS) must find, for purposes of determining eligibility for kinship
care payments, that a child needs to be placed with the relative if the child is CHIPS or
JIPS or if the child has lived with the relative for 2 years or longer and the placement is
voluntary and appropriate.
• Limits the arrests that a county department or DHFS may consider in conducting
a criminal background check for purposes of determining eligibility for kinship care
payments to arrests for which a criminal charge is pending.
• Requires a county department or DHFS to provide notice of discontinuation of
kinship care payments to a relative at least 10 days before the payments are to be
discontinued along with notice of the relative's rights to appeal the discontinuation and
to continue receiving payments pending a hearing on the appeal of the discontinuation
decision.
• Provides that a kinship care relative who receives notice that his or her payments
are being discontinued may continue receiving payments pending a hearing on the
appeal of the discontinuation decision if the relative requests a hearing before the
payments are discontinued.
• Requires a county department or DHFS to determine that a kinship care
relative's conviction record is likely to adversely affect the child or the relative's ability
to care for the child in order to deny payments on the basis of the conviction record. This
change also applies to conviction records of employees of the relative who would have
regular contact with the child and adult residents of the relative's home.
• Requires DHFS to provide applicants who are denied kinship care payments on
the basis of a conviction record the right to a fair hearing to appeal the denial.
• Prohibits the department of workforce development from requiring a kinship
care relative to pay a copayment for child care subsidies received on behalf of a child for
whom the relative is receiving kinship care payments.
• Permits DHFS to request supplemental funding for kinship care payments if
funding for kinship care payments is insufficient.
• Requires DHFS to study methods to manage funding for kinship care payments
in order to minimize the need for waiting lists for those payments and to report the results
of its study to the legislature by June 30, 2004.
2. Creates a health services consent form that parents may use to transfer
decision-making authority for routine and emergency health services to an adult with
whom a child lives.
3. Requires notice of a hearing to appoint a guardian to be published as a class 1
notice (i.e., published once) instead of as a class 3 notice (i.e., published 3 times), if
personal service is not possible.
4. Requests the joint legislative council to study state laws regarding guardianship
and legal custody of minors and the rights and responsibilities of guardians and legal
custodians.
AB201, s. 1
1Section
1
. 48.57 (3m) (am) 1. of the statutes is renumbered 48.57 (3m) (am)
21. (intro.) and amended to read:
AB201,3,93
48.57
(3m) (am) 1. (intro.) The kinship care relative applies to the county
4department or department for payments under this subsection and the county
5department or department determines that there is a need for the child to be placed
6with the kinship care relative and that the placement with the kinship care relative
7is in the best interests of the child.
The county department or department shall
8determine that there is a need for the child to be placed with the kinship care relative
9if any of the following conditions is met:
AB201, s. 2
10Section
2
. 48.57 (3m) (am) 1. b. of the statutes is created to read:
AB201,3,1411
48.57
(3m) (am) 1. b. The child has been living with the kinship care relative
12for 2 years or longer, and the county department or department determines that the
13child's parents have consented to the living arrangement and that the living
14arrangement is not contrary to the health, safety, or welfare of the child.
AB201, s. 3
1Section
3
. 48.57 (3m) (am) 2. of the statutes is renumbered 48.57 (3m) (am)
21. a.
Note: Under current law, one of the criteria required for receipt of kinship care
payments is a finding that the child in the relative's care is a child or juvenile in need of
protection or services (CHIPS or JIPS) or would be at risk of being CHIPS or JIPS if the
child were to remain in the child's home. Section 3 eliminates that requirement for
kinship care payment eligibility. Also, under current law, a county department of human
services or social services (county department) or, in Milwaukee County, the department
of health and family services (DHFS), must find that there is a need for the child to be
placed with the kinship care relative and that placement with the relative is in the best
interests of the child in order for a relative to receive kinship care payments. Sections
1 and 3 require a county department or DHFS to find that a child meets the eligibility
requirement that there is a need for the child to be placed with the kinship care relative
if the county department or DHFS determines that the child is CHIPS or JIPS or would
be at risk of being CHIPS or JIPS if the child were to remain in the child's home.
