LRBs0088/4
GMM:jld:jf
2011 - 2012 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2011 ASSEMBLY BILL 30
April 27, 2011 - Offered by Representative Kooyenga.
AB30-ASA1,1,9
1An Act to amend 48.60 (2) (a), 48.62 (2), 48.625 (3), 48.63 (2), 48.685 (1) (am),
248.685 (1) (ar), 48.685 (1) (b), 48.685 (1) (bm), 48.685 (2) (am) 5., 48.685 (2) (b)
31. (intro.), 48.685 (2) (b) 1. e., 48.685 (2) (bd), 48.685 (3) (b), 48.685 (4m) (b)
4(intro.), 48.685 (4m) (c), 48.685 (5) (a), 48.685 (5m), 48.685 (6) (am), 48.981 (2)
5(a) (intro.), 48.981 (2) (b), 48.981 (2) (bm) 1. (intro.), 48.981 (2) (bm) 2. (intro.)
6and 48.981 (2m) (title); and
to create 48.685 (1) (ag) 1. am., 48.979 and 48.981
7(2r) of the statutes;
relating to: delegation by a parent who has legal custody
8of a child of powers regarding the care and custody of the child by a power of
9attorney and granting rule-making authority.
Analysis by the Legislative Reference Bureau
Current law. Under current law, a parent may petition the court assigned to
exercise jurisdiction under the Children's Code (juvenile court) for the appointment
of a guardian for the parent's child. A guardian has the duty and authority to make
important decisions in matters having a permanent effect on the life and
development of the child and the duty to be concerned about the child's general
welfare. A guardian's authority includes the authority to consent to major medical,
psychiatric, and surgical treatment for the child and the child obtaining a motor
vehicle operator's license. A guardian also has the rights and responsibilities of legal
custody, which include the right and duty to protect, train, and discipline the child
and to provide food, shelter, legal services, education, and ordinary medical and
dental care for the child.
Delegation of care and custody of child. This substitute amendment
permits a parent who has legal custody of a child, by a power of attorney that is
properly executed by all parents who have legal custody of the child, to delegate to
another person (agent), for a period not to exceed one year, any of his or her powers
regarding the care and custody of the child, except the power to consent to the
marriage or adoption of the child, the performance or inducement of an abortion on
or for the child, the termination of parental rights to the child, or the enlistment of
the child in the U.S. armed forces. The substitute amendment provides that such a
delegation of powers does not deprive the parent of any of his or her powers regarding
the care and custody of the child and does not prevent or supersede: 1) an
investigation of suspected or threatened abuse or neglect of the child under the child
abuse and neglect reporting law; 2) the child from being taken into and held in
custody under the Children's Code or the Juvenile Justice Code; 3) a juvenile court
intake worker from conducting an intake inquiry to determine whether the available
facts establish juvenile court jurisdiction over the child; or 4) the juvenile court from
exercising its child or juvenile in need of protection or services jurisdiction over the
child. The juvenile court's exercising of that jurisdiction, however, does not preclude
a delegation of powers that is not in conflict with a juvenile court order granted in
the exercise of that jurisdiction.
Background checks. Under current law, certain entities that provide care for
children, such as foster homes and group homes, may not employ or contract with a
caregiver or permit a nonclient resident to reside at the entity if the caregiver or
nonclient resident has been convicted or adjudicated delinquent for committing a
serious crime, as defined under current law, or has abused or neglected a child or
person receiving care from the person (client), unless the person shows that he or she
has been rehabilitated. This substitute amendment requires an organization that
facilitates delegations of the care and custody of children to agents as provided in the
substitute amendment (organization) to conduct a criminal history and child and
client abuse record search with respect to a proposed agent and any nonclient
resident of a proposed agent. If that search indicates that the proposed agent or any
nonclient resident of the proposed agent has been so convicted or adjudicated or has
abused a child or client, the organization may not facilitate a delegation of the care
and custody of a child to the proposed agent.
Foster home license exemption. Under current law, a person who provides
care and maintenance for four or fewer children must obtain a license to operate a
foster home. Current law, however, permits a relative or guardian of a child to
provide care and maintenance for a child without obtaining a license to operate a
foster home. This substitute amendment exempts an agent from the requirement
that the agent obtain a license to operate a foster home in order to provide care and
maintenance for the child. The substitute amendment, however, prohibits a parent
from placing a child in a foster home, group home, or inpatient treatment facility by
means of a delegation of powers as provided in the substitute amendment. Under
the substitute amendment, those placements may be made only by means of a
juvenile court order or a voluntary agreement or admission as provided under
current law.
