SB451: Bill Text

LRB-3776/1

GMM:cjs:jm

2013 - 2014 LEGISLATURE

2013 Senate BILL 451

December 20, 2013 - Introduced by Senators Moulton, Darling and L. Taylor, cosponsored by Representatives Loudenbeck, LeMahieu, Kolste, Krug, Petryk and C. Taylor. Referred to Committee on Education.

SB451,2,15 An Act to repeal 48.44 (2), 48.78 (2) (d) 3., 301.26 (4) (cm) 2., 302.11 (10), 302.17 (3), 302.255, 304.15, 938.992 (3) and 946.42 (3) (d); to renumber and amend 48.355 (4), 48.357 (6), 48.365 (5), 48.38 (4) (ar), 48.44 (1), 48.619, 938.357 (6), 938.365 (5) and 938.38 (4) (ar); to amend 20.410 (3) (cg), 48.235 (1) (e), 48.33 (4) (intro.), 48.335 (3g) (intro.), 48.357 (1) (am) 2. (intro.), 48.357 (2), 48.357 (2m) (a), 48.357 (2m) (b), 48.357 (2v) (a) 3., 48.38 (2) (intro.), 48.38 (2) (g), 48.385, 48.48 (17) (c) 4., 48.481 (2), 48.57 (3) (a) 4., 48.57 (3m) (a) 1., 48.57 (3n) (a) 1., 48.57 (3n) (am) 6. a., 48.64 (4) (a), 48.64 (4) (c), 48.645 (1) (intro.), 48.645 (1) (a), 48.645 (2) (a) 3., 48.645 (2) (b), 48.685 (1) (am), 146.82 (2) (a) 18m., 227.03 (4), 252.15 (3m) (d) 15., 301.03 (9), 301.12 (2), 301.26 (4) (a), 301.26 (4) (b), 301.26 (4) (c), 301.26 (4) (d) 1m., 302.11 (1), 302.17 (2), 302.31 (7), 767.405 (8) (b) 1., 767.405 (10) (e) 1., 767.41 (2) (b) 2. c., 767.41 (5) (am) 12., 905.045 (1) (a), 938.235 (1) (e), 938.33 (4) (intro.), 938.335 (3g) (intro.), 938.355 (4) (a), 938.355 (6) (a) 1., 938.355 (6) (a) 2., 938.355 (6d) (a) 1., 938.355 (6d) (a) 2., 938.355 (6d) (b) 1., 938.355 (6d) (b) 2., 938.355 (6d) (c) 1., 938.355 (6d) (c) 2., 938.355 (6m) (a) (intro.), 938.357 (1) (am) 2. (intro.), 938.357 (2), 938.357 (2m) (a), 938.357 (2m) (b), 938.357 (2v) (a) 3., 938.357 (4g) (b), 938.38 (2) (intro.), 938.44, 938.53, 938.57 (3) (a) 4., 938.595, 938.78 (2) (d) 3., 946.42 (1) (a) 1. f., 946.44 (2) (d), 946.45 (2) (d) and 976.08; to repeal and recreate 48.366; and to create 48.355 (4) (b) 4., 48.357 (1) (am) 2r., 48.357 (2m) (bv), 48.357 (6) (a) 4., 48.365 (5) (b) 4., 48.38 (4) (ar) 2., 48.38 (4) (fg) 6., 48.38 (5) (c) 9., 48.619 (2), 48.64 (4) (d), 938.355 (4) (am) 4., 938.355 (6) (a) 3., 938.355 (6d) (a) 2g., 938.355 (6d) (a) 2r., 938.355 (6d) (b) 2g., 938.355 (6d) (b) 2r., 938.355 (6d) (c) 2g., 938.355 (6d) (c) 2r., 938.357 (1) (am) 2r., 938.357 (2m) (bv), 938.357 (6) (a) 4., 938.365 (5) (b) 4., 938.366, 938.38 (4) (ar) 2., 938.38 (4) (fg) 6., 938.38 (5) (c) 9. and 938.385 of the statutes; relating to: extended out-of-home care to 21 years of age for children with individualized education programs, providing an exemption from emergency rule procedures, providing an exemption from rule-making procedures, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, an order of the court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court) that places or continues the placement of a child in out-of-home care terminates when the child reaches 18 years of age, one year after entry of the order, or, if the child is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching 19 years of age, when the child reaches 19 years of age, whichever is later, unless the juvenile court specified a shorter period of time or terminates the order sooner.