Also, under Section 2, if a child has been living with a relative for 2 years or longer
and the county department or DHFS determines that the child's parents have consented
to the living arrangement and that the living arrangement is not contrary to the child's
health, safety, or welfare, the county department or DHFS must find that there is a need
for the child to be placed with the relative.
AB201, s. 4
3Section
4
. 48.57 (3m) (am) 4. and 4m. of the statutes are amended to read:
AB201,4,114
48.57
(3m) (am) 4. The county department or department conducts a
5background investigation under sub. (3p) of the kinship care relative, any employee
6and prospective employee of the kinship care relative who has or would have regular
7contact with the child for whom the payments would be made
, and any other adult
8resident of the kinship care relative's home to determine if the kinship care relative,
9employee, prospective employee
, or adult resident has any arrests
for which a
10criminal charge is pending or convictions that could adversely affect the child or the
11kinship care relative's ability to care for the child.
AB201,5,312
4m. Subject to sub. (3p) (fm) 1. and 2., the kinship care relative states that he
13or she does not have any arrests
for which a criminal charge is pending or convictions
14that could adversely affect the child or the kinship care relative's ability to care for
15the child and that no adult resident, as defined in sub. (3p) (a), and no employee or
16prospective employee of the kinship care relative who would have regular contact
1with the child has any arrests
for which a criminal charge is pending or convictions
2that could adversely affect the child or the kinship care relative's ability to care for
3the child.
Note: Under current law, a county department or, in Milwaukee County, DHFS
must conduct a criminal background check to determine whether an applicant for kinship
care payments, an employee of the applicant who would have regular contact with the
child, or an adult resident of the applicant's home has any arrests or convictions that
could adversely affect the child or the applicant's ability to care for the child. In addition,
to be eligible for kinship care payments, an applicant must state that none of those
persons have any arrests or convictions that could adversely affect the child or the
applicant's ability to care for the child.
Section 4 limits the arrests that must be considered, in determining eligibility for
kinship care payments to arrests for which a criminal charge is pending.
AB201, s. 5
4Section
5
. 48.57 (3m) (d) of the statutes is renumbered 48.57 (3m) (d) (intro.)
5and amended to read:
AB201,5,166
48.57
(3m) (d) (intro.) A county department or, in a county having a population
7of 500,000 or more, the department shall review a placement of a child for which the
8county department or department makes payments under par. (am) not less than
9every 12 months after the county department or department begins making those
10payments to determine whether the conditions specified in par. (am) continue to
11exist. If those conditions do not continue to exist, the county department or
12department shall discontinue making those payments
after providing the kinship
13care relative whose payments are being discontinued with written notice of that
14discontinuation not less than 10 days before the date on which those payments are
15to be discontinued. The notice shall advise the kinship care relative of all of the
16following:
AB201, s. 6
17Section
6
. 48.57 (3m) (d) 1., 2. and 3. of the statutes are created to read:
AB201,6,218
48.57
(3m) (d) 1. That, if the payments are being discontinued on the grounds
19that a condition specified in par. (am) 1., 5., 5m., or 6. does not continue to exist, the
20kinship care relative may petition the department under par. (g) for a review of that
1discontinuation by submitting a petition for review within 45 days after the date on
2which those payments are discontinued.
AB201,6,63
2. That, if the payments are being discontinued based on arrest or conviction
4record, the kinship care relative may petition the department under sub. (3p) (h) for
5a review of that discontinuation by submitting a petition for review within 45 days
6after the date on which those payments are discontinued.
AB201,6,127
3. That, if the kinship care relative submits a petition for review under par. (g)
8or sub. (3p) (h) before the date on which his or her payments to be discontinued, the
9kinship care relative's payments may not be discontinued, except as provided in par.