Permissive child abuse reporting. Under current law, certain persons who
have reasonable cause to suspect that a child seen in the course of professional duties
has been abused or neglected or who have reason to believe that such a child has been
threatened with abuse or neglect and that abuse or neglect will occur must report
that suspected or threatened abuse or neglect to the county department of human
services or social services, the sheriff, or the local police department. Any other
person may report suspected or threatened abuse or neglect of a child. This
substitute amendment exempts an agent from the requirement that he or she report
any suspected or threatened abuse or neglect of the child. Instead, the substitute
amendment permits an agent to report any suspected or threatened abuse or neglect
of the child.
Rules. Finally, the substitute amendment requires the Department of
Children and Families to promulgate rules establishing certain requirements and
expectations with respect to an organization and an agent to whom delegation of the
care and custody of a child is facilitated by an organization. Those rules include
training requirements for the staff of an organization and an agent, screening and
assessment requirements for a proposed agent, the expectations of an agent with
respect to the care and custody of the child, and certain monitoring and
communication requirements for an organization.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB30-ASA1, s. 1
1Section
1. 48.60 (2) (a) of the statutes is amended to read:
AB30-ASA1,3,32
48.60
(2) (a) A relative
or, guardian
, or person delegated care and custody of
3a child under s. 48.979 who provides care and maintenance for such children.
AB30-ASA1,4,105
48.62
(2) A relative
or, a guardian of a child
, or a person delegated care and
6custody of a child under s. 48.979 who provides care and maintenance for the child
7is not required to obtain the license specified in this section. The department, county
8department, or licensed child welfare agency as provided in s. 48.75 may issue a
1license to operate a foster home to a relative who has no duty of support under s. 49.90
2(1) (a) and who requests a license to operate a foster home for a specific child who is
3either placed by court order or who is the subject of a voluntary placement agreement
4under s. 48.63. The department, a county department, or a licensed child welfare
5agency may, at the request of a guardian appointed under s. 48.977 or 48.978, ch. 54,
6or ch. 880, 2003 stats., license the guardian's home as a foster home for the guardian's
7minor ward who is living in the home and who is placed in the home by court order.
8Relatives with no duty of support and guardians appointed under s. 48.977 or 48.978,
9ch. 54, or ch. 880, 2003 stats., who are licensed to operate foster homes are subject
10to the department's licensing rules.
AB30-ASA1, s. 3
11Section
3. 48.625 (3) of the statutes is amended to read:
AB30-ASA1,4,1412
48.625
(3) This section does not apply to a foster home licensed under s. 48.62
13(1)
or to a relative or guardian of a child or a person delegated care and custody of
14a child under s. 48.979 who provides care and maintenance for the child.
AB30-ASA1,4,2016
48.63
(2) No person may place a child or offer or hold himself or herself out as
17able to place a child, except as provided in this section. Enrollment of a child by a
18parent or guardian in an educational institution
shall
and delegation of care and
19custody of a child to an agent under s. 48.979 do not constitute a placement for the
20purposes of this section.
AB30-ASA1, s. 5
21Section
5. 48.685 (1) (ag) 1. am. of the statutes is created to read:
AB30-ASA1,4,2322
48.685
(1) (ag) 1. am. A person to whom delegation of the care and custody of
23a child under s. 48.979 has been, or is expected to be, facilitated by an entity.
AB30-ASA1, s. 6
24Section
6. 48.685 (1) (am) of the statutes is amended to read:
AB30-ASA1,5,2
148.685
(1) (am) "Client" means a child who receives direct care or treatment
2services from an entity
or from a caregiver specified in par. (ag) 1. am.
AB30-ASA1, s. 7
3Section
7. 48.685 (1) (ar) of the statutes is amended to read:
AB30-ASA1,5,84
48.685
(1) (ar) "Contractor" means, with respect to an entity, a person, or that
5person's agent, who provides services to the entity under an express or implied
6contract or subcontract, including a person who has staff privileges at the entity
and
7a person to whom delegation of the care and custody of a child under s. 48.979 has
8been facilitated by the entity.
AB30-ASA1, s. 8
9Section
8. 48.685 (1) (b) of the statutes is amended to read:
AB30-ASA1,5,1810
48.685
(1) (b) "Entity" means a child welfare agency that is licensed under s.