This bill permits a child placed in out-of-home care who is a full-time student at a secondary school or its vocational or technical equivalent and for whom an individualized education program (IEP) is in effect (child with an IEP) to continue in out-of-home care until the child is granted a high school or high school equivalency diploma or reaches 21 years of age, whichever occurs first, under either an extended dispositional order of the juvenile court or a voluntary transition-to-independent-living agreement between the child, or the child's guardian on behalf of the child, and the agency primarily responsible for providing services to the child under the dispositional order (agency). (An IEP is a written statement for a child with a disability developed by an IEP team appointed by the child's local educational agency that includes, among other things, the child's level of academic achievement and functional performance, measurable goals for the child, the special education and related services to be provided to the child, and how the child's progress toward attaining those goals will be measured.)

Specifically, the bill requires an agency, not less than 120 days before the termination date of a dispositional order of a child with an IEP who has attained 18 years of age or the termination date of a termination of parental rights order transferring a child with an IEP to the guardianship of an agency (TPR agency guardianship order), to request the child to indicate whether he or she wishes to be discharged from out-of-home care on termination of the dispositional or TPR agency guardianship order, wishes to continue in out-of-home care under an extension of the dispositional order, or wishes to continue in out-of-home care under a voluntary transition-to-independent-living agreement.

If the child with an IEP indicates that he or she wishes to be discharged from out-of-home care on termination of the dispositional or TPR agency guardianship order, the agency must request the juvenile court to hold a transition-to-discharge hearing, and the juvenile court must hold the hearing within 30 days after receipt of the request. At the hearing the juvenile court must review with the child the options of being discharged from out-of-home care on termination of the dispositional or TPR agency guardianship order, continuing in out-of-home care under an extension of the dispositional order, or continuing in out-of-home care under a voluntary agreement.

If the juvenile court determines that the child with an IEP understands that he or she may continue in out-of-home care, but wishes to be discharged from that care on termination of the dispositional or TPR agency guardianship order, the juvenile court must advise the child that he or she may enter into a voluntary transition-to-independent-living agreement at any time before he or she is granted a high school or high school equivalency diploma or reaches 21 years of age, whichever occurs first, so long as he or she is a full-time student at a secondary school or its vocational or technical equivalent and the IEP remains in effect. If the juvenile court determines that the child with an IEP wishes to continue in out-of-home care under a dispositional order, the juvenile court must schedule a hearing for the extension of the dispositional order. If the juvenile court determines that the child with an IEP wishes to continue in out-of-home care under a voluntary transition-to-independent-living agreement, the juvenile court must order the agency to provide transition-to-independent-living services for the child under such an agreement.

The bill permits a child with an IEP, or the child's guardian on behalf of the child, on termination of a dispositional or TPR agency guardianship order, to enter into a transition-to-independent-living agreement with the agency under which the child continues in out-of-home care and continues to be a full-time student at a secondary school or its vocational or technical equivalent under the IEP until the child reaches 21 years of age, is granted a high school or high school equivalency diploma, or terminates the agreement, whichever occurs first, and the agency provides services to the child to assist him or her in transitioning to independent living. The bill also permits a child or his or her guardian to terminate the agreement at any time by notifying the agency in writing that the child wishes to terminate the agreement. In addition, the bill permits a child who terminates a voluntary transition-to-independent-living agreement to enter into a new agreement at any time before he or she is granted a high school or high school equivalency diploma or reaches 21 years of age, whichever occurs first, so long as he or she is a full-time student at a secondary school or its vocational or technical equivalent and the IEP remains in effect.

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:

SB451,1 Section 1. 20.410 (3) (cg) of the statutes is amended to read:

SB451,4,8 20.410 (3) (cg) Serious juvenile offenders. Biennially, the amounts in the schedule for juvenile correctional institution, corrective sanctions, alternate care, aftercare, and other juvenile program services specified in s. 938.538 (3) provided for the persons specified in s. 301.26 (4) (cm), and for juvenile correctional institution services for persons placed in juvenile correctional institutions under s. 973.013 (3m) and for juvenile correctional services for persons under 18 years of age placed with the department under s. 48.366 (8).

SB451,2 Section 2. 48.235 (1) (e) of the statutes is amended to read:

SB451,5,2 48.235 (1) (e) The court shall appoint a guardian ad litem, or extend the appointment of a guardian ad litem previously appointed under par. (a), for any child alleged or found to be in need of protection or services, if the court has ordered, or if a request or recommendation has been made that the court order, the child to be placed out of his or her home under s. 48.345 or 48.357. This paragraph does not apply to a child who is subject to a dispositional order that terminates as provided in s. 48.355 (4) (b) 4., 48.357 (6) (a) 4., or 48.365 (5) (b) 4.

SB451,3 Section 3. 48.33 (4) (intro.) of the statutes is amended to read:

SB451,5,10 48.33 (4) Other out-of-home placements. (intro.) A report recommending placement of an adult expectant mother outside of her home shall be in writing. A report recommending placement of a child in a foster home, group home, or residential care center for children and youth, in the home of a relative other than a parent, or in the home of a guardian under s. 48.977 (2), or in a supervised independent living arrangement shall be in writing and shall include all of the following:

SB451,4 Section 4. 48.335 (3g) (intro.) of the statutes is amended to read:

SB451,5,17 48.335 (3g) (intro.) At hearings under this section, if the agency, as defined in s. 48.38 (1) (a), is recommending placement of the child in a foster home, group home, or residential care center for children and youth or, in the home of a relative other than a parent, in the home of a guardian under s. 48.977 (2), or in a supervised independent living arrangement, the agency shall present as evidence specific information showing all of the following:

SB451,5 Section 5. 48.355 (4) of the statutes is renumbered 48.355 (4) (a) and amended to read:

SB451,5,24 48.355 (4) (a) Except as provided under s. 48.368, an order under this section or s. 48.357 or 48.365 made before the child reaches 18 years of age that places or continues the placement of the child in his or her home shall terminate at the end of one year after its entry the date on which the order is entered unless the judge specifies a shorter period of time or the judge terminates the order sooner.

SB451,6,7 (b) Except as provided under s. 48.368, an order under this section or s. 48.357 or 48.365 made before the child reaches 18 years of age that places or continues the placement of the child in a foster home, group home, or residential care center for children and youth or, in the home of a relative other than a parent, or in a supervised independent living arrangement shall terminate when on the latest of the following dates, unless the judge specifies a shorter period or the judge terminates the order sooner:

SB451,6,8 1. The date on which the child reaches 18 years of age, at the end of.

SB451,6,10 2. The date that is one year after its entry, or, if the date on which the order is entered.

SB451,6,17 3. The date on which the child is granted a high school or high school equivalency diploma or the date on which the child reaches 19 years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching 19 years of age, when the child reaches 19 years of age, whichever is later, unless the judge specifies a shorter period of time or the judge terminates the order sooner.

SB451,6,22 (c) An order under this section or s. 48.357 or 48.365 relating to an unborn child in need of protection or services that is made before the unborn child is born shall terminate at the end of one year after its entry the date on which the order is entered unless the judge specifies a shorter period of time or the judge terminates the order sooner.

SB451,6 Section 6. 48.355 (4) (b) 4. of the statutes is created to read:

SB451,7,9 48.355 (4) (b) 4. The date on which the child is granted a high school or high school equivalency diploma or the date on which the child reaches 21 years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and if an individualized education program under s. 115.787 is in effect for the child. The court may not enter an order that terminates as provided in this subdivision unless the child is 17 years of age or older when the order is entered and the child, or the child's guardian on behalf of the child, agrees to the order. At any time after the child reaches 18 years of age, the child, or the child's guardian on behalf of the child, may request the court in writing to terminate the order and, on receipt of such a request, the court, without a hearing, shall terminate the order.

