AB599: Bill Text

LRB-3802/2

GMM:wlj:ph

2011 - 2012 LEGISLATURE

2011 Assembly BILL 599

February 20, 2012 - Introduced by Representatives Kerkman, Grigsby, Loudenbeck and Spanbauer. Referred to Committee on Children and Families.

AB599,3,7 An Act to renumber and amend 48.355 (2b), 48.38 (1) (b), 48.38 (4) (fm), 938.355 (2b), 938.38 (1) (b) and 938.38 (4) (fm); to amend 48.028 (4) (g) 1. d., 48.07 (5) (c), 48.21 (5) (d), 48.235 (4) (a) 1., 48.235 (4) (a) 2., 48.235 (4m) (a) 1., 48.235 (4m) (a) 2., 48.236 (3) (b), 48.299 (4) (b), 48.315 (2m) (b), 48.32 (1) (b) 1. c., 48.32 (1) (c), 48.33 (4) (a), 48.33 (4) (c), 48.335 (3g) (c), 48.335 (4), 48.355 (2) (b) 5., 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) (title), 48.355 (2e) (a), 48.355 (2e) (b), 48.355 (2e) (c), 48.356 (1), 48.357 (1) (am) 1., 48.357 (1) (c) 1., 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 (1) (a), 48.371 (1) (b), 48.371 (3) (intro.), 48.371 (4), 48.371 (5), subchapter VII (title) of chapter 48 [precedes 48.38], 48.38 (title), 48.38 (1) (am), 48.38 (2) (intro.), 48.38 (3), 48.38 (4) (intro.), 48.38 (4) (ar), 48.38 (4) (br) 2., 48.38 (4) (f) 3., 48.38 (4) (fg) (intro.), 48.38 (4) (fg) 5., 48.38 (4) (i), 48.38 (4m) (title), 48.38 (4m) (a), 48.38 (4m) (c), 48.38 (5) (a), 48.38 (5) (ag), 48.38 (5) (am), 48.38 (5) (bm) 2., 48.38 (5) (c) 2., 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) (d), 48.38 (5m) (title), 48.38 (5m) (a), 48.38 (5m) (b), 48.38 (5m) (c) 2., 48.38 (5m) (d), 48.38 (5m) (e), 48.38 (5m) (f), 48.38 (6) (a), 48.38 (6) (d), 48.417 (1) (a), 48.417 (2) (b), 48.417 (2) (c), 48.417 (2) (cm), 48.425 (1) (c), 48.43 (1) (c), 48.43 (1) (cm), 48.43 (2) (b), 48.43 (5) (a), 48.43 (5) (b) 1., 48.43 (5) (b) 2., 48.43 (5) (c), 48.43 (5m), 48.63 (4), 48.63 (5) (c), 48.63 (5) (d) 1., 48.63 (5) (d) 2., 48.63 (5) (d) 3., 48.63 (5) (d) 4., 48.63 (5) (d) 6., 48.831 (4) (e), 48.834 (1), 48.834 (2), 48.977 (3r), 48.977 (4) (e), 48.977 (4) (i), 49.471 (4) (a) 4. a., 49.471 (4) (b) 4. a., 146.82 (2) (a) 18m., 252.15 (3m) (d) 15., 757.69 (1) (g) 14., 767.41 (3) (b), 767.41 (3) (c), 808.075 (4) (a) 8., 808.075 (4) (fn) 8., 938.028 (4) (f) 1. d., 938.21 (5) (d), 938.235 (4) (a) 1., 938.235 (4) (a) 2., 938.315 (2m) (b), 938.32 (1) (c) 1. c., 938.32 (1) (d), 938.33 (4) (a), 938.33 (4) (c), 938.335 (3g) (c), 938.335 (4), 938.355 (2) (b) 5., 938.355 (2) (b) 6., 938.355 (2b) (title), 938.355 (2c) (b), 938.355 (2d) (b) (intro.), 938.355 (2d) (c), 938.355 (2e) (title), 938.355 (2e) (a), 938.355 (2e) (b), 938.355 (2e) (c), 938.356 (1), 938.357 (1) (am) 1., 938.357 (1) (c) 1., 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 (1) (a), 938.371 (1) (b), 938.371 (3) (intro.), 938.371 (4), 938.371 (5), subchapter VII (title) of chapter 938 [precedes 938.38], 938.38 (title), 938.38 (1) (am), 938.38 (2) (intro.), 938.38 (3) (intro.), 938.38 (3) (a), 938.38 (3) (b), 938.38 (4) (intro.), 938.38 (4) (ar), 938.38 (4) (br) 2., 938.38 (4) (f) 3., 938.38 (4) (fg) (intro.), 938.38 (4) (fg) 5., 938.38 (4) (i), 938.38 (4m) (title), 938.38 (4m) (a), 938.38 (4m) (c), 938.38 (5) (a), 938.38 (5) (ag), 938.38 (5) (am), 938.38 (5) (bm) 2., 938.38 (5) (c) 2., 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) (d), 938.38 (5m) (title), 938.38 (5m) (a), 938.38 (5m) (b), 938.38 (5m) (c) 2., 938.38 (5m) (d), 938.38 (5m) (e), 938.38 (5m) (f), 938.38 (6) (a) and 938.38 (6) (d); and to create 48.355 (2b) (a), 48.358, 48.38 (4) (fm) 1., 48.38 (5) (c) 6m., 938.355 (2b) (a), 938.358, 938.38 (4) (fm) 1. and 938.38 (5) (c) 6m. of the statutes; relating to: case 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 bill changes the term "permanency plan" to "case plan" and makes certain other changes relating to case 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 work with an adoption agency 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 (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 bill eliminates the authority of an agency to make concurrent reasonable efforts and instead permits an agency to engage in concurrent planning, which the bill defines as reasonable efforts to work simultaneously towards achieving more than one permanency goal for a child. Under the bill, 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 and the juvenile court must make a finding as to whether the agency has made reasonable efforts to achieve the primary goal of the concurrent plan. If an agency determines to engage in concurrent planning for a child, the child's case plan must include the rationale for that determination and a description of the concurrent plan and the primary and concurrent goals of the concurrent plan. In addition, if a child's case plan calls for concurrent planning, the court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court) or a case plan review panel appointed by the juvenile court, in reviewing the child's case plan, must determine the appropriateness, in light of the concurrent planning standards, of each of the permanency goals of the concurrent plan and, if the juvenile court or case plan review panel does not approve of any one or more of those goals, that court or panel must include in its determinations the reasons for that disapproval.

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 bill — trial reunifications. This bill provides a similar procedure under which the juvenile court may order a trial reunification, which the bill defines as a return of a child who is placed in an out-of-home placement to the home of his or her parent or other home from which the child was removed for a specified and limited period for the purpose of determining the appropriateness of permanently returning the child to that home. The bill, however, does not permit an emergency trial reunification. Under the bill, if an emergency condition necessitates an immediate return of a child to the home of his or her parent or other home from which the child was removed, 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 bill, the juvenile court may order a trial reunification on the request of the person or agency primarily responsible for implementing the dispositional order, or on its own motion. 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 case 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 case 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 or the person or agency primarily responsible for implementing the dispositional order makes an emergency change in placement. At the end of a trial reunification, the person or agency primarily responsible for implementing the dispositional order may return the child to an out-of-home placement without further order of the juvenile court or may request the juvenile court to order a change in placement changing the placement of the child to the home or his or her parent or other home from which the child was removed.

The bill also permits the person or agency primarily responsible for implementing the dispositional order to request an extension of the trial reunification. The request must contain a statement describing how the trial reunification continues to be in the best interests of the child and continues to meet the objectives of the child's case plan, 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 and continues to meet the objectives of the child's case plan, the juvenile court must grant an order extending the trial reunification for a period specified by the juvenile court not to exceed 60 days. Any number of extensions may be granted, but the total period for a trial reunification may not exceed 150 days.

In addition, the bill permits the person or agency primarily responsible for implementing the dispositional order to request the juvenile court to revoke a trial reunification if that person or agency has reasonable cause to suspect that a child who has been returned to the home of his or her parent or other home from which the child was removed for a trial reunification has been abused or neglected, has reason to believe that such a child has been threatened with abuse or neglect and that abuse or neglect of the child is likely to occur, or otherwise has reason to believe that the trial reunification is no longer in the best interest of the child. The revocation request must state the reasons for the proposed revocation, 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 child, while returned to the home of his or her parent or other home from which the child was removed for a trial reunification, has been abused or neglected, or has been threatened with abuse or neglect and that abuse or neglect of the child is likely to occur, or 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 and returning the child to an out-of-home placement.

Finally, with respect to trial reunifications, the bill permits the person or agency primarily responsible or implementing the dispositional order to make an emergency change in placement if emergency conditions necessitate an immediate removal of the child from the home of his or her parent or other home from which the child has been removed.

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 bill changes the term "alternative permanent placement" to "other planned permanent living arrangement,", requires the arrangement to include a long-term relationship between the child and an adult, and eliminates independent living as a planned permanent living arrangement option. The bill also permits a child's case 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 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. If an agency makes that determination, the child's case plan must include 1) a concurrent plan towards achieving the 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 as well as the permanency goal of placing the child in some other planned permanent living arrangement; and 2) the compelling reason why it would not be in the best interests of the child to return the child to his or her home or to place the child for adoption, with a guardian, or with a fit and willing relative and the efforts made to achieve that goal, including, if appropriate, through an out-of-state placement.

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:

AB599, s. 1 Section 1. 48.028 (4) (g) 1. d. of the statutes is amended to read:

AB599,6,6 48.028 (4) (g) 1. d. Arrangements were made to provide natural and unsupervised family interaction in the most natural setting that can ensure the Indian child's safety, as appropriate to the goals of the Indian child's permanency case plan, including arrangements for transportation and other assistance to enable family members to participate in that interaction.

AB599, s. 2 Section 2. 48.07 (5) (c) of the statutes is amended to read:

AB599,7,12 48.07 (5) (c) Training. A court-appointed special advocate program shall require a volunteer or employee of the program selected under par. (b) to complete a training program before the volunteer or employee may be designated as a court-appointed special advocate under s. 48.236 (1). The training program shall include instruction on recognizing child abuse and neglect, cultural competency, as defined in s. 48.982 (1) (bm), child development, the procedures of the court, permanency case planning, the activities of a court-appointed special advocate under s. 48.236 (3) and information gathering and documentation, and shall include observation of a proceeding under s. 48.13. A court-appointed special advocate program shall also require each volunteer and employee of the program selected under par. (b) to complete continuing training annually.

AB599, s. 3 Section 3. 48.21 (5) (d) of the statutes is amended to read:

AB599,7,18 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 case plan for the child.

AB599, s. 4 Section 4. 48.235 (4) (a) 1. of the statutes is amended to read:

AB599,7,21 48.235 (4) (a) 1. Participate in permanency case planning under ss. 48.38 and 48.43 (5).

AB599, s. 5 Section 5. 48.235 (4) (a) 2. of the statutes is amended to read:

AB599,7,24 48.235 (4) (a) 2. Petition for a change in placement under s. 48.357 or a trial reunification under s. 48.358.

AB599, s. 6 Section 6. 48.235 (4m) (a) 1. of the statutes is amended to read:

AB599,8,2 48.235 (4m) (a) 1. Participate in permanency case planning under ss. 48.38 and 48.43 (5) after the child is born.

AB599, s. 7 Section 7. 48.235 (4m) (a) 2. of the statutes is amended to read:

AB599,8,5 48.235 (4m) (a) 2. Petition for a change in placement under s. 48.357 or a trial reunification under s. 48.358.

AB599, s. 8 Section 8. 48.236 (3) (b) of the statutes is amended to read:

AB599,8,15 48.236 (3) (b) Maintain regular contact with the child for whom the designation is made; monitor the appropriateness and safety of the environment of the child, the extent to which the child and the child's family are complying with any consent decree or dispositional order of the court and with any permanency case plan under s. 48.38, and the extent to which any agency that is required to provide services for the child and the child's family under a consent decree, dispositional order or permanency case plan is providing those services; and, based on that regular contact and monitoring, provide information to the court in the form of written reports or, if requested by the court, oral testimony.

AB599, s. 9 Section 9. 48.299 (4) (b) of the statutes is amended to read:

AB599,9,6 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, s. 10 Section 10. 48.315 (2m) (b) of the statutes is amended to read:

AB599,9,13 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 of the child's permanency case 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, s. 11 Section 11. 48.32 (1) (b) 1. c. of the statutes is amended to read:

AB599,9,18 48.32 (1) (b) 1. c. If a permanency case 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 goal of the child's permanency case plan, including, if appropriate, through an out-of-state placement,.

AB599, s. 12 Section 12. 48.32 (1) (c) of the statutes is amended to read:

AB599,9,24 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 case plan for the child.

AB599, s. 13 Section 13. 48.33 (4) (a) of the statutes is amended to read:

AB599,10,1 48.33 (4) (a) A permanency case plan prepared under s. 48.38.

AB599, s. 14 Section 14. 48.33 (4) (c) of the statutes is amended to read:

AB599,10,13 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 case 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 goal of the child's permanency case plan, including, if appropriate, through an out-of-state placement,.

AB599, s. 15 Section 15. 48.335 (3g) (c) of the statutes is amended to read:

AB599,10,18 48.335 (3g) (c) That, if a permanency case plan has previously been prepared for the child, the county department, department, or agency has made reasonable efforts to achieve the goal of the child's permanency case plan, including, if appropriate, through an out-of-state placement,.

AB599, s. 16 Section 16. 48.335 (4) of the statutes is amended to read:

AB599,10,24 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, s. 17 Section 17. 48.355 (2) (b) 5. of the statutes is amended to read:

AB599,11,2 48.355 (2) (b) 5. For a child placed outside his or her home pursuant to an order under s. 48.345, a permanency case plan under s. 48.38 if one has been prepared.

AB599, s. 18 Section 18. 48.355 (2) (b) 6. of the statutes is amended to read:

AB599,11,21 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 case 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 goal of the child's permanency case 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, s. 19 Section 19. 48.355 (2b) (title) of the statutes is amended to read:

AB599,11,23 48.355 (2b) (title) Concurrent reasonable efforts permitted planning.