Amendment ASA1-AB599

LRBs0380/3

GMM:wlj&cjs:jf

2011 - 2012 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2011 ASSEMBLY BILL 599

March 8, 2012 - Offered by Representative Kerkman.

AB599-ASA1,2,12 An Act to renumber and amend 48.355 (2b) and 938.355 (2b); to amend 48.21 (5) (d), 48.299 (4) (b), 48.315 (2m) (b), 48.32 (1) (b) 1. c., 48.32 (1) (c), 48.33 (4) (c), 48.335 (3g) (c), 48.335 (4), 48.355 (2) (b) 6., 48.355 (2b) (title), 48.355 (2c) (b), 48.355 (2d) (b) (intro.), 48.355 (2d) (c), 48.355 (2e) (b), 48.357 (2v) (c), 48.363 (1) (a), 48.365 (2g) (b) 2., 48.365 (2g) (b) 3., 48.365 (2m) (a) 1., 48.365 (2m) (a) 1m., 48.365 (2m) (a) 3., 48.365 (2m) (ad), 48.365 (7), 48.371 (5), 48.38 (2) (intro.), 48.38 (4) (ar), 48.38 (4) (f) 3., 48.38 (4) (fg) (intro.), 48.38 (4) (fg) 5., 48.38 (4) (fm), 48.38 (4) (i), 48.38 (4m) (title), 48.38 (5) (title), 48.38 (5) (a), 48.38 (5) (am), 48.38 (5) (c) 5., 48.38 (5) (c) 6. (intro.), 48.38 (5) (c) 6. d., 48.38 (5) (c) 7., 48.38 (5) (f), 48.38 (5m) (title), 48.38 (5m) (a), 48.38 (5m) (b), 48.38 (5m) (f), 48.38 (6) (a), 48.417 (1) (a), 48.43 (1) (cm), 48.43 (5m), 48.63 (5) (d) 4., 48.977 (4) (i) (title), 757.69 (1) (g) 14., 938.21 (5) (d), 938.315 (2m) (b), 938.32 (1) (c) 1. c., 938.32 (1) (d), 938.33 (4) (c), 938.335 (3g) (c), 938.335 (4), 938.355 (2) (b) 6., 938.355 (2c) (b), 938.355 (2d) (b) (intro.), 938.355 (2d) (c), 938.355 (2e) (b), 938.357 (2v) (c), 938.363 (1) (a), 938.365 (2g) (b) 2., 938.365 (2g) (b) 3., 938.365 (2m) (a) 1., 938.365 (2m) (a) 1m., 938.365 (2m) (a) 3., 938.365 (2m) (ad), 938.365 (7), 938.371 (5), 938.38 (2) (intro.), 938.38 (4) (ar), 938.38 (4) (f) 3., 938.38 (4) (fg) (intro.), 938.38 (4) (fg) 5., 938.38 (4) (fm), 938.38 (4) (i), 938.38 (4m) (title), 938.38 (5) (title), 938.38 (5) (a), 938.38 (5) (am), 938.38 (5) (c) 5., 938.38 (5) (c) 6. (intro.), 938.38 (5) (c) 6. d., 938.38 (5) (c) 7., 938.38 (5) (f), 938.38 (5m) (title), 938.38 (5m) (a), 938.38 (5m) (b), 938.38 (5m) (f) and 938.38 (6) (a); and to create 48.355 (2b) (a), 48.358, 48.38 (5) (c) 5m., 938.355 (2b) (a), 938.358 and 938.38 (5) (c) 5m. of the statutes; relating to: permanency planning for a child placed in out-of-home care, including concurrent permanency goals, trial reunifications, and planned permanent living arrangements for such a child.

Analysis by the Legislative Reference Bureau

Introduction

Under current law, for each child living in an out-of-home placement, the county department of human services or social services, the licensed child welfare agency, or the Department of Children and Families (DCF) that placed the child or arranged the placement of the child or the agency assigned primary responsibility for providing services to the child (collectively "agency") must prepare a permanency plan for the child. A permanency plan must describe, among other things, the goal or goals of the permanency plan, with those goals being either the safe return of the child to his or her home or placement of the child for adoption, with a guardian, with a fit and willing relative, or in some other alternative permanent placement, such as sustaining care, independent living, or long-term foster care.

This substitute amendment makes certain changes relating to permanency planning for a child placed in out-of-home care, including changes relating to: 1) concurrent planning; 2) trial reunifications; and 3) planned permanent living arrangements, for such a child.