SB451,7 Section 7. 48.357 (1) (am) 2. (intro.) of the statutes is amended to read:

SB451,7,17 48.357 (1) (am) 2. (intro.) Any Except as provided in subd. 2r., any person receiving the notice under subd. 1. or notice of a specific placement under s. 48.355 (2) (b) 2., other than a court-appointed special advocate, may obtain a hearing on the matter by filing an objection with the court within 10 days after receipt of the notice. Except as provided in subd. subds. 2m. and 2r., placements may not be changed until 10 days after that notice is sent to the court unless written waivers of objection are signed as follows:

SB451,8 Section 8. 48.357 (1) (am) 2r. of the statutes is created to read:

SB451,8,5 48.357 (1) (am) 2r. If the proposed change in placement involves a child who is subject to a dispositional order that terminates as provided in sub. (6) (a) 4. or s. 48.355 (4) (b) 4. or 48.365 (5) (b) 4., the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel may request a change in placement under this paragraph only if the child or the child's guardian on behalf of the child consents to the change in placement. That person or agency, the district attorney, or the corporation counsel shall cause written notice of the proposed change in placement to be sent to the child, the guardian of the child, and any foster parent or other physical custodian described in s. 48.62 (2) of the child. No hearing is required for a change in placement described in this subdivision, and the child's placement may be changed at any time after notice of the proposed change in placement is sent to the court.

SB451,9 Section 9. 48.357 (2) of the statutes is amended to read:

SB451,8,17 48.357 (2) If emergency conditions necessitate an immediate change in the placement of a child or expectant mother placed outside the home, the person or agency primarily responsible for implementing the dispositional order may remove the child or expectant mother to a new placement, whether or not authorized by the existing dispositional order, without the prior notice provided in sub. (1) (am) 1. or the consent required under sub. (1) (am) 2r. The notice shall, however, be sent within 48 hours after the emergency change in placement. Any party receiving notice may demand a hearing under sub. (1) (am) 2. In emergency situations, a child may be placed in a licensed public or private shelter care facility as a transitional placement for not more than 20 days, as well as in any placement authorized under s. 48.345 (3).

SB451,10 Section 10. 48.357 (2m) (a) of the statutes is amended to read:

SB451,9,10 48.357 (2m) (a) The Except as provided in par. (bv), the child, the parent, guardian, legal custodian, or Indian custodian of the child, the expectant mother, the unborn child by the unborn child's guardian ad litem, or any person or agency primarily bound by the dispositional order, other than the person or agency responsible for implementing the order, may request a change in placement under this paragraph. The request shall contain the name and address of the new placement requested and shall state what new information is available that affects the advisability of the current placement. If the proposed change in placement would change the placement of a child placed in the child's home to a placement outside the child's home, the request shall also contain specific information showing that continued placement of the child in the home would be contrary to the welfare of the child and, unless any of the circumstances under s. 48.355 (2d) (b) 1. to 5. applies, specific information showing that the agency primarily responsible for implementing the dispositional 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. The request shall be submitted to the court. The court may also propose a change in placement on its own motion.

SB451,11 Section 11. 48.357 (2m) (b) of the statutes is amended to read:

SB451,9,25 48.357 (2m) (b) The court shall hold a hearing prior to ordering any change in placement requested or proposed under par. (a) if the request states that new information is available that affects the advisability of the current placement. A Except as provided in par. (bv), a hearing is not required if the requested or proposed change in placement does not involve a change in placement of a child placed in the child's home to a placement outside the child's home, written waivers of objection to the proposed change in placement are signed by all persons entitled to receive notice under this paragraph, other than a court-appointed special advocate, and the court approves. If a hearing is scheduled, not less than 3 days before the hearing the court shall notify the child, the parent, guardian, and legal custodian of the child, any foster parent or other physical custodian described in s. 48.62 (2) of the child, the child's court-appointed special advocate, all parties who are bound by the dispositional order, and, if the child is an Indian child, the Indian child's Indian custodian and tribe. If the child is the expectant mother of an unborn child under s. 48.133, the court shall also notify the unborn child by the unborn child's guardian ad litem. If the change in placement involves an adult expectant mother of an unborn child under s. 48.133, the court shall notify the adult expectant mother, the unborn child by the unborn child's guardian ad litem, and all parties who are bound by the dispositional order, at least 3 days prior to the hearing. A copy of the request or proposal for the change in placement shall be attached to the notice. Subject to par. (br), if all of the parties consent, the court may proceed immediately with the hearing.