10(g) 2. a. or b., until a final decision is rendered on the petition for review, but that
11payments made pending the decision may be recovered by the county department or
12department if the discontinuation is upheld.
Note: Sections 5 and 6 require a county department or DHFS to notify a kinship
care relative of the discontinuation of payments at least 10 days in advance. The notice
must include notice of the kinship care relative's rights to appeal the discontinuation and
to continue receiving payments while the appeal is pending, subject to the right of the
county department or DHFS to recover those payments if the discontinuation is upheld.
AB201, s. 7
13Section
7. 48.57 (3m) (f) of the statutes is amended to read:
AB201,6,2114
48.57
(3m) (f) Any person whose application for payments under par. (am) is
15not acted on
promptly within 45 days after receipt of a completed application or is
16denied on the grounds that a condition specified in par. (am) 1.,
2., 5.
, 5m., or 6. has
17not been met and any person whose payments under par. (am) are discontinued
18under par. (d) may petition the department under par. (g) for a review of that
action
19or failure to act
, denial, or discontinuation. Review is unavailable if the
action or 20failure to act
, denial, or discontinuation arose more than 45 days before submission
21of the petition for review.
AB201, s. 8
22Section
8
. 48.57 (3m) (g) 2. of the statutes is amended to read:
AB201,7,12
148.57
(3m) (g) 2. If a recipient requests a hearing
within 10 days after the date
2of notice that his or her payments under par. (am) are being discontinued before the
3date on which his or her payments under par. (am) are to be discontinued, those
4payments may not be discontinued
, except as provided in subd. 2. a. or b., until a
5decision is rendered after the hearing
, but payments made pending the hearing
6decision may be recovered by the
county department or department if the
contested
7action or failure to act discontinuation is upheld. The department shall promptly
8notify the county department of the county in which the recipient resides or, if the
9recipient resides in a county having a population of 500,000 or more, the subunit of
10the department administering
of the kinship care
program in that county that the
11recipient has requested a hearing. Payments under par. (am) shall be discontinued
12pending a hearing decision if any of the following applies:
Note: Under current law, if a county department or DHFS determines that a
kinship care relative is no longer eligible to receive kinship care payments, the county
department or DHFS must discontinue those payments. In general, if the recipient
requests a hearing on the discontinuation within 10 days of the date of the notice that
payments will be discontinued, the payments may not be discontinued pending the
hearing decision. Under Section 8, a kinship care relative must request a hearing before
the date the payments are to be discontinued, in order to continue receiving payments
pending the hearing decision.
AB201, s. 9
13Section
9
. 48.57 (3n) (am) 4. and 4m. of the statutes are amended to read:
AB201,8,214
48.57
(3n) (am) 4. The county department or department conducts a
15background investigation under sub. (3p) of the long-term kinship care relative, the
16employees and prospective employees of the long-term kinship care relative who
17have or would have regular contact with the child for whom the payments would be
18made
, and any other adult resident, as defined in sub. (3p) (a), of the long-term
19kinship care relative's home to determine if the long-term kinship care relative,
20employee, prospective employee
, or adult resident has any arrests
for which a
1criminal charge is pending or convictions that are likely to adversely affect the child
2or the long-term kinship care relative's ability to care for the child.
AB201,8,113
4m. Subject to sub. (3p) (fm) 1m. and 2m., the long-term kinship care relative
4states that he or she does not have any arrests
for which a criminal charge is pending 5or convictions that could adversely affect the child or the long-term kinship care
6relative's ability to care for the child and that, to the best of the long-term kinship
7care relative's knowledge, no adult resident, as defined in sub. (3p) (a), and no
8employee or prospective employee of the long-term kinship care relative who would
9have regular contact with the child has any arrests
for which a criminal charge is
10pending or convictions that could adversely affect the child or the long-term kinship
11care relative's ability to care for the child.