1148.60 to provide care and maintenance for children, to place children for adoption,
12or to license foster homes; a foster home that is licensed under s. 48.62; a group home
13that is licensed under s. 48.625; a shelter care facility that is licensed under s. 938.22;
14a child care center that is licensed under s. 48.65 or established or contracted for
15under s. 120.13 (14); a child care provider that is certified under s. 48.651;
an
16organization that facilitates delegations of the care and custody of children under s.
1748.979; or a temporary employment agency that provides caregivers to another
18entity.
AB30-ASA1, s. 9
19Section
9. 48.685 (1) (bm) of the statutes is amended to read:
AB30-ASA1,5,2320
48.685
(1) (bm) "Nonclient resident" means a person who resides, or is expected
21to reside, at an entity
or with a caregiver specified in par. (ag) 1. am., who is not a
22client of the entity
or caregiver, and who has, or is expected to have, regular, direct
23contact with clients of the entity
or caregiver.
AB30-ASA1, s. 10
24Section
10. 48.685 (2) (am) 5. of the statutes is amended to read:
AB30-ASA1,6,13
148.685
(2) (am) 5. Information maintained by the department of health services
2under this section and under ss. 48.651 (2m), 48.75 (1m),
48.979 (1) (b), and 120.13
3(14) regarding any denial to the person of a license, continuation or renewal of a
4license, certification, or a contract to operate an entity for a reason specified in sub.
5(4m) (a) 1. to 5. and regarding any denial to the person of employment at, a contract
6with, or permission to reside at an entity
or of permission to reside with a caregiver
7specified in sub. (1) (ag) 1. am. for a reason specified in sub. (4m) (b) 1. to 5. If the
8information obtained under this subdivision indicates that the person has been
9denied a license, continuation or renewal of a license, certification, a contract,
10employment, or permission to reside as described in this subdivision, the
11department, a county department, an agency contracted with under s. 48.651 (2), a
12child welfare agency, or a school board need not obtain the information specified in
13subds. 1. to 4.
AB30-ASA1, s. 11
14Section
11. 48.685 (2) (b) 1. (intro.) of the statutes is amended to read:
AB30-ASA1,6,1815
48.685
(2) (b) 1. (intro.) Every entity shall obtain all of the following with
16respect to a caregiver specified in sub. (1) (ag) 1. a.
or am. of the entity and with
17respect to a nonclient resident of a caregiver specified in sub. (1) (ag) 1. am. of the
18entity:
AB30-ASA1, s. 12
19Section
12. 48.685 (2) (b) 1. e. of the statutes is amended to read:
AB30-ASA1,7,520
48.685
(2) (b) 1. e. Information maintained by the department of health
21services under this section and under ss. 48.651 (2m), 48.75 (1m),
48.979 (1) (b), and
22120.13 (14) regarding any denial to the person of a license, continuation or renewal
23of a license, certification, or a contract to operate an entity for a reason specified in
24sub. (4m) (a) 1. to 5. and regarding any denial to the person of employment at, a
25contract with, or permission to reside at an entity
or of permission to reside with a
1caregiver specified in sub. (1) (ag) 1. am. for a reason specified in sub. (4m) (b) 1. to
25. If the information obtained under this subd. 1. e. indicates that the person has
3been denied a license, continuation or renewal of a license, certification, a contract,
4employment, or permission to reside as described in this subd. 1. e., the entity need
5not obtain the information specified in subd. 1. a. to d.
AB30-ASA1, s. 13
6Section
13. 48.685 (2) (bd) of the statutes is amended to read:
AB30-ASA1,7,237
48.685
(2) (bd) Notwithstanding pars. (am) and (b) 1., the department, a county
8department, an agency contracted with under s. 48.651 (2), a child welfare agency,
9or a school board is not required to obtain the information specified in par. (am) 1.
10to 5., and an entity is not required to obtain the information specified in par. (b) 1.
11a. to e., with respect to a person under 18 years of age whose background information
12form under sub. (6) (am) indicates that the person is not ineligible to be employed
at,
13contracted with, or permitted to reside at an entity
or permitted to reside with a
14caregiver specified under sub. (1) (ag) 1. am. of the entity for a reason specified in sub.
15(4m) (b) 1. to 5. and with respect to whom the department, county department,
16contracted agency, child welfare agency, school board, or entity otherwise has no
17reason to believe that the person is ineligible to be employed, contracted with, or
18permitted to reside at an entity for any of those reasons. This paragraph does not
19preclude the department, a county department, an agency contracted with under s.
2048.651 (2), a child welfare agency, or a school board from obtaining, at its discretion,
21the information specified in par. (am) 1. to 5. with respect to a person described in
22this paragraph who is a nonclient resident or a prospective nonclient resident of an
23entity.
AB30-ASA1, s. 14
24Section
14. 48.685 (3) (b) of the statutes is amended to read:
AB30-ASA1,8,5
148.685
(3) (b) Subject to par. (bm), every 4 years or at any time within that
2period that an entity considers appropriate, the entity shall request the information
3specified in sub. (2) (b) 1. a. to e. for all persons who are caregivers specified in sub.
4(1) (ag) 1. a.
or am. of the entity and for all nonclient residents of a caregiver specified
5in sub. (1) (ag) 1. am. of the entity.
child child
AB30-ASA1, s. 15
6Section
15. 48.685 (4m) (b) (intro.) of the statutes is amended to read:
AB30-ASA1,8,117
48.685
(4m) (b) (intro.) Notwithstanding s. 111.335, and except as provided in
8sub. (5), an entity may not employ or contract with a caregiver specified in sub. (1)
9(ag) 1. a.
or am. or permit a nonclient resident to reside at the entity
or with a
10caregiver specified in sub. (1) (ag) 1. am. of the entity if the entity knows or should
11have known any of the following:
AB30-ASA1, s. 16
12Section
16. 48.685 (4m) (c) of the statutes is amended to read:
AB30-ASA1,9,213
48.685
(4m) (c) If the background information form completed by a person
14under sub. (6) (am) indicates that the person is not ineligible to be employed or
15contracted with for a reason specified in par. (b) 1. to 5., an entity may employ or
16contract with the person for not more than 60 days pending the receipt of the
17information sought under sub. (2) (am)
1. to 5. or (b) 1. If the background information
18form completed by a person under sub. (6) (am) indicates that the person is not
19ineligible to be permitted to reside at an entity
or with a caregiver specified in sub.
20(1) (ag) 1. am. for a reason specified in par. (b) 1. to 5. and if an entity otherwise has
21no reason to believe that the person is ineligible to be permitted to reside at an entity
22or with that caregiver for any of those reasons, the entity may permit the person to
23reside at the entity
or with the caregiver for not more than 60 days pending receipt
24of the information sought under sub. (2) (am)
or (b) 1. An entity shall provide
1supervision for a person who is employed, contracted with
, or permitted to reside as
2permitted under this paragraph.
AB30-ASA1, s. 17
3Section
17. 48.685 (5) (a) of the statutes is amended to read:
AB30-ASA1,9,194
48.685
(5) (a) Subject to pars. (bm) and (br), the department may license to
5operate an entity, the department in a county having a population of 500,000 or more,
6a county department, or an agency contracted with under s. 48.651 (2) may certify
7under s. 48.651, a county department or a child welfare agency may license under
8s. 48.62, and a school board may contract with under s. 120.13 (14) a person who
9otherwise may not be licensed, certified, or contracted with for a reason specified in
10sub. (4m) (a) 1. to 5., and an entity may employ, contract with, or permit to reside at
11the entity
or permit to reside with a caregiver specified in sub. (1) (ag) 1. am. of the
12entity a person who otherwise may not be employed, contracted with, or permitted
13to reside at the entity
or with that caregiver for a reason specified in sub. (4m) (b) 1.
14to 5., if the person demonstrates to the department, the county department, the
15contracted agency, the child welfare agency, or the school board or, in the case of an
16entity that is located within the boundaries of a reservation, to the person or body
17designated by the Indian tribe under sub. (5d) (a) 3., by clear and convincing evidence
18and in accordance with procedures established by the department by rule or by the
19tribe that he or she has been rehabilitated.
AB30-ASA1,9,2521
48.685
(5m) Notwithstanding s. 111.335, the department may refuse to license
22a person to operate an entity, a county department or a child welfare agency may
23refuse to license a foster home under s. 48.62, and an entity may refuse to employ or
24contract with a caregiver or permit a nonclient resident to reside at the entity
or with
25a caregiver specified in sub. (1) (ag) 1. am. of the entity if the person has been
1convicted of an offense that is not a serious crime, but that is, in the estimation of the
2department, county department, child welfare agency, or entity, substantially
3related to the care of a client. Notwithstanding s. 111.335, the department may
4refuse to license a person to operate a child care center, the department in a county
5having a population of 500,000 or more, a county department, or an agency
6contracted with under s. 48.651 (2) may refuse to certify a child care provider under
7s. 48.651, a school board may refuse to contract with a person under s. 120.13 (14),
8and a child care center that is licensed under s. 48.65 or established or contracted for
9under s. 120.13 (14) or a child care provider that is certified under s. 48.651 may
10refuse to employ or contract with a caregiver or permit a nonclient resident to reside
11at the child care center or child care provider if the person has been convicted of or
12adjudicated delinquent on or after his or her 12th birthday for an offense that is not
13a serious crime, but that is, in the estimation of the department, county department,
14contracted agency, school board, child care center, or child care provider,
15substantially related to the care of a client.
AB30-ASA1, s. 19
16Section
19. 48.685 (6) (am) of the statutes is amended to read:
AB30-ASA1,10,2517
48.685
(6) (am) Except as provided in this paragraph, every 4 years an entity
18shall require all of its caregivers and
all nonclient residents
of the entity or of a
19caregiver specified in sub. (1) (ag) 1. am. of the entity to complete a background
20information form that is provided to the entity by the department. Every year a
day 21child care center that is licensed under s. 48.65 or established or contracted for under
22s. 120.13 (14) or a
day child care provider that is certified under s. 48.651 shall
23require all of its caregivers and nonclient residents to complete a background
24information form that is provided to the
day child care center or
day child care
25provider by the department.
AB30-ASA1,11,10
248.979 Delegation of power by parent.
(1) (a) A parent who has legal
3custody of a child, by a power of attorney that is properly executed by all parents who
4have legal custody of the child, may delegate to an agent, for a period not to exceed
5one year, any of his or her powers regarding the care and custody of the child, except
6the power to consent to the marriage or adoption of the child, the performance or
7inducement of an abortion on or for the child, the termination of parental rights to
8the child, or the enlistment of the child in the U.S. armed forces. A delegation of
9powers under this paragraph does not deprive the parent of any of his or her powers
10regarding the care and custody of the child.
AB30-ASA1,11,2111
(b) If a delegation of powers to an agent under par. (a) is facilitated by an entity,
12as defined in s. 48.685 (1) (b), that entity shall obtain the information specified in s.
1348.685 (2) (b) 1. with respect to the proposed agent and any nonclient resident, as
14defined in s. 48.685 (1) (bm), of the proposed agent. Subject to s. 48.685 (5), if that
15information indicates that the proposed agent may not be a contractor, as defined in
16s. 48.685 (1) (ar), of the entity or that a nonclient resident of the proposed agent may
17not be permitted to reside with the proposed agent for a reason specified in s. 48.685
18(4m) (b) 1. to 5., the entity may not facilitate a delegation of powers to the proposed
19agent under par. (a). The entity shall provide the department of health services with
20information about each person who is denied a delegation of powers or permission
21to reside under this paragraph for a reason specified in s. 48.685 (4m) (b) 1. to 5.
AB30-ASA1,11,2522
(c) A parent who has legal custody of a child may not place the child in a foster
23home, group home, or inpatient treatment facility by means of a delegation of powers
24under par. (a). Those placements may be made only by means of a court order or as
25provided in s. 48.63 or 51.13.
AB30-ASA1,12,2
1(d) A delegation of powers under par. (a) does not prevent or supersede any of
2the following:
AB30-ASA1,12,43
1. An agency, a sheriff, or a police department from receiving and investigating
4a report of suspected or threatened abuse or neglect of the child under s. 48.981.
AB30-ASA1,12,65
2. The child from being taken into and held in custody under ss. 48.19 to 48.21
6or 938.19 to 938.21.
AB30-ASA1,12,77
3. An intake worker from conducting an intake inquiry under s. 48.24 or 938.24.
AB30-ASA1,12,108
4. A court from exercising jurisdiction over the child under s. 48.13 or 938.13.
9This subdivision does not preclude a delegation of powers under par. (a) that is not
10in conflict with a court order granted in the exercise of that jurisdiction.
AB30-ASA1,12,1511
(e) A parent who has delegated his or her powers regarding the care and
12custody of a child under par. (a) may revoke that delegation at any time by executing
13a written revocation and notifying the agent in writing of the revocation. A written
14revocation invalidates the delegation of powers except with respect to acts already
15taken in reliance on the delegation of powers.
AB30-ASA1,12,17
16(2) A power of attorney complies with sub. (1) (a) if the power of attorney
17substantially conforms to the following form:
AB30-ASA1,12,18
18power of attorney