State of Wisconsin
Department of Children and Families
The Wisconsin Department of Children and Families proposes to repeal s. DCF 55.03 (1) (b) 1. (note) and 55.10 (2) (b); to renumber and amend s. DCF 55.02 (7); to amend ss. DCF 55.02 (3) and (6), 55.03 (1) (c), 55.10 (2) (c), 55.10 (5) (d) 1., and 55.13 (title), (1), (2) (intro.), (a) to (d),(e) 1., 2., (f), (4) (intro.), and (5); to repeal and recreate s. DCF 55.02 (11); and to create ss. DCF 55.02 (7) (b), 55.06 (2) (h) 11. and (m), (3), and (3) (note), 55.10 (1) (j) and (5) (c) 4., and 55.125, relating to subsidized guardianship.
Analysis Prepared by the Department of Children and Families
Statutes interpreted: Section 48.623, Stats. Related statute or rule: Section 48.977, Stats.; Chapters DCF 12 and 56
Explanation of Agency Authority
Section 48.623 (7) (dm), Stats., as created by 2015 Wisconsin Act 143, directs the department to promulgate rules to establish the conditions that must be met for a person specified in s. 48.623 (1) (b) 1. c., Stats., to be eligible for subsidized guardianship payments. Section 48.623 (1) (b) 1. c., Stats., as created by 2015 Wisconsin Act 143, provides that, subject to the rules promulgated under s. 48.623 (7) (dm), Stats., a guardian may be a person who has a significant emotional relationship with the child and who, during the child’s placement in out−of−home care, developed a relationship with the child that is similar to a familial relationship. Section 48.623 (7) (e), Stats., as created by 2015 Wisconsin Act 129, directs the department to promulgate rules governing the payment of monthly subsidized guardianship payments to a successor guardian of a child. Eligibility for subsidized guardianship under s. 48.623 (1), Stats., includes the requirement that the child has been removed from his or her home under a voluntary agreement under s. 48.63, Stats., or under a substantially similar tribal law or under a court order containing a finding that continued placement of the child in his or her home would be contrary to the welfare of the child. Section 227.11 (2) (a), Stats., expressly confers rule-making authority on each agency to promulgate rules interpreting the provisions of any statute enforced or administered by the agency, subject to specified conditions.
Summary of the Proposed Rule
Addition to Definition of Like-kin
Among other conditions, eligibility for subsidized guardianship payments is limited to a guardian of a child who is a relative as defined in s. 48.02 (15), Stats., or like-kin to the child. The current rule defines “like-kin” as “a person who has a significant emotional relationship with the child or the child’s family and who, prior to the child’s placement in out-of-home care, had an existing relationship with the child or the child’s family that is similar to a familial relationship. 2015 Wisconsin Act 143 provides that, subject to the rules promulgated under s. 48.623 (7) (dm), Stats., a guardian may also be a person who has a significant emotional relationship with the child or the child’s family and who, during the child’s placement in out−of−home care, developed a relationship with the child that is similar to a familial relationship. The rules add the following requirements to the new addition to the definition of “like-kin”:
• The person is a foster parent who has had a relationship with the child for at least 2 years.
• The child is 14 years of age or older.
• The child has been in out-of-home care for 15 out of the last 22 months.
• The agency or court determines that placement with a fit and willing relative is not in the child’s best interest.
The federal Preventing Sex Trafficking and Strengthening Families Act provides that upon the death or incapacity of a subsidized guardian, states are required to continue monthly subsidized guardianship payments to a successor guardian if the prospective successor guardian was named in the guardian’s subsidized guardianship agreement entered into before the guardian’s death or incapacity and other eligibility conditions are met.
Before monthly subsidized guardianship payments can be made to a prospective successor guardian, 2015 Wisconsin Act 129 and the rule requires the agency to first determine whether the prospective successor guardian is eligible to enter into a subsidized guardianship agreement. Eligibility requirements include that the prospective successor guardian demonstrates a strong commitment to caring permanently for the child, the child has been consulted about the arrangement if the child is age 14 or over, the agency determines that the prospective guardian is eligible to be licensed as a foster parent, and the agency determines that placement of the child with the prospective successor guardian is in the best interests of the child. If a prospective successor guardian is eligible, the agency and the prospective successor guardian shall enter into a subsidized guardianship agreement. An agency may not provide subsidized guardianship payments to the prospective successor guardian until the court appoints the person as guardian of the child under s. 48.977 (5m), Stats., or a substantially similar tribal law and an agreement under s. DCF 55.01 (2), and any order under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363, or 938.365, Stats., placing the child, or continuing the placement of the child, outside of the child's home has been terminated, or any proceeding in which the child has been adjudged to be in need of protection or services specified in s. 48.977 (2) (a), Stats., has been dismissed, as provided in s. 48.977 (3r) (b), Stats. Once the court appoints the person as guardian under s. 48.977 (5m), Stats., and dismisses the specified orders, the agency shall provide monthly payments.
Suspension of Payments if Parent in Home
The rules provide that a guardian is required to report to the agency if the child’s parent has resided with the guardian and child for more than 60 days, unless the guardian is providing care for the child’s parent and the child’s parent is a minor or the child’s parent is subject to an order for adult protective services or protective placement. The agency will suspend monthly payments to the guardian for the time the parent is in the home beyond 60 days unless one of these exceptions applies.
Summary of Factual Data and Analytical Methodologies
• The definition of “like-kin” for a person who has a significant emotional relationship with a child that is similar to a familial relationship and that developed during the child’s placement in out-of-home care is based on data that shows children age 14 and over are less likely to be adopted than children under age 14. Adoption is the preferred permanency option for a child.
• The successor guardianship provisions specify procedures to implement state and federal statutes and Administration for Children and Families program interpretations.
The rule allows very limited circumstances when a guardian can receive subsidized guardian payments if the child’s parent is in the home for more than 60 days.
Summary of Related Federal Law
42 USC 673 (d) (3), as created by Section 207 of the Preventing Sex Trafficking and Strengthening Families Act, provides for continuation of subsidized guardianship payments if the guardian dies or is incapacitated, and a successor guardian was named in the agreement before the guardian’s death or incapacity. Implementation of Section 207 is required as a condition of funding under Title IV-E of the Social Security Act. Section 207 was effective September 29, 2014, and Wisconsin is currently under a Program Improvement Plan due to delayed implementation.
The Administration for Children and Families (ACF) Program Instruction ACYF-CB-PI-10-11, Fostering Connections to Success and Increasing Adoptions Act of 2008 Comprehensive Guidance, July 9, 2010, provides that a State has discretion to define the term “relative” for the purposes of the subsidized guardianship program. The ACF will accept a Title IV-E plan or amendment that contains a reasonable interpretation of “relative,” including a plan that limits the term to biological and legal familial ties or a plan that more broadly includes tribal kin, extended family and friends, or other “fictive kin.”
Comparison to Adjacent States
Minnesota. The definition of “relative” includes an individual who is an important friend with whom a child has resided or had significant contact. Minnesota has provisions on successor guardianship that are similar to the Wisconsin provisions.