Note: Section 9 limits the arrests that must be considered in a criminal
background check to determine eligibility for long-term kinship care payments to arrests
for which a criminal charge is pending.
AB201, s. 10
12Section
10
. 48.57 (3n) (d) of the statutes is renumbered 48.57 (3n) (d) (intro.)
13and amended to read:
AB201,8,2314
48.57
(3n) (d) (intro.) The county department or, in a county having a
15population of 500,000 or more, the department shall, at least once every 12 months
16after the county department or department begins making payments under this
17subsection, determine whether any of the events specified in par. (am) 6. a. to f.
have 18has occurred. If any such
events have event has occurred, the county department or
19department shall discontinue making those payments
after providing the long-term
20kinship care relative whose payments are being discontinued with written notice of
21that discontinuation not less than 10 days before the date on which those payments
22are to be discontinued. The notice shall advise the long-term kinship care relative
23of all of the following:
AB201, s. 11
1Section
11
. 48.57 (3n) (d) 1. and 2. of the statutes are created to read:
AB201,9,52
48.57
(3n) (d) 1. That the long-term kinship care relative may petition the
3department under par. (g) for a review of that discontinuation by submitting a
4petition for review within 45 days after the date on which those payments are
5discontinued.
AB201,9,116
2. That, if the long-term kinship care relative submits a petition for review
7under par. (g) before the date on which his or her payments are to be discontinued,
8the long-term kinship care relative's payments may not be discontinued, except as
9provided in par. (g) 2. a. or b., until a final decision is rendered on the petition for
10review, but that payments made pending the decision may be recovered by the county
11department or department if the discontinuation is upheld.
Note: Sections 10 and 11 require a county department or DHFS to notify a
long-term kinship care relative of the discontinuation of payments at least 10 days in
advance. The notice must include notice of the long-term kinship care relative's rights
to appeal and to continue receiving payments while the appeal is pending, subject to the
right of the county department or DHFS to recover those payments if the discontinuation
is upheld.
AB201, s. 12
12Section
12. 48.57 (3n) (f) of the statutes is amended to read:
AB201,9,2013
48.57
(3n) (f) Any person whose application for payments under par. (am) is not
14acted on
promptly within 45 days after receipt of a completed application or is denied
15on the grounds that a condition specified in par. (am) 1., 2., 5., 5m.
, or 5r. has not been
16met and any person whose payments under par. (am) are discontinued under par. (d)
17may petition the department under par. (g) for a review of that
action or failure to
18act
, denial, or discontinuation. Review is unavailable if the
action or failure to act
,
19denial, or discontinuation arose more than 45 days before submission of the petition
20for review.
AB201, s. 13
21Section
13
. 48.57 (3n) (g) 2. of the statutes is amended to read:
AB201,10,12
148.57
(3n) (g) 2. If a recipient requests a hearing
within 10 days after the date
2of notice that his or her payments under par. (am) are being discontinued before the
3date on which his or her payments under par. (am) are to be discontinued, those
4payments may not be discontinued
, except as provided in subd. 2. a. or b., until a
5decision is rendered after the hearing
, but payments made pending the hearing
6decision may be recovered by the
county department or department if the
contested
7action or failure to act discontinuation is upheld. The department shall promptly
8notify the county department of the county in which the recipient resides or, if the
9recipient resides in a county having a population of 500,000 or more, the subunit of
10the department administering
of the long-term kinship care
program in that county
11that the recipient has requested a hearing. Payments under par. (am) shall be
12discontinued
pending a hearing decision if any of the following applies:
Note: Under Section 13, a long-term kinship care relative whose payments are
discontinued must request a hearing before the date the payments are to be discontinued
in order to continue receiving payments pending the hearing decision.
