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 Emergency 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.
Successor Guardianship
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. Termination of Payments if Parent in Home with Limited Exceptions
The rules provide that a guardian is required to report to the agency if the child’s parent is residing with the guardian and the child. The agency will review the guardian’s eligibility if the parent remains in the guardian’s home for more than 30 days, unless the guardian is providing care for the child’s parent and the child’s parent is a minor or is subject to an order for adult protective services or protective placement under s. 55.12, Stats. Following the review, the agency will send a notice of termination that will be effective 30 days after the date of the notice if the child’s parent is still residing with the guardian and the child. 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.
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.
Illinois. The definition of “fictive kin” is an individual who is shown to have close personal or emotional ties with the child or the child’s family prior to the child’s placement with the individual. Illinois has provisions on successor guardianship that are similar to the Wisconsin provisions.
Iowa. Iowa does not have a federally-funded subsidized guardianship program.
Michigan. It appears that nonrelatives may be eligible to be a legal custodian of the child and receive state-funded guardianship assistance. Michigan has successor guardianship provisions that apply to Title IV-E-funded guardianship assistance payments.
Effect on Small Businesses
The rule does not affect small businesses.
Analysis Used to Determine Effect on Small Businesses
The rule affects individuals, county departments of social services and human services, and the department’s Division of Child Protective Services.
Agency Contact Person
SECTION 1. DCF 55.02 (3) and (6) are amended to read:
DCF 55.02 (3) “Child” means a person less than 18 years of age, except as provided in s. DCF 55.10 (4). (6) “Interim caretaker” means a person seeking or receiving payments under s. 48.623 (6) (am), Stats. SECTION 2. DCF 55.02 (7) is renumbered to DCF 55.02 (7) (intro.) and amended to read:
DCF 55.02 (7) “Like-kin” means a person who has a significant emotional relationship with the child or the child’s family and to whom any of the following applies:
(a) who, prior Prior to the child’s placement in out-of-home care, the person had an existing relationship with the child or the child’s family that is similar to a familial relationship.
SECTION 3. DCF 55.02 (7) (b) is created to read:
DCF 55.02 (7) (b) During the child’s placement in out-of-home care, the person developed a relationship with the child or the child’s family that is similar to a familial relationship and all of the following apply:
1. The person is a foster parent who has had a relationship with the child for at least 2 years.
2. The child is 14 years of age or older.
3. The child has been placed in out-of-home care for 15 out of the last 22 months.
4. The agency or court determines that placement with a fit and willing relative is not in the child’s best interest.
SECTION 4. DCF 55.02 (11) is repealed and recreated to read:
DCF 55.02 (11) “Relative” has the same meaning as in s. 48.02 (15), Stats. SECTION 5. DCF 55.03 (1) (b) 1. (note) is repealed.
SECTION 6. DCF 55.03 (1) (c) is amended to read:
DCF 55.03 (1) (c) An order under s. 48.32, 48.345, 48.357, 48.363, 48.365, 938.32, 938.345, 938.357, 938.363, or 938.365, Stats., or a substantially similar Wisconsin tribal court order 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) (a), Stats., or a substantially similar proceeding under Wisconsin tribal law has been dismissed. SECTION 7. DCF 55.06 (2) (h) 11. and (m), (3), and (3) (note) are created to read:
DCF 55.06 (2) (h) 11. The child’s parent is residing with the guardian and child.
(m) That the guardian may name a prospective successor guardian of the child to assume the duty and authority of guardianship upon the death or incapacity of the guardian. The prospective successor guardian would be eligible for monthly subsidized guardianship payments only if the conditions specified in s. 48.623 (6) (bm), Stats., and s. DCF 55.125 are met and the court appoints the successor guardian to assume the duty and authority of guardianship under s. 48.977 (5m), Stats., or under a substantially similar Wisconsin tribal law and an agreement specified in s. DCF 55.01 (2). (3) An agency shall use a form prescribed by the department to amend a subsidized guardianship agreement with a guardian to include a prospective successor guardian.
Note: Form DCF-F-5038-E, Amended Subsidized Guardianship Agreement to Include Successor Guardian, is available in the forms section of the department website, http://dcf.wisconsin.gov, or by writing to the Division of Safety and Permanence, P.O. Box 8916, Madison, WI 53708-8916. SECTION 8. DCF 55.10 (1) (j) is created to read:
