LRB-3005/2
GMM:wlj:jf
2003 - 2004 LEGISLATURE
February 24, 2004 - Introduced by Senator Roessler, cosponsored by
Representative Kestell. Referred to Committee on Health, Children,
Families, Aging and Long Term Care.
SB488,2,2
1An Act to repeal 48.977 (1);
to amend 20.435 (7) (b), 46.10 (14) (a), 46.10 (14)
2(b), 46.261 (1) (a), 46.261 (2) (a) 1., 46.261 (2) (a) 3., 46.261 (2) (a) 4., 46.261 (2)
3(b), 46.495 (1) (d), 46.51 (4), 48.33 (4) (intro.), 48.345 (3) (c), 48.356 (1), 48.425
4(1) (g), 48.427 (3m) (intro.), 48.427 (3p), 48.48 (17) (a) 3., 48.48 (17) (c) 4., 48.57
5(1) (c), 48.57 (3) (a) 4., 48.57 (3m) (cm), 48.57 (3n) (cm), 48.61 (3), 48.615 (1) (b),
648.977 (title), 48.977 (2) (intro.), 48.977 (2) (a), 48.977 (2) (b), 48.977 (2) (c),
748.977 (2) (f), 48.977 (4) (a) 4., 48.977 (4) (a) 6., 48.977 (4) (b) 3., 48.977 (4) (c)
81. g., 48.977 (4) (e), 48.977 (4) (g) 1., 48.977 (4) (g) 2., 48.977 (4) (h) 1., 48.977 (4)
9(h) 2., 49.155 (1m) (a) 1m. b., 49.155 (1m) (bm), 49.155 (1m) (c) 1g., 49.46 (1) (a)
105., 767.078 (1) (a) 2., 767.29 (1m) (c), 767.29 (2), 767.29 (4), 938.33 (4) (intro.),
11938.57 (1) (c) and 938.57 (3) (a) 4.; and
to create 48.427 (3m) (c), 48.62 (5),
1248.977 (3r) and 938.345 (4) of the statutes;
relating to: the appointment of a
13guardian for certain children in need of protection or services, the payment of
1subsidized guardianship payments to a guardian of a child who meets certain
2requirements, and making an appropriation.
Analysis by the Legislative Reference Bureau
Under current law, the court assigned to exercise jurisdiction under the
Children's Code (juvenile court) may appoint a relative of a child as the guardian of
the child if the juvenile court makes certain findings, including a finding that the
child has been adjudged to be in need of protection or services and has been placed
outside of his or her home pursuant to an order of the juvenile court for one year or
longer.
This bill permits any person, not just a relative, to be appointed as the guardian
of a child who has been adjudged to be in need of protection or services. The bill also
eliminates that one-year waiting period and permits a child who has been adjudged
to be in need of protection or services or whose parents' parental rights to the child
have been terminated to be placed directly in the home of a guardian without first
having been placed in another out-of-home placement. In addition, the bill permits
the parental rights of a parent of a child in need of protection or services for whom
a guardian has been appointed to be terminated on the grounds of abandonment if,
when the juvenile court appointed the guardian, the juvenile court provided the
parent with notice of any ground for termination of parental rights that may be
applicable and of the conditions necessary for the child to be returned home and the
parent has failed to visit or communicate with the child for a period of three months
or longer.
Currently, a relative who is appointed as the guardian of a child in need of
protection or services and who meets certain other requirements is eligible to receive
long-term kinship care payments in the amount of $215 per month for providing care
and maintenance for the child. This bill permits a county department of human
services or social services (county department) or, in Milwaukee County, the
Department of Health and Family Services (DHFS) to provide monthly subsidized
guardianship payments to a person who is appointed as the guardian for a child in
need of protection of services; was the licensed foster parent or treatment foster
parent of the child before that appointment; and has entered into a subsidized
guardianship agreement with the county department or DHFS. A county
department or DHFS may provide the monthly subsidized guardianship payments
to the person if the child has been placed outside the home for a cumulative total
period of one year or longer; the juvenile court has found that reunification of the
child with the child's parents is unlikely or contrary to the best interests of the child
and that further reunification efforts are unlikely to be made or are contrary to the
best interests of the child; and the juvenile court has found that appointment of a
guardian is in the best interests of the child; or if the child does not meet any of those
conditions, but DHFS has determined that appointing a guardian for the child and
providing subsidized guardianship payments to the guardian are in the best
interests of the child and the juvenile court has confirmed that determination.
Under the bill, the amount of a monthly subsidized guardianship payment is
equal to the amount of the monthly foster care or treatment foster care payment
received by the guardian immediately before the guardianship order was granted.
In addition, a subsidized guardian is eligible for a child care subsidy under the
Wisconsin Works Program in the same manner as a foster parent is so eligible, and
a child who is in the care of a subsidized guardian is eligible for Medical Assistance
in the same manner as a child in foster care is so eligible.
The bill also requires DHFS to request from the secretary of the federal
Department of Health and Human Services a waiver of the requirements under Title
IV-E of the federal Social Security Act that would authorize the state to receive
federal foster care and adoption assistance reimbursement for the costs of providing
care for a child who is in the care of a guardian who was licensed as the child's foster
parent or treatment foster parent before the guardianship appointment, and who
has entered into a subsidized guardianship agreement. If the waiver is approved for
Milwaukee County, the bill requires DHFS to provide the monthly subsidized
guardianship payments. If the waiver is approved for any other county, the bill
requires DHFS to determine which counties are authorized to provide subsidized
guardianship payments and requires those authorized counties to provide those
payments.
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:
SB488, s. 1
1Section
1. 20.435 (7) (b) of the statutes is amended to read:
SB488,4,92
20.435
(7) (b)
Community aids. The amounts in the schedule for human
3services under s. 46.40, to fund services provided by resource centers under s. 46.283
4(5), for services under the family care benefit under s. 46.284 (5), for reimbursement
5to counties having a population of less than 500,000 for the cost of court attached
6intake services under s. 48.06 (4), for shelter care under ss. 48.58 and 938.22
, and for
7foster care
and, treatment foster care
, and subsidized guardianship care under
s. ss.
846.261 and 49.19 (10). Social services disbursements under s. 46.03 (20) (b) may be
9made from this appropriation. Refunds received relating to payments made under
10s. 46.03 (20) (b) for the provision of services for which moneys are appropriated under
11this paragraph shall be returned to this appropriation. Notwithstanding ss. 20.001
1(3) (a) and 20.002 (1), the department of health and family services may transfer
2funds between fiscal years under this paragraph. The department shall deposit into
3this appropriation funds it recovers under ss. 46.495 (2) (b) and 51.423 (15) from prior
4year audit adjustments including those resulting from audits of services under s.
546.26, 1993 stats., or s. 46.27. Except for amounts authorized to be carried forward
6under s. 46.45, all funds recovered under ss. 46.495 (2) (b) and 51.423 (15) and all
7funds allocated under s. 46.40 and not spent or encumbered by December 31 of each
8year shall lapse to the general fund on the succeeding January 1 unless carried
9forward to the next calendar year by the joint committee on finance.
SB488, s. 2
10Section
2. 46.10 (14) (a) of the statutes is amended to read:
SB488,4,2511
46.10
(14) (a) Except as provided in pars. (b) and (c), liability of a person
12specified in sub. (2) or s. 46.03 (18) for inpatient care and maintenance of persons
13under 18 years of age at community mental health centers, a county mental health
14complex under s. 51.08, the centers for the developmentally disabled, the Mendota
15Mental Health Institute, and the Winnebago Mental Health Institute or care and
16maintenance of persons under 18 years of age in residential, nonmedical facilities
17such as group homes, foster homes, treatment foster homes,
child caring institutions, 18subsidized guardianship homes, residential care centers for children and youth, and
19juvenile correctional institutions is determined in accordance with the cost-based
20fee established under s. 46.03 (18). The department shall bill the liable person up
21to any amount of liability not paid by an insurer under s. 632.89 (2) or (2m) or by other
223rd-party benefits, subject to rules that include formulas governing ability to pay
23promulgated by the department under s. 46.03 (18). Any liability of the patient not
24payable by any other person terminates when the patient reaches age 18, unless the
25liable person has prevented payment by any act or omission.
SB488, s. 3
1Section
3. 46.10 (14) (b) of the statutes is amended to read:
SB488,5,102
46.10
(14) (b) Except as provided in par. (c) and subject to par. (cm), liability
3of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the
4parent's minor child who has been placed by a court order under s. 48.355 or 48.357
5in a residential, nonmedical facility such as a group home, foster home, treatment
6foster home,
subsidized guardianship home, or residential care center for children
7and youth shall be determined by the court by using the percentage standard
8established by the department of workforce development under s. 49.22 (9) and by
9applying the percentage standard in the manner established by the department
10under s. 46.247.
SB488, s. 4
11Section
4. 46.261 (1) (a) of the statutes is amended to read:
SB488,5,2212
46.261
(1) (a) The child is living in a foster home or treatment foster home
13licensed under s. 48.62 if a license is required under that section, in a foster home
14or treatment foster home located within the boundaries of a federally recognized
15American Indian reservation in this state and licensed by the tribal governing body
16of the reservation, in a group home licensed under s. 48.625,
in a subsidized
17guardianship home under s. 48.62 (5), or in a residential care center for children and
18youth licensed under s. 48.60, and has been placed in the foster home, treatment
19foster home, group home,
subsidized guardianship home, or center by a county
20department under s. 46.215, 46.22
, or 46.23, by the department, or by a federally
21recognized American Indian tribal governing body in this state under an agreement
22with a county department under s. 46.215, 46.22
, or 46.23.
SB488, s. 5
23Section
5. 46.261 (2) (a) 1. of the statutes is amended to read:
SB488,6,1324
46.261
(2) (a) 1. A nonrelative who cares for the dependent child in a foster
25home or treatment foster home having a license under s. 48.62, in a foster home or
1treatment foster home located within the boundaries of a federally recognized
2American Indian reservation in this state and licensed by the tribal governing body
3of the reservation or in a group home licensed under s. 48.625
, a subsidized guardian
4under s. 48.62 (5) who cares for the dependent child, or a minor custodial parent who
5cares for the dependent child, regardless of the cause or prospective period of
6dependency. The state shall reimburse counties pursuant to the procedure under s.
746.495 (2) and the percentage rate of participation set forth in s. 46.495 (1) (d) for aid
8granted under this section except that if the child does not have legal settlement in
9the granting county, state reimbursement shall be at 100%. The county department
10under s. 46.215 or 46.22 or the department under s. 48.48 (17) shall determine the
11legal settlement of the child. A child under one year of age shall be eligible for aid
12under this subsection irrespective of any other residence requirement for eligibility
13within this section.
SB488, s. 6
14Section
6. 46.261 (2) (a) 3. of the statutes is amended to read:
SB488,6,2515
46.261
(2) (a) 3. A county or, in a county having a population of 500,000 or more,
16the department, when the child is placed in a licensed foster home, treatment foster
17home, group home, or residential care center for children and youth
or in a subsidized
18guardianship home by a licensed child welfare agency or by a federally recognized
19American Indian tribal governing body in this state or by its designee, if the child is
20in the legal custody of the county department under s. 46.215, 46.22
, or 46.23 or the
21department under s. 48.48 (17) or if the child was removed from the home of a
22relative, as defined under s. 48.02 (15), as a result of a judicial determination that
23continuance in the home of the relative would be contrary to the child's welfare for
24any reason and the placement is made pursuant to an agreement with the county
25department or the department.
SB488, s. 7
1Section
7. 46.261 (2) (a) 4. of the statutes is amended to read:
SB488,7,102
46.261
(2) (a) 4. A licensed foster home, treatment foster home, group home,
3or residential care center for children and youth
or a subsidized guardianship home 4when the child is in the custody or guardianship of the state, when the child is a ward
5of an American Indian tribal court in this state and the placement is made under an
6agreement between the department and the tribal governing body, or when the child
7was part of the state's direct service case load and was removed from the home of a
8relative, as defined under s. 48.02 (15), as a result of a judicial determination that
9continuance in the home of a relative would be contrary to the child's welfare for any
10reason and the child is placed by the department.
SB488, s. 8
11Section
8. 46.261 (2) (b) of the statutes is amended to read:
SB488,7,2012
46.261
(2) (b) Notwithstanding par. (a), aid under this section may not be
13granted for placement of a child in a foster home or treatment foster home licensed
14by a federally recognized American Indian tribal governing body, for placement of a
15child in a foster home, treatment foster home,
group home, subsidized guardianship
16home, or residential care center for children and youth by a tribal governing body or
17its designee,
or for the placement of a child who is a ward of a tribal court if the tribal
18governing body is receiving or is eligible to receive funds from the federal government
19for that type of placement
or for placement of a child in a group home licensed under
20s. 48.625.
SB488, s. 9
21Section
9. 46.495 (1) (d) of the statutes is amended to read:
SB488,8,1522
46.495
(1) (d) From the appropriations under s. 20.435 (3) (o) and (7) (b) and
23(o), the department shall distribute the funding for social services, including funding
24for foster care
or, treatment foster care
, or subsidized guardianship care of a child on
25whose behalf aid is received under s. 46.261, to county departments under ss. 46.215,
146.22, and 46.23 as provided under s. 46.40. County matching funds are required for
2the distributions under s. 46.40 (2), (8), and (9) (b). Each county's required match for
3the distributions under s. 46.40 (2) and (8) for a year equals 9.89% of the total of the
4county's distributions under s. 46.40 (2) and (8) for that year for which matching
5funds are required plus the amount the county was required by s. 46.26 (2) (c), 1985
6stats., to spend for juvenile delinquency-related services from its distribution for
71987. Each county's required match for the distribution under s. 46.40 (9) (b) for a
8year equals 9.89% of that county's amounts described in s. 46.40 (9) (a) (intro.) for
9that year. Matching funds may be from county tax levies, federal and state revenue
10sharing funds, or private donations to the county that meet the requirements
11specified in s. 51.423 (5). Private donations may not exceed 25% of the total county
12match. If the county match is less than the amount required to generate the full
13amount of state and federal funds distributed for this period, the decrease in the
14amount of state and federal funds equals the difference between the required and the
15actual amount of county matching funds.
SB488, s. 10
16Section
10. 46.51 (4) of the statutes is amended to read:
SB488,8,2017
46.51
(4) A county may use the funds distributed under this section to fund
18additional foster parents
and, treatment foster parents
, and subsidized guardians 19to care for abused and neglected children and to fund additional staff positions to
20provide services related to child abuse and neglect and to unborn child abuse.
SB488, s. 11
21Section
11. 48.33 (4) (intro.) of the statutes is amended to read:
SB488,9,222
48.33
(4) Other out-of-home placements. (intro.) A report recommending
23placement of an adult expectant mother outside of her home shall be in writing. A
24report recommending placement of a child in a foster home, treatment foster home,
25group home, or residential care center for children and youth
or, in the home of a
1relative other than a parent
, or in the home of the child's guardian under s. 48.977
2(2) shall be in writing and shall include all of the following:
SB488, s. 12
3Section
12. 48.345 (3) (c) of the statutes is amended to read:
SB488,9,64
48.345
(3) (c) A foster home or treatment foster home licensed under s. 48.62
5or, a group home licensed under s. 48.625
, or in the home of the child's guardian under
6s. 48.977 (2).
SB488, s. 13
7Section
13. 48.356 (1) of the statutes is amended to read:
SB488,9,178
48.356
(1) Whenever the court orders a child to be placed outside his or her
9home, orders an expectant mother of an unborn child to be placed outside of her
10home
, or denies a parent visitation because the child or unborn child has been
11adjudged to be in need of protection or services under s. 48.345, 48.347, 48.357,
1248.363
, or 48.365
or whenever the court appoints a guardian for a child under s.
1348.977 (2), the court shall orally inform the parent or parents who appear in court
14or the expectant mother who appears in court of any grounds for termination of
15parental rights under s. 48.415
which that may be applicable and of the conditions
16necessary for the child or expectant mother to be returned to the home or for the
17parent to be granted visitation.
SB488, s. 14
18Section
14. 48.425 (1) (g) of the statutes is amended to read:
SB488,9,2519
48.425
(1) (g) If an agency designated under s. 48.427 (3m) (a) 1. to 4.
20determines that it is unlikely that the child will be adopted, or if adoption would not
21be in the best interests of the child, the report shall include a plan for placing the child
22in a permanent family setting. The plan shall include a recommendation as to the
23agency to be named guardian of the child or a recommendation that the person
24appointed as the guardian of the child under s. 48.977 (2) continue to be the guardian
25of the child
or that a guardian be appointed for the child under s. 48.977 (2).
SB488, s. 15
1Section
15. 48.427 (3m) (intro.) of the statutes is amended to read:
SB488,10,42
48.427
(3m) (intro.) If the rights of both parents or of the only living parent are
3terminated under sub. (3) and if a guardian has not been appointed under s. 48.977,
4the court shall
either do one of the following:
SB488, s. 16
5Section
16. 48.427 (3m) (c) of the statutes is created to read:
SB488,10,76
48.427
(3m) (c) Appoint a guardian under s. 48.977 and transfer guardianship
7and custody of the child to the guardian.
SB488, s. 17
8Section
17. 48.427 (3p) of the statutes is amended to read:
SB488,10,139
48.427
(3p) If the rights of both parents or of the only living parent are
10terminated under sub. (3) and if a guardian has been appointed under s. 48.977, the
11court may enter one of the orders specified in sub. (3m)
(a) or (b). If the court enters
12an order under this subsection, the court shall terminate the guardianship under s.
1348.977.
SB488, s. 18
14Section
18. 48.48 (17) (a) 3. of the statutes is amended to read:
SB488,11,215
48.48
(17) (a) 3. Provide appropriate protection and services for children and
16the expectant mothers of unborn children in its care, including providing services for
17those children and their families and for those expectant mothers in their own
18homes, placing the children in licensed foster homes, treatment foster homes
, or
19group homes in this state or another state within a reasonable proximity to the
20agency with legal custody
, placing the children in the homes of the children's
21guardians under s. 48.977 (2), or contracting for services for those children by
22licensed child welfare agencies, except that the department may not purchase the
23educational component of private day treatment programs unless the department,
24the school board
, as defined in s. 115.001 (7)
, and the state superintendent of public
25instruction all determine that an appropriate public education program is not
1available. Disputes between the department and the school district shall be resolved
2by the state superintendent of public instruction.
SB488, s. 19
3Section
19. 48.48 (17) (c) 4. of the statutes is amended to read:
SB488,11,64
48.48
(17) (c) 4. Is living in a foster home, treatment foster home, group home,
5or residential care center for children and youth
or in the home of a subsidized
6guardian under s. 48.62 (5).
SB488, s. 20
7Section
20. 48.57 (1) (c) of the statutes is amended to read:
SB488,11,208
48.57
(1) (c) To provide appropriate protection and services for children and the
9expectant mothers of unborn children in its care, including providing services for
10those children and their families and for those expectant mothers in their own
11homes, placing those children in licensed foster homes, treatment foster homes
, or
12group homes in this state or another state within a reasonable proximity to the
13agency with legal custody
, placing those children in the homes of the children's
14guardians under s. 48.977 (2), or contracting for services for those children by
15licensed child welfare agencies, except that the county department may not purchase
16the educational component of private day treatment programs unless the county
17department, the school board
, as defined in s. 115.001 (7)
, and the state
18superintendent of public instruction all determine that an appropriate public
19education program is not available. Disputes between the county department and
20the school district shall be resolved by the state superintendent of public instruction.
SB488, s. 21
21Section
21. 48.57 (3) (a) 4. of the statutes is amended to read:
SB488,11,2422
48.57
(3) (a) 4. Is living in a foster home, treatment foster home, group home,
23or residential care center for children and youth
or is living in the home of a
24subsidized guardian under s. 48.62 (5).
SB488, s. 22
25Section
22. 48.57 (3m) (cm) of the statutes is amended to read:
SB488,12,3
148.57
(3m) (cm) A kinship care relative who receives a payment under par. (am)
2for providing care and maintenance for a child is not eligible to receive a payment
3under sub. (3n) or s. 48.62 (4)
or (5) for that child.
SB488, s. 23
4Section
23. 48.57 (3n) (cm) of the statutes is amended to read:
SB488,12,75
48.57
(3n) (cm) A long-term kinship care relative who receives a payment
6under par. (am) for providing care and maintenance for a child is not eligible to
7receive a payment under sub. (3m) or s. 48.62 (4)
or (5) for that child.
SB488, s. 24
8Section
24. 48.61 (3) of the statutes is amended to read:
SB488,12,129
48.61
(3) To provide appropriate care and training for children in its legal or
10physical custody and, if licensed to do so, to place children in licensed foster homes,
11licensed treatment foster homes
, and licensed group homes
and in the homes of the
12children's guardians under s. 48.977 (2).
SB488, s. 25
13Section
25. 48.615 (1) (b) of the statutes is amended to read:
SB488,12,1814
48.615
(1) (b) Before the department may issue a license under s. 48.60 (1) to
15a child welfare agency that places children in licensed foster homes, licensed
16treatment foster homes
, and licensed group homes
and in the homes of the children's
17guardians under s. 48.977 (2), the child welfare agency must pay to the department
18a biennial fee of $254.10
.