AB406: Bill Text

LRB-1609/1

GMM:jld&klm

2015 - 2016 LEGISLATURE

2015 Assembly BILL 406

October 13, 2015 - Introduced by Representatives Loudenbeck, Kleefisch, Kulp, Skowronski, Sinicki, A. Ott, Kitchens and Murphy, cosponsored by Senators Petrowski, Olsen and Moulton. Referred to Committee on Children and Families.

AB406,2,9 An Act to repeal 48.427 (4), 48.428, 48.627 (1), 115.76 (12) (a) 8. and 895.485 (1) (a); to renumber and amend 48.385 and 938.385; to amend 20.437 (1) (cf) (title), 48.14 (2) (b), 48.366 (2) (b) 4., 48.38 (4) (f) 3., 48.38 (4) (fg) 5., 48.38 (4) (fm), 48.38 (4) (h) (intro.), 48.38 (4) (h) 2., 48.38 (4) (h) 4., 48.38 (4) (h) 5., 48.38 (5) (c) 1., 48.38 (5) (c) 6. d., 48.38 (5) (c) 9., 48.427 (1), 48.427 (5), 48.43 (4), 48.481 (2), 48.627 (title), 48.627 (2) (a), 48.627 (2c), 48.627 (2m), 48.627 (2s) (a), 48.627 (2s) (b), 48.627 (3) (b), 48.627 (3) (d), 48.627 (3) (e), 48.627 (3) (f), 48.627 (3) (h), 48.627 (4), 48.647 (3) (d), 48.647 (4), 48.977 (7) (e), 49.34 (4) (a), 49.34 (4) (c), 167.10 (7), 809.107 (2) (bm) (intro.), 895.485 (title), 895.485 (2), 895.485 (3), 895.485 (4) (intro.), 895.485 (4) (a), 938.366 (2) (b) 4., 938.38 (4) (f) 3., 938.38 (4) (fg) 5., 938.38 (4) (fm), 938.38 (4) (h) (intro.), 938.38 (4) (h) 2., 938.38 (4) (h) 4., 938.38 (4) (h) 5., 938.38 (5) (c) 1., 938.38 (5) (c) 6. d. and 938.38 (5) (c) 9.; and to create 48.02 (1dm), 48.02 (12r), 48.02 (14r), 48.38 (2m), 48.38 (4) (h) 6., 48.38 (4) (h) 7., 48.38 (5) (bm) 3., 48.38 (5) (c) 7m., 48.38 (5m) (c) 3., 48.383, 48.385 (2), 48.43 (5) (b) 2m., 48.627 (2s) (am), 48.67 (4) (a) 1m., 48.67 (5), 895.485 (1) (title), 895.485 (1) (ag), 895.485 (1) (c), 895.485 (1) (d), 895.485 (5) and (6), 938.02 (1g), 938.02 (12r), 938.02 (14r), 938.38 (2m), 938.38 (4) (h) 6., 938.38 (4) (h) 7., 938.38 (5) (bm) 3., 938.38 (5) (c) 7m., 938.38 (5m) (c) 3., 938.383 and 938.385 (2) of the statutes; relating to: use of the reasonable and prudent parent standard for making decisions concerning the participation of a child placed in out-of-home care in age or developmentally appropriate activities, permanency planning for a child 14 years of age or over, providing an exemption from emergency rule procedures, and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Introduction

Recently, Congress enacted the Preventing Sex Trafficking and Strengthening Families Act, which makes certain changes to Title IV-E of the Social Security Act regarding: 1) use of the reasonable and prudent parent standard for making decisions concerning the participation of a child placed in out-of-home care in age or developmentally appropriate activities; and 2) permanency planning for children 14 years of age or over placed in out-of-home care. A permanency plan is a plan designed to ensure that a child who is placed outside the home is reunified with his or her family whenever appropriate or that the child quickly attains a placement or home providing long-term stability. This bill incorporates those changes into the Children's Code and the Juvenile Justice Code.

Reasonable and prudent parent standard

The bill incorporates the reasonable and prudent parent standard into the Children's Code and the Juvenile Justice Code by doing all of the following:

1. Requiring a foster parent, guardian, relative other than a parent, or nonrelative in whose home a child is placed; the operator of a group home, residential care center for children and youth, or shelter care facility in which a child is placed; and, in the case of a child placed in a group home, residential care center for children and youth, or shelter care facility, a staff member employed on the site of that home, center, or facility who has been designated by the operator of that home, center, or facility as an out-of-home care provider for purposes of making decisions concerning the child's participation in age or developmentally appropriate activities (out-of-home care provider) to use the reasonable and prudent parent standard in making decisions concerning a child's participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities. The bill defines "reasonable and prudent parent standard" as a standard for an out-of-home care provider to use in making decisions concerning a child's participation in those activities that is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the child while at the same time encouraging the emotional and developmental growth of the child.

2. Requiring the agency that places, or that arranges the placement of, a child with an out-of-home care provider or the agency assigned primary responsibility for providing services to the child, at the time of placement, to: a) provide to the out-of-home care provider information that is specific to the child for the out-of-home care provider to consider in making reasonable and prudent parenting decisions concerning the child's participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities; and b) explain to the out-of-home care provider the parameters of those considerations. The bill requires that information to be prepared in consultation with the child and, if reasonably possible to do so, the child's parent and requires that consultation to also occur and those parameters to also be explained at the time the permanency plan is prepared and each time the permanency plan is revised.

3. Requiring the Department of Children and Families (DCF) to promulgate rules: a) requiring all foster parents to receive training in the use of the reasonable and prudent parent standard in making decisions concerning a child's participation in age or developmentally appropriate activities; b) requiring all residential care centers for children and youth, group homes, and shelter care facilities to employ on the site of that center, home, or facility at all times a staff member designated as an out-of-home care provider for purposes of making those decisions (designated out-of-home care provider) and requiring those designated out-of-home care providers to receive that training; and c) requiring foster parents and designated out-of-home care providers who have received that training to make those decisions in accordance with the reasonable and prudent parent standard.

4. Providing that an out-of-home care provider who grants permission for a child to participate in an age or developmentally appropriate activity is immune from civil liability for any act or omission in granting that permission if in granting that permission the out-of-home care provider applied the reasonable and prudent parent standard in accordance with the requirements of the bill and any rules promulgated by DCF under the bill.

5. Requiring the permanency plan for a child whose permanency goal is not to be returned to his or her home or to be placed for adoption, with a guardian, or with a fit and willing relative, but rather to be placed in some other planned permanent living arrangement, to include a plan to ensure that the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities determined in accordance with the reasonable and prudent parent standard.

6. Requiring the court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court) or a permanency plan review panel (panel), in reviewing the permanency plan of a child placed in a planned permanent living arrangement, to determine the steps taken by the agency to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities and to ensure that the child's caregiver is applying the reasonable and prudent parent standard to decisions concerning the child's participation in those activities.

Permanency planning

This bill incorporates the changes that the federal Preventing Sex Trafficking and Strengthening Families Act made with respect to permanency planning into the Children's Code and the Juvenile Justice Code by doing all of the following:

1. Permitting the permanency goal of placement of a child in a planned permanent living arrangement, other than the child's own home or the home of an adoptive parent, guardian, or fit and willing relative, only in the case of a child 16 years of age or over. Current law does not specify an age limit for that permanency goal.

2. Requiring the agency that prepared the permanency plan for a child placed in a planned permanent living arrangement to present to the juvenile court or panel, on review of the permanency plan, information showing that intensive and ongoing efforts were made by the agency, including searching social media, to return the child to the child's home or to place the child for adoption, with a guardian, or with a fit and willing relative and that those efforts have proved unsuccessful.

3. Requiring the juvenile court or panel, in determining the continuing necessity for and the safety and appropriateness of a placement in a planned permanent living arrangement, to include in that determination an explanation of why the planned permanent living arrangement is the best permanency goal for the child and why it continues not to be in the best interests of the child to be returned to his or her home or to be placed for adoption, with a guardian, or with a fit and willing relative.

4. Requiring the agency primarily responsible for providing services for a child who has been placed in out-of-home care for six months or more to ensure that the child is in possession of a certified copy of the child's birth certificate, a social security card, information on maintaining health care coverage, a copy of the child's health care records, and either a driver's license or a state-issued identification card (identification documents and other important information) during the 90 days before the child attains 18 years of age or the child's juvenile court order terminates, whichever is later.

5. Requiring the agency responsible for preparing the permanency plan for a child 14 years of age or over to prepare the plan in consultation with the child, requiring the permanency plan for such a child to include a plan to prepare the child for the transition from out-of-home care to a successful adulthood (transition plan), and requiring a child's transition plan to include a document that describes the rights of the child with respect to education, health, visitation, and participation in juvenile court proceedings, the right of the child to receive identification documents and other important information as required under the bill, the right of the child to receive a copy of his or her credit report, and the right of the child to stay safe and to avoid exploitation. Current law requires a transition plan only for a child 15 years of age or over.

6. Eliminating placement in sustaining care as a permanency goal for a child following a termination of parental rights. The bill, however, permits: a) a child 16 years of age or over who is in sustaining care under a sustaining care contract entered into before the effective date of the bill to remain in sustaining care until the termination date of the contract; and b) a child under 16 years of age who is in sustaining care under a sustaining care contract entered into before the effective date of the bill to remain in sustaining care until the next permanency plan review or hearing for the child, at which time the child's permanency plan must be amended to provide for a permanency goal other than placement in sustaining care.

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:

AB406,1 Section 1. 20.437 (1) (cf) (title) of the statutes is amended to read:

AB406,5,3 20.437 (1) (cf) (title) Foster and family-operated group home parent insurance and liability.

AB406,2 Section 2. 48.02 (1dm) of the statutes is created to read:

AB406,5,11 48.02 (1dm) "Age or developmentally appropriate activities" means activities that are generally accepted as suitable for children of a given chronological age or level of maturity or that are determined to be developmentally appropriate for a child based on the cognitive, emotional, physical, and behavioral capacities that are typical for children of a given age or age group or, in the case of a specific child, activities that are suitable for the child based on the cognitive, emotional, physical, and behavioral capacities of that child.

AB406,3 Section 3. 48.02 (12r) of the statutes is created to read:

AB406,6,7 48.02 (12r) "Out-of-home care provider" means a foster parent, guardian, relative other than a parent, or nonrelative in whose home a child is placed, or the operator of a group home, residential care center for children and youth, or shelter care facility in which a child is placed, under the placement and care responsibility of the department or a county department. "Out-of-home care provider" also includes, in the case of a child placed in a group home, residential care center for children and youth, or shelter care facility, a staff member employed on the site of that home, center, or facility who has been designated by the operator of that home, center, or facility as an out-of-home care provider for purposes of making decisions concerning the child's participation in age or developmentally appropriate activities.

AB406,4 Section 4. 48.02 (14r) of the statutes is created to read:

AB406,6,15 48.02 (14r) "Reasonable and prudent parent standard" means a standard for an out-of-home care provider to use in making decisions concerning a child's participation in age or developmentally appropriate extracurricular, enrichment, cultural, and social activities that is characterized by careful and sensible parental decisions that maintain the health, safety, best interests, and cultural, religious, and tribal values of the child while at the same time encouraging the emotional and developmental growth of the child.

AB406,5 Section 5. 48.14 (2) (b) of the statutes is amended to read:

AB406,6,20 48.14 (2) (b) The appointment and removal of a guardian of the person for a child under ss. 48.427, 48.428, 48.43, 48.831, 48.832, 48.839 (4) (a), 48.977, and 48.978 and ch. 54 and for a child found to be in need of protection or services under s. 48.13 because the child is without parent or guardian.

AB406,6 Section 6. 48.366 (2) (b) 4. of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

AB406,7,13 48.366 (2) (b) 4. If the court determines that the person who is the subject of an order described in sub. (1) (a) or (b) understands that he or she may continue in out-of-home care, but wishes to be discharged from that care on termination of the order, the court shall advise the person that he or she may enter into a voluntary agreement under sub. (3) 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 an individualized education program under s. 115.787 is in effect for him or her. If the court determines that the person wishes to continue in out-of-home care under an extension of an order under s. 48.355, 48.357, or 48.365 described in sub. (1) (a), the court shall schedule an extension hearing under s. 48.365. If the court determines that the person wishes to continue in out-of-home care under a voluntary agreement under sub. (3), the court shall order the agency primarily responsible for providing services to the person under the order to provide transition-to-independent-living services for the person under a that voluntary agreement under sub. (3).

AB406,7 Section 7. 48.38 (2m) of the statutes is created to read:

AB406,8,2 48.38 (2m) Consultation with child 14 or over. The agency responsible for preparing the permanency plan for a child 14 years of age or over shall prepare the plan and any revisions of the plan in consultation with the child and, at the option of the child, with not more than 2 persons selected by the child who are members of any child and family team convened for the child, except that the child may not select his or her caregiver or caseworker to consult in the preparation or revision of the permanency plan and the agency may reject a person selected by the child if the agency has good cause to believe that the person would not act in the best interests of the child. The agency may designate one of the persons selected by the child to be the child's adviser and, as necessary, the child's advocate, with respect to application of the reasonable and prudent parent standard to decisions concerning the child's participation in age or developmentally appropriate activities.

AB406,8 Section 8. 48.38 (4) (f) 3. of the statutes is amended to read:

AB406,8,9 48.38 (4) (f) 3. Improve the conditions of the parents' home to facilitate the safe return of the child to his or her home, or, if appropriate, obtain for the child a placement for adoption, with a guardian, or with a fit and willing relative, or, in the case of a child 16 years of age or over, obtain for the child, if appropriate, a placement in some other planned permanent living arrangement that includes an appropriate, enduring relationship with an adult.

AB406,9 Section 9. 48.38 (4) (fg) 5. of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

AB406,8,15 48.38 (4) (fg) 5. As provided in par. (fm), placement in In the case of a child 16 years of age or over, placement of the child in some other planned permanent living arrangement that includes an appropriate, enduring relationship with an adult, including sustaining care, or the goal of transitioning the child to independence.

AB406,10 Section 10. 48.38 (4) (fm) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

AB406,9,7 48.38 (4) (fm) If the agency determines that there is a compelling reason why it currently would not be in the best interests of the a child 16 years of age or over 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 as the permanency goal for the child, the permanency goal of placing the child in some other planned permanent living arrangement or of transitioning the child to independence as described in par. (fg) 5 . If the agency makes that determination, the plan shall include the efforts made to achieve that permanency goal, including, if appropriate, through an out-of-state placement, a statement of that compelling reason, and, notwithstanding that compelling reason, a concurrent plan under s. 48.355 (2b) towards achieving a goal under par. (fg) 1. to 4. as a concurrent permanency goal in addition to the permanency goal under par. (fg) 5. The plan shall also include a plan to ensure that the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities determined in accordance with the reasonable and prudent parent standard.

AB406,11 Section 11. 48.38 (4) (h) (intro.) of the statutes is amended to read:

AB406,9,12 48.38 (4) (h) (intro.) If the child is 15 14 years of age or over, an independent living a plan describing the programs and services that are or will be provided to assist the child in preparing for the transition from out-of-home care to independent living a successful adulthood. The plan shall include all of the following:

AB406,12 Section 12. 48.38 (4) (h) 2. of the statutes is amended to read:

AB406,9,16 48.38 (4) (h) 2. The anticipated amount of time available in which to prepare the child for the transition from out-of-home care to independent living a successful adulthood.

AB406,13 Section 13. 48.38 (4) (h) 4. of the statutes is amended to read:

AB406,9,21 48.38 (4) (h) 4. A description of the assessment processes, tools, and methods that have been or will be used to determine the programs and services that are or will be provided to assist the child in preparing for the transition from out-of-home care to independent living a successful adulthood.

AB406,14 Section 14. 48.38 (4) (h) 5. of the statutes is amended to read:

AB406,9,24 48.38 (4) (h) 5. The rationale for each program or service that is or will be provided to assist the child in preparing for the transition from out-of-home care to independent living a successful adulthood, the time frames for delivering those programs or services, and the intended outcome of those programs or services.

AB406,15 Section 15. 48.38 (4) (h) 6. of the statutes is created to read:

AB406,10,5 48.38 (4) (h) 6. Documentation that the plan was prepared in consultation with the child and any persons selected by the child as required under sub. (2m).

AB406,16 Section 16. 48.38 (4) (h) 7. of the statutes is created to read:

AB406,10,14 48.38 (4) (h) 7. A document that describes the rights of the child with respect to education, health, visitation, and participation in court proceedings, the right of the child to receive the documents and information specified in s. 48.385 (2), the right of the child to receive a copy of the child's consumer report, as defined in 15 USC 1681a (d), and the right of the child to stay safe and to avoid exploitation, together with a signed acknowledgement by the child that he or she has been provided with a copy of that document and that the rights described in that document have been explained to him or her in an age-appropriate and developmentally appropriate way.

AB406,17 Section 17. 48.38 (5) (bm) 3. of the statutes is created to read:

AB406,11,3 48.38 (5) (bm) 3. If the permanency goal of the child's permanency plan is placement of the child in a planned permanent living arrangement described in sub. (4) (fg) 5., the agency that prepared the permanency plan shall present to the court or panel specific information showing that intensive and ongoing efforts were made by the agency, including searching social media, to return the child to the child's home or to place the child for adoption, with a guardian, or with a fit and willing relative and that those efforts have proved unsuccessful and specific information showing the steps taken by the agency, including consultation with the child, to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities and to ensure that the child's caregiver is applying the reasonable and prudent parent standard to decisions concerning the child's participation in those activities. In addition, at the review the court or panel shall consult with the child about the permanency outcome desired by the child.

AB406,18 Section 18. 48.38 (5) (c) 1. of the statutes is amended to read:

AB406,11,12 48.38 (5) (c) 1. The continuing necessity for and the safety and appropriateness of the placement. If the permanency goal of the child's permanency plan is placement of the child in a planned permanent living arrangement described in sub. (4) (fg) 5., the determination under this subdivision shall include an explanation of why the planned permanent living arrangement is the best permanency goal for the child and why, supported by compelling reasons, it continues not to be in the best interests of the child to be returned to his or her home or to be placed for adoption, with a guardian, or with a fit and willing relative.

AB406,19 Section 19. 48.38 (5) (c) 6. d. of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

AB406,11,17 48.38 (5) (c) 6. d. Being placed in some other planned permanent living arrangement that includes an appropriate, enduring relationship with an adult, including sustaining care, or transitioning to independence.

AB406,20 Section 20. 48.38 (5) (c) 7m. of the statutes is created to read:

AB406,11,25 48.38 (5) (c) 7m. If the permanency goal of the child's permanency plan is placement of the child in a planned permanent living arrangement described in sub. (4) (fg) 5., the steps taken by the agency, including consultation with the child, to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities and to ensure that the child's caregiver is applying the reasonable and prudent parent standard to decisions concerning the child's participation in those activities.

AB406,21 Section 21. 48.38 (5) (c) 9. of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

AB406,12,10 48.38 (5) (c) 9. If the child is the subject of an order that terminates as provided in s. 48.355 (4) (b) 4., 48.357 (6) (a) 4. or 48.365 (5) (b) 4. or of a voluntary transition-to-independent-living agreement under s. 48.366 (3), the appropriateness of the transition-to-independent-living plan developed under s. 48.385 (1); the extent of compliance with that plan by the child, the child's guardian, if any, the agency primarily responsible for providing services under that plan, and any other service providers; and the progress of the child toward making the transition to independent living a successful adulthood.

AB406,22 Section 22. 48.38 (5m) (c) 3. of the statutes is created to read:

AB406,12,24 48.38 (5m) (c) 3. If the permanency goal of the child's permanency plan is placement of the child in a planned permanent living arrangement described in sub. (4) (fg) 5., the agency that prepared the permanency plan shall present to the court specific information showing that intensive and ongoing efforts were made by the agency, including searching social media, to return the child to the child's home or to place the child for adoption, with a guardian, or with a fit and willing relative and that those efforts have proved unsuccessful and specific information showing the steps taken by the agency, including consultation with the child, to ascertain whether the child has regular, ongoing opportunities to engage in age or developmentally appropriate activities and to ensure that the child's caregiver is applying the reasonable and prudent parent standard to decisions concerning the child's participation in those activities. In addition, at the hearing the court shall consult with the child about the permanency outcome desired by the child.