AB201, s. 14
13Section
14
. 48.57 (3p) (d) of the statutes is amended to read:
AB201,11,214
48.57
(3p) (d) If the person being investigated under par. (b) or (c) is a
15nonresident, or at any time within the 5 years preceding the date of the application
16has been a nonresident, or if the county department or, in a county having a
17population of 500,000 or more, the department of health and family services
18determines that the person's employment, licensing
, or state court records provide
19a reasonable basis for further investigation, the county department or department
20of health and family services shall require the person to be fingerprinted on 2
21fingerprint cards, each bearing a complete set of the person's fingerprints. The
22department of justice may provide for the submission of the fingerprint cards to the
23federal bureau of investigation for the purposes of verifying the identity of the person
1fingerprinted and obtaining records of his or her
criminal arrest and conviction 2arrests for which a criminal charge is pending and convictions.
AB201, s. 15
3Section
15. 48.57 (3p) (e) 4. of the statutes is amended to read:
AB201,11,84
48.57
(3p) (e) 4. Information regarding the
conviction record of the person 5person's record of arrests for which a criminal charge is pending and convictions 6under the law of this state or any other state or under federal law. This information
7shall be provided on a notarized background verification form that the department
8shall provide by rule.
AB201, s. 16
9Section
16. 48.57 (3p) (fm) 1. of the statutes is amended to read:
AB201,12,210
48.57
(3p) (fm) 1. The county department or, in a county having a population
11of 500,000 or more, the department of health and family services may provisionally
12approve the making of payments under sub. (3m) based on the applicant's statement
13under sub. (3m) (am) 4m. The county department or department of health and family
14services may not finally approve the making of payments under sub. (3m) unless the
15county department or department of health and family services receives information
16from the department of justice indicating that the
arrest and conviction record of the
17applicant under the law of this state
is satisfactory according to the criteria specified
18in par. (g) 1. to 3. does not include any arrest for which a criminal charge is pending
19or conviction that could adversely affect the child or the ability of the applicant to care
20for the child or payment is approved under par. (h) 4. The county department or
21department of health and family services may make payments under sub. (3m)
22conditioned on the receipt of information from the federal bureau of investigation
23indicating that the person's
arrest and conviction record under the law of any other
24state or under federal law
is satisfactory according to the criteria specified in par. (g)
11. to 3 does not include any arrest for which a criminal charge is pending or conviction
2that could adversely affect the child or the ability of the applicant to care for the child.
AB201, s. 17
3Section
17. 48.57 (3p) (fm) 1m. of the statutes is amended to read:
AB201,13,34
48.57
(3p) (fm) 1m. The county department or, in a county having a population
5of 500,000 or more, the department of health and family services may not enter into
6the agreement under sub. (3n) (am) 6. unless the county department or department
7of health and family services receives information from the department of justice
8relating to the indicating that the arrest and conviction record of the applicant under
9the law of this state
and that record indicates either that the applicant has not been
10arrested or convicted or that the applicant has been arrested or convicted but does
11not include any arrest for which a criminal charge is pending or conviction that the
12director of the county department or, in a county having a population of 500,000 or
13more, the person designated by the secretary of health and family services to review
14arrest and conviction records under this subdivision determines
that the conviction
15record is satisfactory because it does not include any arrest or conviction that the
16director or person designated by the secretary determines is likely to adversely affect
17the child or the
long-term kinship care relative's
applicant's ability to care for the
18child. The county department or, in a county having a population of 500,000 or more,
19the department of health and family services may make payments under sub. (3n)
20conditioned on the receipt of information from the federal bureau of investigation
21indicating that the person's
arrest and conviction record under the law of any other
22state or under federal law
is satisfactory because the conviction record does not
23include any arrest
for which a criminal charge is pending or conviction that the
24director of the county department or, in a county having a population of 500,000 or
25more, the person designated by the secretary of health and family services to review
1arrest and conviction records under this subdivision determines is likely to adversely
2affect the child or the
long-term kinship care relative's person's ability to care for the
3child.
AB201, s. 18
4Section
18. 48.57 (3p) (fm) 2. of the statutes is amended to read: