LRB-4046/1
GMM:jld:rs
2009 - 2010 LEGISLATURE
February 11, 2010 - Introduced by Representatives Strachota, Knodl, J. Ott,
Honadel, Vos, Townsend and Spanbauer, cosponsored by Senators Darling,
Lassa, Olsen, Hopper and Plale. Referred to Committee on Children and
Families.
AB722,2,7
1An Act to renumber and amend 48.357 (2r), 48.64 (4) (a), 48.64 (4) (c) and
2938.357 (2r);
to amend 48.293 (2), 48.295 (1), 48.295 (3), 48.33 (5), 48.355 (2)
3(b) 2., 48.357 (1) (am) 1., 48.357 (1) (am) 2m., 48.357 (1) (am) 2r., 48.357 (1) (c)
41., 48.357 (2m) (a), 48.357 (2m) (b), 48.357 (2m) (bp), 48.38 (4) (c), 48.62 (3m),
548.78 (2) (a), 48.78 (2) (ag), 48.78 (2) (aj), 48.78 (2) (am), 48.78 (2) (ap), 48.834
6(title), 48.834 (1), 48.834 (1m), 938.293 (2), 938.295 (1) (b), 938.295 (3), 938.33
7(5), 938.355 (2) (b) 2., 938.357 (1) (am) 1., 938.357 (1) (am) 2., 938.357 (1) (am)
82r., 938.357 (1) (c) 1., 938.357 (2m) (a), 938.357 (2m) (b), 938.357 (2m) (bp),
9938.38 (4) (c), 938.78 (2) (a), 938.78 (2) (ag) and 938.78 (2) (am);
to repeal and
10recreate 48.293 (2), 48.295 (1), 48.295 (3), 48.33 (5), 48.355 (2) (b) 2., 48.357 (1)
11(am) 1., 48.357 (2m) (b), 48.357 (2r), 48.38 (4) (c), 48.64 (4) (a), 48.64 (4) (c),
12938.293 (2), 938.295 (1) (b), 938.295 (3), 938.33 (5), 938.355 (2) (b) 2., 938.357
13(1) (am) 1., 938.357 (1) (am) 2., 938.357 (2m) (b), 938.357 (2r) and 938.38 (4) (c);
14and
to create 48.357 (1) (am) 2r., 48.357 (2m) (bp), 48.357 (2r) (b), 48.62 (3m),
148.64 (4) (a) 2., 48.64 (4) (c) 3., 48.834 (1m), 938.357 (1) (am) 2r., 938.357 (2m)
2(bp) and 938.357 (2r) (b) of the statutes;
relating to: disclosure of the identity
3of a foster parent or treatment foster parent of a child; the rights of a foster
4parent, treatment foster parent, or other physical custodian of a child on
5removal of the child from the person's home; and placement of a child for
6adoption with a foster parent, treatment foster parent, or other physical
7custodian of the child.
Analysis by the Legislative Reference Bureau
Introduction
This bill makes various changes relating to disclosure of the identity of a foster
parent or treatment foster parent of a child; the rights of a foster parent, treatment
foster parent, or other physical custodian of a child on removal of the child from the
person's home, whether that removal is through a change in placement or an agency
decision or order; and placement of a child for adoption with a foster parent,
treatment foster parent, or other physical custodian of the child.
Disclosure of identity
Under current law, a dispositional order of the court assigned to exercise
jurisdiction under the Children's Code (juvenile court) that places a child outside the
home must include the name of the place or facility where the child shall be cared
for, except that the juvenile court may order the name and address of a foster parent
or treatment foster parent to be withheld from a child's parent or guardian if the
juvenile court finds that disclosure of that information would result in imminent
danger to the child, the foster parent, or the treatment foster parent.
This bill provides that the name, other than the first name, and address of a
person licensed to operate a foster home or treatment foster home may not be
disclosed to the parent or guardian of a child placed in the home or to any other adult
relative of the child without the written consent of the licensee.
Rights on removal of child
Change in placement. Under current law, a child who is subject to a
dispositional order of the juvenile court, the child's parent, guardian, or legal
custodian, or any agency bound by the dispositional order may request a change in
placement of the child. Currently, if the agency requests the change in placement,
the agency must provide notice to the child, the child's parent, guardian, and legal
custodian, and the child's foster parent, treatment foster parent, or other physical
custodian stating the reasons for the change in placement, why the new placement
is preferable to the current placement, and how the new placement satisfies the
objectives of the child's treatment plan. A person who receives notice of such a change
in placement may obtain a hearing on the change in placement by filing an objection
to the change in placement.
Current law provides a slightly different procedure for when the child or the
child's parent, guardian, or legal custodian requests a change in placement. In that
case, the notice must state what new information affects the advisability of the
current placement and a hearing must be held unless all parties waive their
objections to the change in placement.
Under either procedure, if a hearing is held and the change in placement would
remove the child from a foster home or treatment foster home or from the home of
another physical custodian, the juvenile court must give the foster parent, treatment
foster parent, or other physical custodian the right to be heard by permitting that
person to make a written or oral statement at the hearing or to submit a written
statement prior to the hearing relating to the child and to the change in placement.
This bill expands the rights of a foster parent, treatment foster parent, or other
physical custodian in connection with a change in placement proceeding.
Specifically, the bill provides that, if a hearing is held and the change in placement
would remove the child from a foster home or treatment foster home or from the home
of another physical custodian in which the child has been placed for six months or
more, the foster parent, treatment foster parent, or other physical custodian shall
become a party to the proceeding and, as a party, shall have the right to be
represented by counsel, to inspect and copy, through counsel, all records relating to
the child, to request that the child be examined or assessed by an expert of the foster
parent's, treatment foster parent's, or other physical custodian's own choosing, to
present evidence, including expert testimony, to confront and cross-examine
witnesses, and to present alternative placement recommendations. The bill also
requires the juvenile court, in such a proceeding, to consider as paramount the best
interests of the child in determining whether to continue placement of the child in
his or her current placement or to change the child's placement to the proposed
change in placement.
The bill also changes the standard for a change in placement requested by an
agency by eliminating the requirement that the request show why the new
placement is preferable to the current placement and instead requiring the request
to show why the new placement would be in the best interests of the child. In
addition, the bill changes the standard for a change in placement requested by the
child or the child's parent, guardian, or legal custodian by eliminating the
requirement that the request state what new information is available that affects the
advisability of the current placement and instead requiring the request to state what
information, new or old, is available that affects the advisability of the current
placement and why the new placement would be in the best interests of the child.
Agency decision or order. Under current law, if a child has been placed in a
foster home, treatment foster home, or group home or in the home of a relative other
than a parent for six months or longer, the Department of Children and Families
(DCF), the county department of human services or social services (county
department), or licensed child welfare agency (collectively, "agency") that placed the
child must give the head of the home written notice of intent to remove the child from
the home, stating the reasons for the removal. In those cases, the child may not be
removed from the home before completion of a hearing before DCF or the circuit court
to review the removal decision, if a hearing has been requested, or 30 days after
receipt of the notice of intent to remove, whichever is later, unless the safety of the
child requires removal.
Also, under current law, any decision or order issued by an agency that affects
the head of a foster home, treatment foster home, or group home, the head of the
home of a relative other than a parent in which a child is placed, or the child involved
may be appealed to DCF under fair hearing procedures. Under those procedures, the
head of the home is entitled to be represented by counsel, to examine documents and
records, to bring witnesses, to confront and cross-examine adverse witnesses, and
to have judicial review of DCF's decision.
In addition, under current law, an interested party may file a petition with the
circuit court for the county where a child is placed alleging that a decision or order
of the agency supervising the child's placement is not in the best interests of the child.
On receipt of a petition, the circuit court may call a hearing for the purpose of
reviewing the decision or order. If the child is placed in a foster home or in the home
of a relative other than a parent, the foster parent or relative may present relevant
evidence at the hearing.
This bill makes the rights of the head of a foster home, treatment foster home,
group home, or home of a relative other than a parent in connection with an appeal
of an agency decision or order removing a child from the person's home consistent
with the rights of a foster parent, treatment foster parent, or other physical
custodian in connection with a change in placement proceeding. Specifically, the bill
provides that, if the head of a foster home, treatment foster home, group home, or
home of a relative other than a parent in which a child has been placed for six months
or more appeals an agency decision affecting the head of the home to DCF or files a
petition with the circuit court requesting the circuit court to review the agency
decision or order, the head of the home is a party to the proceeding and, as a party,
has the right to be represented by counsel, to inspect and copy, through counsel, all
records relating to the child, to request that the child be examined or assessed by an
expert of his or her own choosing, to present evidence, including expert testimony,
to confront and cross-examine witnesses, and to present alternative placement
recommendations.
Placement of child for adoption
Current law requires an agency, before placing a child for adoption, to consider
the availability of a placement for adoption with a relative of the child. This bill
requires an agency, before placing for adoption a child who has been placed in the
home of a foster parent, treatment foster parent, or other physical custodian for six
months or more, to first consider the availability of a placement for adoption with
that foster parent, treatment foster parent, or other physical custodian before
considering the availability of a placement for adoption with a relative.
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:
AB722, s. 1
1Section
1. 48.293 (2) of the statutes is amended to read:
AB722,5,162
48.293
(2) All records relating to a child
, or to an unborn child and the unborn
3child's expectant mother
, which are relevant to the subject matter of a proceeding
4under this chapter shall be open to inspection by a guardian ad litem or counsel for
5any party
and to inspection, by the court-appointed special advocate for the child,
6or by counsel for any foster parent, treatment foster parent, or other physical
7custodian described in s. 48.357 (2r) (b), upon demand and upon presentation of
8releases when necessary, at least
48 96 hours before the proceeding. Persons and
9unborn children, by their guardians ad litem, entitled to inspect the records may
10obtain copies of the records with the permission of the custodian of the records or with
11the permission of the court. The court may instruct counsel, a guardian ad litem
, or
12a court-appointed special advocate not to disclose specified items in the
materials 13records to the child
or, the parent,
or to the expectant mother,
or the child's foster
14parent, treatment foster parent, or other physical custodian described in s. 48.357
15(2r) (b) if the court reasonably believes that the disclosure would be harmful to the
16interests of the child or the unborn child.
AB722, s. 2
17Section
2. 48.293 (2) of the statutes, as affected by 2009 Wisconsin Act .... (this
18act), is repealed and recreated to read:
AB722,6,1019
48.293
(2) All records relating to a child or to an unborn child and the unborn
20child's expectant mother shall be open to inspection by a guardian ad litem or counsel
21for any party, by the court-appointed special advocate for the child, or by counsel for
1any foster parent or other physical custodian described in s. 48.357 (2r) (b), upon
2demand and upon presentation of releases when necessary, at least 96 hours before
3the proceeding. Persons and unborn children, by their guardians ad litem, entitled
4to inspect the records may obtain copies of the records with the permission of the
5custodian of the records or with the permission of the court. The court may instruct
6counsel, a guardian ad litem, or a court-appointed special advocate not to disclose
7specified items in the records to the child, the parent, the expectant mother, or the
8child's foster parent or other physical custodian described in s. 48.357 (2r) (b) if the
9court reasonably believes that the disclosure would be harmful to the interests of the
10child or the unborn child.
AB722, s. 3
11Section
3. 48.295 (1) of the statutes is amended to read:
AB722,7,1012
48.295
(1) After the filing of a petition and upon a finding by the court that
13reasonable cause exists to warrant a physical, psychological, mental, or
14developmental examination or an alcohol and other drug abuse assessment that
15conforms to the criteria specified under s. 48.547 (4), the court may order any child
16coming within its jurisdiction to be examined as an outpatient by personnel in an
17approved treatment facility for alcohol and other drug abuse, by a physician,
18psychiatrist
, or licensed psychologist, or by another expert appointed by the court
19holding at least a master's degree in social work or another related field of child
20development, in order that the child's physical, psychological, alcohol or other drug
21dependency, mental, or developmental condition may be considered. The court may
22also order a physical, psychological, mental, or developmental examination or an
23alcohol and other drug abuse assessment that conforms to the criteria specified
24under s. 48.547 (4) of a parent, guardian, or legal custodian whose ability to care for
25a child is at issue before the court or of an expectant mother whose ability to control
1her use of alcohol beverages, controlled substances, or controlled substance analogs
2is at issue before the court. The court shall hear any objections by the child
or, the
3child's parents, guardian, or legal custodian
, or the child's foster parent, treatment
4foster parent, or other physical custodian described in s. 48.357 (2r) (b) to the request
5for such an examination or assessment before ordering the examination or
6assessment. The expenses of an examination, if approved by the court, shall be paid
7by the county of the court ordering the examination in a county having a population
8of less than 500,000 or by the department in a county having a population of 500,000
9or more. The payment for an alcohol and other drug abuse assessment shall be in
10accordance with s. 48.361.
AB722, s. 4
11Section
4. 48.295 (1) of the statutes, as affected by 2009 Wisconsin Act .... (this
12act), is repealed and recreated to read:
AB722,8,1113
48.295
(1) After the filing of a petition and upon a finding by the court that
14reasonable cause exists to warrant a physical, psychological, mental, or
15developmental examination or an alcohol and other drug abuse assessment that
16conforms to the criteria specified under s. 48.547 (4), the court may order any child
17coming within its jurisdiction to be examined as an outpatient by personnel in an
18approved treatment facility for alcohol and other drug abuse, by a physician,
19psychiatrist, or licensed psychologist, or by another expert appointed by the court
20holding at least a master's degree in social work or another related field of child
21development, in order that the child's physical, psychological, alcohol or other drug
22dependency, mental, or developmental condition may be considered. The court may
23also order a physical, psychological, mental, or developmental examination or an
24alcohol and other drug abuse assessment that conforms to the criteria specified
25under s. 48.547 (4) of a parent, guardian, or legal custodian whose ability to care for
1a child is at issue before the court or of an expectant mother whose ability to control
2her use of alcohol beverages, controlled substances, or controlled substance analogs
3is at issue before the court. The court shall hear any objections by the child, the
4child's parents, guardian, or legal custodian, or the child's foster parent or other
5physical custodian described in s. 48.357 (2r) (b) to the request for such an
6examination or assessment before ordering the examination or assessment. The
7expenses of an examination, if approved by the court, shall be paid by the county of
8the court ordering the examination in a county having a population of less than
9500,000 or by the department in a county having a population of 500,000 or more.
10The payment for an alcohol and other drug abuse assessment shall be in accordance
11with s. 48.361.
AB722, s. 5
12Section
5. 48.295 (3) of the statutes is amended to read:
AB722,8,1713
48.295
(3) If the child, the child's parent
or, the expectant mother
, or the child's
14foster parent, treatment foster parent, or other physical custodian described in s.
1548.357 (2r) (b) objects to a particular physician, psychiatrist, licensed psychologist
, 16or other expert as required under this section, the court shall appoint a different
17physician, psychiatrist, psychologist
, or other expert as required under this section.
AB722, s. 6
18Section
6. 48.295 (3) of the statutes, as affected by 2009 Wisconsin Act .... (this
19act), is repealed and recreated to read:
AB722,8,2420
48.295
(3) If the child, the child's parent, the expectant mother, or the child's
21foster parent or other physical custodian described in s. 48.357 (2r) (b) objects to a
22particular physician, psychiatrist, licensed psychologist, or other expert as required
23under this section, the court shall appoint a different physician, psychiatrist,
24psychologist, or other expert as required under this section.
AB722, s. 7
25Section
7. 48.33 (5) of the statutes is amended to read:
AB722,9,15
148.33
(5) Identity of foster parent or treatment foster parent;
2confidentiality. If the report recommends placement in a foster home or a treatment
3foster home
, and the name of the foster parent or treatment foster parent is not
4available at the time the report is filed, the agency shall provide the court
and the
5child's parent or guardian with the name and address of the foster parent or
6treatment foster parent within 21 days after the dispositional order is entered
. If the
7foster parent or treatment foster parent has consented under s. 48.62 (3m) to the
8disclosure of that information to the child's parent or guardian or to any other adult
9relative of the child, the agency shall also provide that information to that parent,
10guardian, or adult relative within those 21 days, except that the court may order the
11information withheld from
the child's that parent
or, guardian
, or adult relative if the
12court finds that disclosure would result in imminent danger to the child or to the
13foster parent or treatment foster parent. After notifying
the child's that parent
or,
14guardian
, or adult relative, the court shall hold a hearing prior to ordering the
15information withheld.
AB722,9,2518
48.33
(5) Identity of foster parent; confidentiality. If the report recommends
19placement in a foster home and the name of the foster parent is not available at the
20time the report is filed, the agency shall provide the court with the name and address
21of the foster parent within 21 days after the dispositional order is entered. If the
22foster parent has consented under s. 48.62 (3m) to the disclosure of that information
23to the child's parent or guardian or to any other adult relative of the child, the agency
24shall also provide that information to that parent, guardian, or adult relative within
25those 21 days, except that the court may order the information withheld from that
1parent, guardian, or adult relative if the court finds that disclosure would result in
2imminent danger to the child or to the foster parent. After notifying that parent,
3guardian, or adult relative, the court shall hold a hearing prior to ordering the
4information withheld.
AB722, s. 9
5Section
9. 48.355 (2) (b) 2. of the statutes is amended to read:
AB722,10,226
48.355
(2) (b) 2. If the child is placed outside the home, the name of the place
7or facility, including transitional placements, where the child
shall will be cared for
8or treated, except that if the placement is a foster home or treatment foster home and
9the name and address of the foster parent or treatment foster parent is not available
10at the time of the order, the name and address of the foster parent or treatment foster
11parent shall be furnished to the court
and the parent within 21 days of the order.
If
12the foster parent or treatment foster parent has consented under s. 48.62 (3m) to the
13disclosure of that information to the child's parent or guardian or to any other adult
14relative of the child, the agency shall also provide that information to that parent,
15guardian, or adult relative within those 21 days, except that the judge may order that
16information to be withheld from that parent, guardian, or adult relative as provided
17in this subdivision. If, after a hearing on the issue with due notice to the parent
or, 18guardian
, or adult relative, the judge finds that disclosure of the identity of the foster
19parent or treatment foster parent would result in imminent danger to the child, the
20foster parent
, or the treatment foster parent, the judge may order the name and
21address of the prospective foster parents or treatment foster parents withheld from
22the parent
or, guardian
, or adult relative.
AB722,11,15
148.355
(2) (b) 2. If the child is placed outside the home, the name of the place
2or facility, including transitional placements, where the child will be cared for or
3treated, except that if the placement is a foster home and the name and address of
4the foster parent is not available at the time of the order, the name and address of
5the foster parent shall be furnished to the court within 21 days after the order. If the
6foster parent has consented under s. 48.62 (3m) to the disclosure of that information
7to the child's parent or guardian or to any other adult relative of the child, the agency
8shall also provide that information to that parent, guardian, or adult relative within
9those 21 days, except that the judge may order that information to be withheld from
10that parent, guardian, or adult relative as provided in this subdivision. If, after a
11hearing on the issue with due notice to the parent, guardian, or adult relative, the
12judge finds that disclosure of the identity of the foster parent would result in
13imminent danger to the child or the foster parent, the judge may order the name and
14address of the prospective foster parents withheld from the parent, guardian, or
15adult relative.
AB722,12,1018
48.357
(1) (am) 1. If the proposed change in placement involves any change in
19placement other than a change in placement specified in par. (c), the person or agency
20primarily responsible for implementing the dispositional order, the district attorney,
21or the corporation counsel shall cause written notice of the proposed change in
22placement to be sent to the child, the parent, guardian, and legal custodian of the
23child, any foster parent, treatment foster parent, or other physical custodian
24described in s. 48.62 (2) of the child, the child's court-appointed special advocate,
25and, if the child is an Indian child who has been removed from the home of his or her
1parent or Indian custodian, the Indian child's Indian custodian and tribe. If the child
2is the expectant mother of an unborn child under s. 48.133, written notice shall also
3be sent to the unborn child by the unborn child's guardian ad litem. If the change
4in placement involves an adult expectant mother of an unborn child under s. 48.133,
5written notice shall be sent to the adult expectant mother and the unborn child by
6the unborn child's guardian ad litem. The notice shall contain the name and address
7of the new placement, the reasons for the change in placement, a statement
8describing why the new placement
would be in the best interest of the child, and a
9statement of how the new placement satisfies objectives of the treatment plan
10ordered by the court.
AB722, s. 12
11Section
12. 48.357 (1) (am) 1. of the statutes, as affected by
2009 Wisconsin
12Act 94, section
81, and 2009 Wisconsin Act .... (this act), is repealed and recreated to
13read:
AB722,13,514
48.357
(1) (am) 1. If the proposed change in placement involves any change in
15placement other than a change in placement specified in par. (c), the person or agency
16primarily responsible for implementing the dispositional order, the district attorney,
17or the corporation counsel shall cause written notice of the proposed change in
18placement to be sent to the child, the parent, guardian, and legal custodian of the
19child, any foster parent or other physical custodian described in s. 48.62 (2) of the
20child, the child's court-appointed special advocate, and, if the child is an Indian child
21who has been removed from the home of his or her parent or Indian custodian, the
22Indian child's Indian custodian and tribe. If the child is the expectant mother of an
23unborn child under s. 48.133, written notice shall also be sent to the unborn child by
24the unborn child's guardian ad litem. If the change in placement involves an adult
25expectant mother of an unborn child under s. 48.133, written notice shall be sent to
1the adult expectant mother and the unborn child by the unborn child's guardian ad
2litem. The notice shall contain the name and address of the new placement, the
3reasons for the change in placement, a statement describing why the new placement
4would be in the best interests of the child, and a statement of how the new placement
5satisfies objectives of the treatment plan ordered by the court.
AB722,13,138
48.357
(1) (am) 2m. Changes in placement that were authorized in the
9dispositional order may be made immediately if notice is given as required under
10subd. 1. In addition, a hearing is not required for placement changes authorized in
11the dispositional order except when an objection filed by a person who received notice
12alleges that
new information is available that affects the advisability of the court's
13dispositional order.
AB722, s. 14
14Section
14. 48.357 (1) (am) 2r. of the statutes is created to read:
AB722,13,2115
48.357
(1) (am) 2r. In the case of a child who has been placed in the home of a
16foster parent, treatment foster parent, or other physical custodian for 6 months or
17more, if a hearing is held on a proposed change in placement of such a child to another
18placement outside the home, the court shall consider as paramount the best interests
19of the child in determining whether to continue placement of the child in his or her
20current placement or to change the child's placement to the proposed change in
21placement.
AB722, s. 15
22Section
15. 48.357 (1) (am) 2r. of the statutes, as created by 2009 Wisconsin
23Act .... (this act), is amended to read:
AB722,14,524
48.357
(1) (am) 2r. In the case of a child who has been placed in the home of a
25foster parent
, treatment foster parent, or other physical custodian for 6 months or
1more, if a hearing is held on a proposed change in placement of such a child to another
2placement outside the home, the court shall consider as paramount the best interests
3of the child in determining whether to continue placement of the child in his or her
4current placement or to change the child's placement to the proposed change in
5placement.