SB560: Bill Text

LRB-1762/1

GMM:cjs:jm

2011 - 2012 LEGISLATURE

2011 Senate BILL 560

March 14, 2012 - Introduced by Senator Risser. Referred to Committee on Senate Organization.

SB560,2,6 An Act to repeal 48.978 (2) (e) 4., 48.978 (2) (f) 4. and 938.345 (4); to renumber and amend 54.56, 54.57 and 808.075 (4) (f) 3.; to amend 48.02 (8), 48.023 (intro.), 48.023 (3), 48.023 (4), 48.09 (5), 48.14 (2) (b), 48.14 (11), 48.185 (2), 48.235 (1) (c), 48.255 (1) (cm), 48.255 (1m) (d), 48.299 (4) (a), 48.299 (4) (b), 48.299 (6) (intro.), 48.299 (6) (d), 48.299 (7), 48.345 (intro.), 48.345 (3) (a), 48.368 (1), 48.42 (1) (d), 48.62 (2), 48.831 (1), 48.831 (1m) (e), 48.977 (2) (a), 48.977 (2) (e), 48.977 (2) (f), 48.977 (4) (b) 3., 48.977 (4) (b) 5., 48.977 (4) (b) 6., 48.977 (4) (c) 2., 48.977 (4) (i), 48.977 (6) (c), 48.977 (7) (b) 3., 48.977 (7) (d) 3., 48.977 (8), 48.978 (2) (a) 1., 48.978 (2) (a) 2., 48.978 (2) (a) 3., 48.978 (2) (b) 6., 48.978 (2) (b) 7., 48.978 (2) (b) 8., 48.978 (2) (b) 10., 48.978 (2) (b) 11., 48.978 (2) (e) 1., 48.978 (2) (e) 2., 48.978 (2) (f) 1., 48.978 (2) (f) 2., 48.978 (2) (f) 5., 48.978 (3) (b) 2., 48.978 (3) (e) 1., 48.978 (3) (e) 3., 48.978 (3) (g) 3., 48.978 (3) (g) 4., 48.978 (3) (g) 5., 48.978 (7), 49.32 (1) (am), 51.30 (4) (b) 18. a., 51.30 (4) (b) 18. c., 54.01 (10), 54.10 (1), 54.52 (1), 55.03 (1), 55.08 (1) (b), 55.08 (2) (a), 55.10 (4) (intro.), 115.76 (12) (b) 2., 118.125 (2) (L), 146.82 (2) (a) 9. a., 146.82 (2) (a) 9. c., 214.37 (4) (k) 1., 215.26 (8) (e) 1., 757.69 (1m) (e), 808.075 (4) (a) 11., 814.66 (1) (m), 938.02 (8), 938.255 (1) (cm), 938.34 (3) (a), 938.34 (3) (c), 938.345 (1) (e), 938.355 (6) (an) 1., 938.355 (6) (b) and 938.355 (6m) (am) 1.; and to create 48.235 (3) (c), 48.976, 48.977 (4) (cm) 1m., 48.978 (2) (d) 1m., 48.981 (7) (a) 11v., 808.075 (4) (a) 9m. and 808.075 (4) (a) 13. of the statutes; relating to: guardianships of children.

Analysis by the Legislative Reference Bureau

Introduction

Current law permits the court assigned to exercise jurisdiction under the Children's Code (juvenile court) to appoint a guardian of the person of a child under the Children's Code only under certain circumstances, including:

1. When a child does not have a living parent and a finding as to the adoptability of the child is sought.

2. When a child who has been adjudged to be in need of protection or services under the Children's Code on any grounds other than on the grounds of relinquishment of custody of not having been immunized as required by law, or adjudged to be in need of protection or services under the Juvenile Justice Code on the grounds of uncontrollability, and placed outside the home is likely to be placed in the home of the guardian for an extended period or until the child attains the age of 18 years, it is not in the best interests of the child that a petition for termination of parental rights be filed, and the child's parent is neglecting, refusing, or unable to carry out the duties of a guardian (protection or services guardianship).

3. When a parent wishes to have a standby guardian appointed to assume the duties and authority of guardianship on the incapacity, debilitation, or death of the parent.

Under any other circumstances, however, the chapter of the statutes governing guardianships generally, which include guardianships of the estates of children and guardianships of the persons and estates of adults who are found incompetent, govern a guardianship of the person of a child.

This bill removes guardianships of the persons of children from the chapter of the statutes governing guardianships generally and instead creates a new provision in the Children's Code that may be used for the appointment of a guardian of the person of a child. The bill also makes certain changes relating to protection or services guardianships, standby guardianships, and protective placement of children.