SB451,12 Section 12. 48.357 (2m) (bv) of the statutes is created to read:

SB451,10,19 48.357 (2m) (bv) If the proposed change in placement involves a child who is subject to a dispositional order that terminates as provided in sub. (6) (a) 4. or s. 48.355 (4) (b) 4. or 48.365 (5) (b) 4., only the child or the child's guardian on behalf of the child or a person or agency primarily bound by the dispositional order may request a change in placement under par. (a). No hearing is required for a change in placement described in this paragraph if written waivers of objection to the proposed change in placement are signed by the child, the guardian of the child, and all parties that are bound by the dispositional order. If a hearing is scheduled, the court may proceed immediately with the hearing on the consent of the person who requested the change in placement, the child, the guardian of the child, and all parties who are bound by the dispositional order.

SB451,13 Section 13. 48.357 (2v) (a) 3. of the statutes is amended to read:

SB451,11,2 48.357 (2v) (a) 3. If the court finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, a determination that the agency primarily responsible for providing services under the change in placement order is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home. This subdivision does not apply to a child who is subject to a dispositional order that terminates as provided in s. 48.355 (4) (b) 4., 48.357 (6) (a) 4., or 48.365 (5) (b) 4.

SB451,14 Section 14. 48.357 (6) of the statutes is renumbered 48.357 (6) (a) (intro.) and amended to read:

SB451,11,9 48.357 (6) (a) (intro.) No change in placement may extend the expiration date of the original order, except that if the change in placement is from a placement in the child's home to a placement outside the home the court may extend the expiration date of the original order to the latest of the following dates, unless the court specifies a shorter period:

SB451,11,10 1. The date on which the child reaches 18 years of age, to the.

SB451,11,12 2. The date that is one year after the date of on which the change in placement order, or, if is entered.

SB451,11,19 3. The date on which the child is granted a high school or high school equivalency diploma or the date on which the child reaches 19 years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching 19 years of age, to the date on which the child reaches 19 years of age, whichever is later, or for a shorter period of time as specified by the court.

SB451,11,25 (b) If the change in placement is from a placement outside the home to a placement in the child's home and if the expiration date of the original order is more than one year after the date of on which the change in placement order is entered, the court shall shorten the expiration date of the original order to the date that is one year after the date of on which the change in placement order is entered or to an earlier date as specified by the court.

SB451,15 Section 15. 48.357 (6) (a) 4. of the statutes is created to read:

SB451,12,12 48.357 (6) (a) 4. The date on which the child is granted a high school or high school equivalency diploma or the date on which the child reaches 21 years of age, whichever occurs first, if the child is a full-time student at a secondary school or its vocational or technical equivalent and if an individualized education program under s. 115.787 is in effect for the child. The court may not enter an order that terminates as provided in this subdivision unless the child is 17 years of age or older when the order is entered and the child, or the child's guardian on behalf of the child, agrees to the order. At any time after the child reaches 18 years of age, the child, or the child's guardian on behalf of the child, may request the court in writing to terminate the order and, on receipt of such a request, the court, without a hearing, shall terminate the order.

SB451,16 Section 16. 48.365 (5) of the statutes is renumbered 48.365 (5) (a) and amended to read:

SB451,12,18 48.365 (5) (a) Except as provided in s. 48.368, an order under this section that continues the placement of a child in his or her home or that relates to an unborn child of an adult expectant mother shall be for a specified length of time not to exceed one year after its the date of entry on which the order is entered.

SB451,12,21 (b) Except as provided in s. 48.368, an order under this section that continues the placement of a child in an out-of-home placement shall be for a specified length of time not to exceed the latest of the following dates:

SB451,12,22 1. The date on which the child reaches 18 years of age,.