Concurrent planning

Under current law, an agency, at the same time as the agency is making reasonable efforts to prevent the removal of a child from his or her home or to make it possible for the child to return home, may make reasonable efforts to place the child for adoption, with a guardian, with a fit and willing relative, or in some other alternative permanent placement (concurrent reasonable efforts). If an agency is making concurrent reasonable efforts, the child's permanency plan must include the goals of the permanency plan.

This substitute amendment permits an agency to engage in concurrent planning, which the substitute amendment defines as appropriate efforts to work simultaneously towards achieving more than one permanency goal for a child. Under the substitute amendment, an agency must determine, in accordance with standards established by DCF (concurrent planning standards) whether to engage in concurrent planning. If, according to the concurrent planning standards, concurrent planning is required, the agency must engage in concurrent planning unless the court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court) or a permanency review panel appointed by the juvenile court determines that concurrent planning is inappropriate. If an agency determines to engage in concurrent planning for a child, the child's permanency plan must include the rationale for that determination, a description of the concurrent plan, and the permanency and concurrent permanency goals of the permanency plan. In addition, the juvenile court review panel, in reviewing a child's permanency plan, must determine the continuing appropriateness, according to the concurrent planning standards, of the permanency goal and, if the juvenile court or panel considers appropriate, any concurrent permanency goals for the child. If the juvenile court or panel does not approve of any of those goals, or if the juvenile court or panel determines that a concurrent permanency goal is appropriate, that court or panel must determine the permanency goal and, if appropriate, any concurrent permanency goal for the child.

Trial reunifications

Current law — changes in placement. Under current law, the juvenile court, on the request of the person or agency primarily responsible for implementing a dispositional order of the juvenile court, may order a change in placement for a child placed outside of his or her home under a dispositional order of the juvenile court. The juvenile court may order the change in placement without a hearing, unless a party receiving the notice files an objection. Current law also permits the person or agency primarily responsible for implementing the dispositional order to make an emergency change in placement if emergency conditions necessitate an immediate change in placement.

The substitute amendment — trial reunifications. This substitute amendment provides a similar procedure under which the juvenile court may order a trial reunification, which the substitute amendment defines as a period of seven consecutive days or longer, but not exceeding 150 days, during which a child who is placed in an out-of-home placement resides in the home of the relative of the child from which the child was removed or in the home of either of the child's parents for the purpose of determining the appropriateness of changing the placement of the child to that home. The substitute amendment, however, does not permit an emergency trial reunification. Under the substitute amendment, if an emergency condition necessitates an immediate removal of the child from his or her out-of-home placement, the person or agency primarily responsible for implementing the dispositional order must make an emergency change in placement as provided under current law.

Under the substitute amendment, no trial reunification may occur without a juvenile court order and only the person or agency primarily responsible for implementing the dispositional order may request the juvenile court to order a trial reunification. Notice of the proposed trial reunification must 1) be provided to the child, the parent, guardian, and legal custodian of the child, any foster parent or other physical custodian of the child, the child's court-appointed special advocate, all parties who are bound by the dispositional order, and, in the case of an Indian child, the Indian child's Indian custodian and tribe; and 2) contain a statement describing why the trial reunification is in the best interests of the child and a statement describing how the trial reunification satisfies the objectives of the child's permanency plan. The juvenile court may order the trial reunification without a hearing, unless a party receiving the notice files an objection.

If the juvenile court finds that the trial reunification is in the best interests of the child and that the trial reunification satisfies the objectives of the child's permanency plan, the juvenile court must grant an order authorizing the trial reunification. A trial reunification terminates 90 days after the date of the order, unless the juvenile court specifies a shorter period in the order, extends the trial reunification, or revokes the trial reunification. Unless a trial reunification is revoked, at the end of a trial reunification, the person or agency primarily responsible for implementing the dispositional order must return the child to his or her previous out-of-home placement, request a change in placement of the child to a new out-of-home placement, or request a change-in-placement of the child to the trial reunification home.

The substitute amendment also permits the person or agency primarily responsible for implementing the dispositional order to request an extension of a trial reunification. The request must contain a statement describing how the trial reunification continues to be in the best interests of the child, and the same notice and hearing requirements that apply to an original request for a trial reunification also apply to a request for an extension of a trial reunification. If the juvenile court finds that the trial reunification continues to be in the best interests of the child, the juvenile court must grant an order extending the trial reunification for a period specified by the juvenile court. Any number of extensions may be granted, but the total period for a trial reunification may not exceed 150 days.

In addition, the substitute amendment permits the person or agency primarily responsible for implementing the dispositional order to remove the child from the trial reunification home and place the child in the child's previous out-of-home placement or in a new out-of-home placement, without prior juvenile court order, if that person or agency determines, based on current circumstances, that the trial reunification is no longer in the best interests of the child.

If the person or agency removes the child from the trial reunification home and places the child in the child's previous out-of-home placement, within three days after that removal, that person or agency must submit a request for revocation of the trial reunification to the juvenile court that ordered the trial reunification and must cause notice of the request to be provided to all persons who are entitled to receive notice of the original trial reunification, and the same notice and hearing requirements that apply to an original request for a trial reunification also apply to a request for a revocation of a trial reunification. If the juvenile court finds that the trial reunification is no longer in the best interests of the child, the juvenile court must grant an order revoking the trial reunification.

If the person or agency removes the child from the trial reunification home and places the child in a new out-of-home placement, within three days after that removal, that person or agency must request a change in placement as provided under current law, and the change-in-placement procedures provided under current law apply. If the juvenile court grants a change-in-placement order, the trial reunification is revoked.

Other planned permanent living arrangement

Under current law, if a goal of a child's permanency plan is an alternative permanent placement, the permanency plan must document a compelling reason why it would not be in the best interests of the child to pursue the safe return of the child to his or her home or placement of the child for adoption, with a guardian, or with a fit and willing relative.

This substitute amendment changes the term "alternative permanent placement" to "other planned permanent living arrangement," requires the arrangement to include an appropriate enduring, relationship between the child and an adult, and eliminates independent living as a planned permanent living arrangement option. The substitute amendment also permits a child's permanency plan to include the permanency goal of placement of the child in a planned permanent living arrangement only if the agency determines that there is a compelling reason why it currently would not be in the best interests of the child to pursue the safe return of the child to his or her home or placement of the child for adoption, with a guardian, or with a fit and willing relative as the permanency goal for the child. If an agency makes that determination, the child's permanency plan must include a statement of that compelling reason and, notwithstanding that compelling reason, a concurrent plan towards achieving the concurrent permanency goal of safely returning the child to his or her home or placing the child for adoption, with a guardian, or with a fit and willing relative in addition to the permanency goal of placing the child in some other planned permanent living arrangement.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB599-ASA1, s. 1 Section 1. 48.21 (5) (d) of the statutes is amended to read:

AB599-ASA1,6,2 48.21 (5) (d) If the judge or circuit court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, the judge or circuit court commissioner shall hold a hearing under s. 48.38 (4m) within 30 days after the date of that finding to determine the permanency plan goal and, if applicable, any concurrent permanency goals for the child.

AB599-ASA1, s. 2 Section 2. 48.299 (4) (b) of the statutes is amended to read:

AB599-ASA1,6,18 48.299 (4) (b) Except as provided in s. 901.05, neither common law nor statutory rules of evidence are binding at a hearing for a child held in custody under s. 48.21, a hearing for an adult expectant mother held in custody under s. 48.213, a runaway home hearing under s. 48.227 (4), a dispositional hearing, or a hearing about changes in placement, trial reunifications, revision of dispositional orders, extension of dispositional orders, or termination of guardianship orders entered under s. 48.977 (4) (h) 2. or (6) or 48.978 (2) (j) 2. or (3) (g). At those hearings, the court shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant, or unduly repetitious testimony or evidence that is inadmissible under s. 901.05. Hearsay evidence may be admitted if it has demonstrable circumstantial guarantees of trustworthiness. The court shall give effect to the rules of privilege recognized by law. The court shall apply the basic principles of relevancy, materiality, and probative value to proof of all questions of fact. Objections to evidentiary offers and offers of proof of evidence not admitted may be made and shall be noted in the record.

AB599-ASA1, s. 3 Section 3. 48.315 (2m) (b) of the statutes is amended to read:

AB599-ASA1,7,2 48.315 (2m) (b) The court making an initial finding under s. 48.38 (5m) that the agency primarily responsible for providing services to the child has made reasonable efforts to achieve the goals permanency goal of the child's permanency plan more than 12 months after the date on which the child was removed from the home or making any subsequent findings under s. 48.38 (5m) as to those reasonable efforts more than 12 months after the date of a previous finding as to those reasonable efforts.