The bill

Types of guardianships

Full guardianships. Under the bill, the juvenile court may appoint a guardian to be a child's full guardian when the child's parents are unfit, unwilling, or unable to provide for the care, custody, and control of the child or when other compelling facts and circumstances demonstrate that a full guardianship is necessary.

Under current law, a full 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. Those duties and authority include: 1) the authority to consent to marriage, enlistment in the U.S. Armed Forces, major medical, psychiatric, and surgical treatment, and to obtaining a driver's license; 2) the authority to represent the child in legal actions and to make other decisions of substantial legal significance concerning the child; 3) the right and duty of reasonable visitation of the child; and 4) the rights and responsibilities of legal custody, which rights and responsibilities 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.

This bill expands the duties and authority of a full guardian of a child to include the authority to determine reasonable visitation with the child, the rights and responsibilities of physical custody of the child, and the right to change the residence of the child to another state. The bill also requires the full guardian of a child to notify the court immediately of any change of address of the child or guardian and to make annual reports to the court on the condition of the child.

In addition, the bill specifies that a guardian acting on behalf of a child may exercise only those powers that the guardian is authorized to exercise by statute or juvenile court order and that the juvenile court may authorize a guardian to exercise only those powers that are necessary to provide for the care, custody, and control of the child and to exercise those powers in a manner that is appropriate to the child. Otherwise, the parent retains all rights and duties accruing to the parent as a result of the parent-child relationship that are not assigned to the guardian or otherwise limited by statute or juvenile court order.

Limited guardianships. Under the bill, the juvenile court may appoint a guardian to be a child's limited guardian when the child's parents need assistance in providing for the care, custody, and control of the child. Under a limited guardianship, the duties and authority of the guardian are limited as specified by the order appointing the guardian. The juvenile court may limit the authority of a guardian to allow the parent to retain such power to make decisions as is within the parent's ability to exercise effectively and may limit the physical custody of the guardian to allow shared physical custody with the parent if shared physical custody is in the best interests of the child. The juvenile court must set an expiration date for a limited guardianship order, which may be extended for good cause shown.

Temporary guardianships. Under the bill, the juvenile court may appoint a guardian to be a child's temporary guardian when the child's particular situation, including the inability of the child's parent to provide for the care, custody, and control of the child for a temporary period of time, requires the appointment of a temporary guardian. The order appointing a temporary guardian must specify the authority of the guardian, which must be limited to those acts that are reasonably related to the reasons for the appointment as specified in the petition for temporary guardianship. A temporary guardianship may not exceed 180 days, but may be extended for one additional 180-day period for good cause shown. A temporary guardianship ceases on expiration of that period or on termination of the situation of the child that was the cause of the temporary guardianship.

Emergency guardianships. Under the bill, the juvenile court may appoint a guardian to be a child's emergency guardian when the child's welfare requires the immediate appointment of an emergency guardian. The order appointing an emergency guardian must specify the authority of the guardian, which must be limited to those acts that are reasonably related to the reasons for the appointment as specified in the petition for emergency guardianship. An emergency guardianship may not exceed 60 days and ceases on expiration of that period or on termination of the situation of the child that was the cause of the emergency guardianship.

Procedures for appointment of full, limited, or temporary guardian

Petition. Any person, including a child 12 years of age or over on his or her own behalf, may petition for the appointment of a guardian of a child. The petitioner must cause the petition and notice of the time and place of the hearing on the petition to be served upon all interested persons, as defined in the bill, unless notice is waived by an interested person or by the juvenile court for good cause shown.

For purposes of a petition for guardianship of a child, "interested person" means: 1) the child, if 12 years of age or over, and the child's guardian ad litem and counsel, if any; 2) the child's parent, current guardian, legal custodian, and physical custodian; 3) if the child is a nonmarital child whose parents have not intermarried and if paternity of the child has not been established, any person who has filed a declaration of parental interest and any person who is alleged to be, or who may be, the father of the child; 4) the individual who is nominated as the guardian or as a successor guardian; 5) if the child has no living parent, any individual nominated to act as fiduciary for the child in a will or other written instrument executed by a parent of the child; 6) if the child is receiving or in need of any public services or benefits, the county department of human services or social services (county department) or, in Milwaukee County, the Department of Children and Families (DCF); 7) if the child is an Indian child, the child's Indian custodian and tribe; and 8) any other person that the juvenile court may require. In addition, for purposes of standing to present evidence and argument in a proceeding on a guardianship petition, the bill defines "party" as the petitioner and any interested person other than a person who is alleged to be, or who may be, the father of the child.

Guardian ad litem. The juvenile court must appoint a guardian ad litem (GAL) for a child who is the subject of a guardianship proceeding. In addition to his or her general duty to advocate for the best interests of the child, a GAL appointed for a child who is the subject of a guardianship proceeding must, unless granted leave by the juvenile court not to do so, do all of the following:

1. Personally, or through a trained designee, meet with or observe the child, assess the appropriateness and safety of the environment of the child, and, if appropriate to the age and developmental level of the child, interview the child and determine the child's goals and concerns regarding the proposed guardianship. If the child is 12 years of age or over, the GAL must also advise the child that he or she may request the appointment of counsel or retain counsel of his or her own choosing to oppose the guardianship petition.

2. Interview the proposed guardian, personally or through a trained designee, visit the guardian's home, if appropriate, and report to the juvenile court concerning the suitability of the proposed guardian to serve as guardian of the child.

3. Attend all juvenile court proceedings relating to the guardianship, present evidence concerning the best interests of the child, if necessary, and make clear and specific recommendations to the juvenile court concerning the best interests of the child at every stage of the guardianship proceeding.

4. Report to the juvenile court on any matter that the juvenile court requests.

5. Inspect reports and records relating to the child, the child's family, and the proposed guardian, including law enforcement, juvenile court, social welfare agency, child abuse and neglect, pupil, mental health, and health care records, to the extent necessary to fulfill the duties and responsibilities required of the GAL in the proceeding. The bill requires the juvenile court to include in the order appointing the GAL an order requiring the custodian of those reports or records to permit the GAL to inspect and copy those reports or records on presentation by the GAL of a copy of the order.

Statement by proposed guardian. At least 96 hours before the hearing on the petition, the proposed guardian must submit to the juvenile court a sworn and notarized statement as to the number of persons for whom the proposed guardian is responsible, whether as a parent, guardian, or legal custodian, as to the proposed guardian's income, assets, debts, and living expenses, and as to whether the proposed guardian is currently charged with or has been convicted of a crime or has been determined under the child abuse and neglect reporting law to have abused or neglected a child.

Hearing. The initial hearing on a guardianship petition must be heard within 45 days after the filing of the petition. If the petition is not contested, the juvenile court must immediately proceed to a fact-finding and dispositional hearing, unless an adjournment is requested. If the petition is contested or an adjournment is requested, the juvenile court must set a date for a fact-finding and dispositional hearing that allows reasonable time for the parties to prepare but is not more than 30 days after the initial hearing.

If the petition is contested, any party may request, or the juvenile court may propose on its own motion, that an investigation be conducted to determine whether the child is a proper subject for guardianship and whether the proposed guardian would be a suitable guardian for the child. If the juvenile court determines that such an investigation is necessary and that the welfare of the child demands such an investigation, the juvenile court may order the county department, a licensed child welfare agency, or, in Milwaukee County, DCF or an agency under contract with DCF to conduct an investigation. The person conducting the investigation must file a report of the investigation with the juvenile court at least 96 hours before the fact-finding and dispositional hearing, and the parents of the child and the proposed guardian must reimburse that person for the cost of the investigation according to a fee schedule established by DCF based on ability to pay.

The proposed guardian and any successor guardian, which is a person designated to become guardian on the death, unwillingness or inability to act, resignation, or removal of the guardian or to act as guardian during a period of temporary inability of the guardian to fulfill his or her duties, must be physically present at the hearing, unless excused by the juvenile court or the juvenile court permits attendance by telephone. The child is not required to attend the hearing, but if the child has nominated the guardian, the child must provide to his or her GAL sufficient information for the GAL to advise the juvenile court whether the nomination is in the best interests of the child.

Dispositional factors. In determining the appropriate disposition of a guardianship petition, the juvenile court must consider all of the following factors:

1. Any nomination of a guardian made by a parent or by the child, if 12 years of age or over, and the opinions of the parents and child as to what is in the best interests of the child.

2. Whether the proposed guardian would be fit, willing, and able to serve as the guardian of the child.

3. If the child is an Indian child, the order of placement preference required for an Indian child in an Indian child custody proceeding, unless the juvenile court finds good cause for departing from that order.

4. Whether appointment of the proposed guardian is in the best interests of the child.

Disposition. At the conclusion of the fact-finding and dispositional hearing, the juvenile court must do one of the following, unless the juvenile court adjourns the hearing: 1) dismiss the petition if the juvenile court finds that the petitioner has not proved the allegations in the petition by clear and convincing evidence or determines that appointment of the proposed guardian is not in the best interests of the child; or 2) order the proposed guardian to be appointed as the child's guardian if the juvenile court finds that the petitioner has proved those allegations by clear and convincing evidence and determines that the appointment is in the best interests of the child. If the juvenile court orders the appointment of a guardian for a child who has been adjudged to be delinquent or in need of protection or services and the order changes the placement of the child, the disposition must, if applicable, include certain findings, orders, statements, and determinations relating to, among other things, the welfare of the child and reasonable efforts to prevent the removal of the child from the home, that are required under current law when a juvenile court changes the placement of such a child. A disposition ordering the appointment of a guardian may also designate an amount of support to be paid by the child's parents and may include reasonable rules of parental visitation.

Adjournment; proposed guardian unfit or not in best interests. If at the conclusion of the fact-finding and dispositional hearing the juvenile court finds that the petitioner has proved the allegations in the petition by clear and convincing evidence, but that the proposed guardian is not fit, willing, and able to serve as the guardian of the child or that appointment of the proposed guardian as the child's guardian is not in the best interests of the child, the juvenile court may, in lieu of granting a disposition dismissing the petition, adjourn the hearing for not more than 30 days, request the petitioner or any other party to nominate a new proposed guardian, and order the GAL to report to the juvenile court concerning the suitability of the new proposed guardian to serve as the guardian of the child.

Procedures for appointment of emergency guardian

Petition. Any person may petition for the appointment of an emergency guardian for a child. The petitioner must give notice of the petition and of the time and place of the hearing on the petition to the child, if 12 years of age or over, the child's guardian ad litem, and the child's counsel, if any; the child's parents, guardian, and legal custodian; and the person nominated as emergency guardian. Notice of the petition and a copy of the petition must be served by the most practical means possible, including personal service or service by electronic mail or telephone, as soon after the filing of the petition as possible and must include notice of the right to counsel and of the right to petition for reconsideration or modification of the emergency guardianship.

GAL. The juvenile court must appoint a GAL for the child as soon as possible after the filing of the petition and must attempt to appoint the GAL before the hearing on the petition, but may appoint the GAL after the hearing if exigent circumstances require the immediate appointment of an emergency guardian. The GAL must attempt to meet with or observe the child before the hearing or as soon as is practicable after the hearing, but not later than three days after the hearing, and must report to the juvenile court on the advisability of the emergency guardianship at the hearing or, if not appointed until after the hearing, not later than seven days after the hearing.

Hearing. The juvenile court must hold a hearing on the emergency guardianship petition as soon as possible after the filing of the petition or, for good cause shown, may issue a temporary order appointing an emergency guardian without a hearing, which remains in effect until a hearing is held on the petition. If the juvenile court appoints an emergency guardian, any person entitled to receive notice of the emergency guardianship petition may petition for reconsideration or modification of the emergency guardianship and the juvenile court must hold a rehearing on the issue of appointment of the emergency guardian within 30 days after the filing of the petition.

Immunity. An emergency guardian of a child is immune from civil liability for his or her acts or omissions in performing the duties of emergency guardianship if he or she performs the duties in good faith, in the best interests of the child, and with the degree of diligence and prudence that an ordinarily prudent person exercises in his or her own affairs.

Post-appointment procedures

Successor guardian. As part of a petition for the original appointment of a guardian of a child or at any time after that appointment, a person may petition for the appointment of one or more successor guardians to assume the duty and authority of full, limited, or temporary guardianship in the event of the death, unwillingness or inability to act, resignation, or removal by the juvenile court of the initially appointed guardian or during a period when the initially appointed guardian is temporarily unable to fulfill his or her duties. If the petition for the appointment of a successor guardian is brought after the original appointment of a guardian, the petition must be heard in the same manner and subject to the same requirements as provided for an original appointment of a guardian.

The juvenile court may also appoint a successor guardian after a guardian has died, been removed, or resigned. The appointment may be made on the juvenile court's own motion or on the petition of any interested person, which, for purposes of proceedings subsequent to an order for guardianship of a child, means: 1) the child, if 12 years of age or over, the child's guardian ad litem, and the child's counsel; 2) the child's parent and guardian; 3) the county of venue, if the county has an interest in the guardianship; 4) if the child is an Indian child, the child's tribe; and 5) any other person that the juvenile court may require.

After a guardian has died, been removed, or resigned, a successor guardian may be appointed without a hearing, but the juvenile court may, upon request of any interested person or on its own motion, direct that the petition or motion for the appointment of a successor guardian be heard in the same manner and subject to the same requirements as provided for an original appointment of a guardian. If a successor is appointed without a hearing, the successor guardian must provide notice to all interested persons of the appointment, the right to counsel, and the right to petition for reconsideration of the appointment.

Modification of guardianship order. Any interested person or other person approved by the juvenile court may request a modification of a guardianship order or the juvenile court may, on its own motion, propose such a modification. The request or motion must set forth in detail the nature of the proposed modification, allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed modification would be in the best interests of the child, and allege any other information that affects the advisability of the juvenile court's disposition. The juvenile court must hold a hearing on the matter prior to any modification of the guardianship order if the request or motion indicates that new information is available that affects the advisability of the juvenile court's guardianship order, unless written waivers of objections to the modification are signed by all interested persons and the juvenile court approves the waivers. The juvenile court may order a modification if, at the hearing, the juvenile court finds that the person proposing the modification has proved by clear and convincing evidence that there has been a substantial change in circumstances and determines that a modification would be in the best interests of the child.

Review of conduct of guardian. The juvenile court that appointed the guardian of a child has continuing jurisdiction over the guardian and may impose certain remedies if the guardian abuses or neglects the child or knowingly permits others to do so, fails to disclose information that would have prevented his or her appointment as guardian, or otherwise fails to perform any of his or her duties as guardian. If the juvenile court finds by clear and convincing evidence that any of those circumstances apply, the juvenile court may remove the guardian, remove the guardian and appoint a successor guardian, enter any other order that may be necessary or appropriate to compel the guardian to carry out his or her duties, modify the duties and authority of the guardian, or, if the guardian's conduct was egregious, require the guardian to pay any costs of the proceeding.

Termination of guardianship. A guardianship continues until the child attains the age of 18 years unless: 1) the guardianship is for a lesser period of time and that time has expired; 2) the child marries; 3) the child dies; 4) the child's residence changes from this state to another state and a guardian is appointed in the new state of residence; 5) the guardian dies, or resigns and the resignation is approved by the juvenile court, and a successor guardian is not appointed; 6) the guardian is removed for cause and a successor guardian is not appointed; or 7) the guardianship is terminated on the request of a parent.

A parent may request that a guardianship be terminated by filing a petition with the juvenile court alleging facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is fit, willing, and able to carry out the duties of a guardian, and that termination of the guardianship would be in the best interests of the child. The juvenile court must hold a hearing on the petition, unless written waivers of objections to termination of the guardianship are signed by all interested persons and the juvenile court approves the waivers. The juvenile court must terminate the guardianship if the juvenile court finds that the parent has proved by clear and convincing evidence that he or she has remedied the unfitness, unwillingness, or inability to provide for the care, custody, and control of the child or the compelling facts and circumstances on which the guardianship was granted and that he or she is now fit, willing, and able to carry out the duties of a guardian and the juvenile court determines that termination of the guardianship would be in the best interests of the child.

Protection or services guardianships

Under the current Children's Code, a protection or services guardianship may be ordered when a child who has been adjudged to be in need of protection or services under the Children's Code on any grounds other than the grounds of relinquishment of custody or of not having been immunized as required by law, or adjudged to be in need of protection or services under the Juvenile Justice Code on the grounds of uncontrollability, and placed outside the home is likely to be placed in the home of the guardian for an extended period or until the child attains the age of 18 years, it is not in the best interests of the child that a petition for termination of parental rights be filed, and the child's parent is neglecting, refusing, or unable to carry out the duties of a guardian.

This bill expands the applicability of a protection or services guardianship to include a child who has been adjudged to be in need of protection or services under the Children's Code on the grounds of relinquishment of custody or of not having been immunized as required by law, a child who has been adjudged to be in need of protection or services under the Juvenile Justice Code on the grounds of truancy from home or school, being a school dropout, or having committed a delinquent act while under ten years of age, and a child ten years of age or over who has been adjudged delinquent. The bill also permits such a guardianship to be ordered not only when the child's parent is neglecting, refusing, or unable to carry out the duties of a guardian but also when the child's parent is not meeting the conditions established in a juvenile court order for the safe return of the child to the home.

Under current law, service of a petition for a protection or services guardianship and notice of hearing on the petition may be made by 1st class mail, by personal service or, if with reasonable diligence a party cannot be served by mail or by personal service, by publication of the notice in a newspaper that is likely to give notice to the parties. This bill eliminates service by publication for a protection or services guardianship petition.