AB599-ASA1, s. 4 Section 4. 48.32 (1) (b) 1. c. of the statutes is amended to read:

AB599-ASA1,7,7 48.32 (1) (b) 1. c. If a permanency plan has previously been prepared for the child, a finding as to whether the county department, department, or agency has made reasonable efforts to achieve the permanency goal of the child's permanency plan, including, if appropriate, through an out-of-state placement,.

AB599-ASA1, s. 5 Section 5. 48.32 (1) (c) of the statutes is amended to read:

AB599-ASA1,7,13 48.32 (1) (c) If the judge or circuit court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, the judge or circuit court commissioner shall hold a hearing under s. 48.38 (4m) within 30 days after the date of that finding to determine the permanency plan goal and, if applicable, any concurrent permanency goals for the child.

AB599-ASA1, s. 6 Section 6. 48.33 (4) (c) of the statutes is amended to read:

AB599-ASA1,7,25 48.33 (4) (c) Specific information showing that continued placement of the child in his or her home would be contrary to the welfare of the child, specific information showing that the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to the child has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies, and, if a permanency plan has previously been prepared for the child, specific information showing that the county department, department, or agency has made reasonable efforts to achieve the permanency goal of the child's permanency plan, including, if appropriate, through an out-of-state placement,.

AB599-ASA1, s. 7 Section 7. 48.335 (3g) (c) of the statutes is amended to read:

AB599-ASA1,8,5 48.335 (3g) (c) That, if a permanency plan has previously been prepared for the child, the county department, department, or agency has made reasonable efforts to achieve the permanency goal of the child's permanency plan, including, if appropriate, through an out-of-state placement,.

AB599-ASA1, s. 8 Section 8. 48.335 (4) of the statutes is amended to read:

AB599-ASA1,8,11 48.335 (4) At hearings under this section, s. 48.357, 48.358, 48.363, or 48.365, on the request of any party, unless good cause to the contrary is shown, the court may admit testimony on the record by telephone or live audiovisual means, if available, under s. 807.13 (2). The request and the showing of good cause may be made by telephone.

AB599-ASA1, s. 9 Section 9. 48.355 (2) (b) 6. of the statutes is amended to read:

AB599-ASA1,9,5 48.355 (2) (b) 6. If the child is placed outside the home, a finding that continued placement of the child in his or her home would be contrary to the welfare of the child, a finding as to whether the county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services under a court order has made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, unless the court finds that any of the circumstances specified in sub. (2d) (b) 1. to 5. applies, and, if a permanency plan has previously been prepared for the child, a finding as to whether the county department, department, or agency has made reasonable efforts to achieve the permanency goal of the child's permanency plan, including, if appropriate, through an out-of-state placement. The court shall make the findings specified in this subdivision on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the court order,. A court order that merely references this subdivision without documenting or referencing that specific information in the court order or an amended court order that retroactively corrects an earlier court order that does not comply with this subdivision is not sufficient to comply with this subdivision.

AB599-ASA1, s. 10 Section 10. 48.355 (2b) (title) of the statutes is amended to read:

AB599-ASA1,9,7 48.355 (2b) (title) Concurrent reasonable efforts permitted planning.

AB599-ASA1, s. 11 Section 11. 48.355 (2b) of the statutes is renumbered 48.355 (2b) (b) and amended to read:

AB599-ASA1,9,25 48.355 (2b) (b) A county department, the department, in a county having a population of 500,000 or more, or the agency primarily responsible for providing services to a child under a court order may, at the same time as the county department, department, or agency is making the reasonable efforts required under sub. (2) (b) 6. to prevent the removal of the child from the home or to make it possible for the child to return safely to his or her home, work with the department, a county department under s. 48.57 (1) (e) or (hm), or a child welfare agency licensed under s. 48.61 (5) in making reasonable efforts to place the child for adoption, with a guardian, with a fit and willing relative, or in some other alternative permanent placement, including reasonable efforts to identify an appropriate out-of-state placement shall determine, in accordance with standards established by the department, whether to engage in concurrent planning. If, according to those standards, concurrent planning is required, the county department, department, or agency shall engage in concurrent planning unless the court or permanency review panel determines under s. 48.38 (5) (c) 5m. that concurrent planning is inappropriate.

AB599-ASA1, s. 12 Section 12. 48.355 (2b) (a) of the statutes is created to read: