1995 Wisconsin Act 275

275,91 Section 91 . 48.42 (1m) (b) of the statutes is created to read:

48.42 (1m) (b) The court may issue the temporary order ex parte or may refuse to issue the temporary order and hold a hearing on whether to issue an injunction. The temporary order is in effect until a hearing is held on the issuance of an injunction. The court shall hold a hearing on the issuance of an injunction on or before the date of the hearing on the petition to terminate parental rights under s. 48.422 (1).

Note: Provides that a juvenile court may issue a temporary order prohibiting visitation or contact ex parte. Provides that a hearing on the issuance of an injunction must be held on or before the day of the initial hearing on the TPR petition.

275,92 Section 92 . 48.42 (1m) (c) of the statutes is created to read:

48.42 (1m) (c) Notwithstanding any other order under s. 48.355 (3), the court may grant an injunction prohibiting the respondent from visiting or contacting the child if the court determines that the prohibition would be in the best interests of the child. An injunction under this subsection is effective according to its terms but may not remain in effect beyond the date the court dismisses the petition for termination of parental rights under s. 48.427 (2) or issues an order terminating parental rights under s. 48.427 (3).

275,93 Section 93 . 48.42 (3) (d) of the statutes is amended to read:

48.42 (3) (d) Advise the parties that if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court within 15 30 days after the judgment is entered for the right to pursue such relief to be preserved.

Note: Reflects the treatment of s. 808.04 (7m), stats., by this bill.

275,94 Section 94 . 48.42 (4) (c) 3. of the statutes is amended to read:

48.42 (4) (c) 3. That if the court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed in the trial court within 40 30 days after judgment is entered for the right to pursue such relief to be preserved.

Note: Provides that the notice given to the parties in a TPR case must notify the person that if the juvenile court terminates parental rights, a notice of intent to pursue relief from the judgment must be filed within 30 days after the date judgment is entered, rather than 40 days. This amendment makes s. 48.42 (4) (c) 3., stats., consistent with ss. 48.42 (3) (d), stats., and 808.04 (7m), stats., as amended by this bill.

275,95 Section 95 . 48.425 (1) (f) of the statutes is amended to read:

48.425 (1) (f) If the report recommends that the parental rights of both of the child's parents or the child's only living or known parent are to be terminated, the report shall contain a statement of the likelihood that the child will be adopted. This statement shall be prepared by an agency designated in s. 48.427 (3) (3m) (a) 1.to 4. and include a presentation of the factors which might prevent adoption, those which would facilitate it, and the agency which would be responsible for accomplishing the adoption.

Note: Revises a reference to s. 48.427 (3), stats., in current law to reflect the renumbering in that subsection by this bill.

275,96 Section 96 . 48.425 (1) (g) of the statutes is amended to read:

48.425 (1) (g) If an agency designated under s. 48.427 (3) (3m) (a) 1. to 4. determines that it is unlikely that the child will be adopted, or if adoption would not be in the best interests of the child, the report shall include a plan for placing the child in a permanent family setting, including. The plan shall include a recommendation as to the agency to be named guardian of the child or a recommendation that the person appointed as the guardian of the child under s. 48.977 (2) continue to be the guardian of the child.

Note: Amends s. 48.425 (1) (g), stats., relating to the contents of a juvenile court report required to be filed by an agency when a TPR petition is filed [or when the juvenile court orders a report under s. 48.424 (4) (b), stats.], to do all of the following:

1. Revise a reference to s. 48.427 (3), stats., in current law to reflect the renumbering in that subsection by this bill.

2. Specify that if an agency designated by the court in a TPR disposition under s. 48.427 (3m) (a) 1. to 4., stats., (as affected by the bill) determines that it is unlikely that the child will be adopted, or if adoption would not be in the best interests of the child, the plan for placing the child in a permanent family setting [a required part of the report if such a determination is made] must include either of the following:

a. A recommendation as to the agency to be named guardian of the child [current law].

b. A recommendation that the person appointed as the guardian of the child under new s. 48.977 (2), stats., as created by this bill, continue to be the guardian of the child.

275,97 Section 97 . 48.427 (1m) of the statutes is created to read:

48.427 (1m) In addition to any evidence presented under sub. (1), the court shall permit the foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) of the child to make a written or oral statement during the fact-finding or dispositional hearing or to submit a written statement prior to disposition, relevant to the issue of disposition.

Note: Revises s. 48.427, stats., relating to dispositions in TPR proceedings, to require the juvenile court to permit the foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), stats., of the child to make a written or oral statement during the fact-finding or dispositional hearing, or to submit a written statement prior to disposition, relevant to the issue of disposition.

275,98 Section 98 . 48.427 (3) (intro.) of the statutes is renumbered 48.427 (3) and amended to read:

48.427 (3) The court may enter an order terminating the parental rights of one or both parents.

(3m) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has not been appointed under s. 48.977, the court shall either:

275,99 Section 99 . 48.427 (3p) of the statutes is created to read:

48.427 (3p) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has been appointed under s. 48.977, the court may enter one of the orders specified in sub. (3m). If the court enters an order under this subsection, the court shall terminate the guardianship under s. 48.977.

275,99d Section 99d. 48.427 (4) of the statutes is amended to read:

48.427 (4) The court may enter an order terminating the parental If the rights of one or both parents and are terminated under sub. (3), the court may enter an order placing the child in sustaining care under s. 48.428.

275,99g Section 99g. 48.427 (6) (intro.) of the statutes is amended to read:

48.427 (6) (intro.) If an order is entered under sub. (3) or (4), the court shall:

275,99m Section 99m. 48.427 (7) of the statutes is created to read:

48.427 (7) (a) If an order is entered under sub. (3), the court may orally inform the parent or parents who appear in court of the ground for termination of parental rights specified in s. 48.415 (10).

(b) In addition to the notice permitted under par. (a), any written order under sub. (3) may notify the parent or parents of the information specified in par. (a).

275,100 Section 100 . 48.428 (2) of the statutes is renumbered 48.428 (2) (a) and amended to read:

48.428 (2) (a) When Except as provided in par. (b), when a court places a child in sustaining care after an order under s. 48.427 (4), the court shall transfer legal custody of the child to the county department or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3) (3m) (a) 1. to 4. and place the child in the home of a licensed foster parent or licensed treatment foster parent with whom the child has resided for 6 months or longer. Pursuant to such a placement, this licensed foster parent or licensed treatment foster parent shall be a sustaining parent with the powers and duties specified in sub. (3).

275,101 Section 101 . 48.428 (2) (b) of the statutes is created to read:

48.428 (2) (b) When a court places a child in sustaining care after an order under s. 48.427 (4) with a person who has been appointed as the guardian of the child under s. 48.977 (2), the court may transfer legal custody of the child to the county department or a licensed child welfare agency, transfer guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4. and place the child in the home of a licensed foster parent or licensed treatment foster parent with whom the child has resided for 6 months or longer. Pursuant to such a placement, that licensed foster parent or licensed treatment foster parent shall be a sustaining parent with the powers and duties specified in sub. (3). If the court transfers guardianship of the child to an agency listed in s. 48.427 (3m) (a) 1. to 4., the court shall terminate the guardianship under s. 48.977.

275,101m Section 101m. 48.43 (1) (intro.) of the statutes is amended to read:

48.43 (1) (intro.) The court shall enter a judgment setting forth its findings and disposition in accordance with s. 48.426 in an order implementing the disposition chosen. If the court dismisses the petition under s. 48.427 (2), the order shall contain the reasons for dismissal. If the disposition is for the termination of parental rights under s. 48.427 (3) or (4), the order shall contain all of the following:

275,102 Section 102 . 48.43 (1) (a) of the statutes is amended to read:

48.43 (1) (a) The identity of any agency or individual that has received guardianship of the child or will receive guardianship or custody of the child upon termination and the identity of the agency which will be responsible for securing the adoption of the child or establishing the child in a permanent family setting.

Note: Revises s. 48.43 (1) (a), stats., relating to a required item in the contents of an order for TPR, to specify that the order must contain the identity of any agency or individual that has received guardianship of the child or will receive guardianship or custody of the child upon TPR. Current law only refers to “will receive" and does not refer to an agency or individual that has already received guardianship of the child, such as a guardian under s. 48.977 (2), stats., as created by this bill.

275,103 Section 103 . 48.43 (4) of the statutes is amended to read:

48.43 (4) A certified copy of the order terminating parental rights shall be furnished by the court to the agency given guardianship for placement for adoption of the child or to the person or agency given custodianship or guardianship for placement of the child in sustaining care and to the person appointed as the guardian of the child under s. 48.977 (2). The court shall, upon request, furnish a certified copy of the child's birth certificate and a transcript of the testimony in the termination of parental rights hearing to the same person or agency.

Note: Revises s. 48.43 (4), stats., relating to the requirement that the juvenile court furnish a certified copy of the TPR order to certain persons and entities, to include the person appointed as the guardian of the child under s. 48.977 (2), stats., as created by this bill, as one of those persons required to be furnished with a certified copy of the order.

275,104 Section 104 . 48.43 (5) (b) of the statutes is amended to read:

48.43 (5) (b) The court shall hold a hearing to review the permanency plan within 30 days after receiving a report under par. (a). At least 10 days before the date of the hearing, the court shall provide notice of the time, date and purpose of the hearing to the agency that prepared the report, the child's guardian, the child, if he or she is 12 years of age or over, and the child's foster parent, the child's treatment foster parent, other physical custodian described in s. 48.62 (2) or the operator of the facility in which the child is living.

Note: Revises s. 48.43 (5) (b), stats., relating to the hearing to review a child's permanency plan subsequent to a TPR, to require that notice of the time, date and purpose of the hearing be given to any other physical custodian described in s. 48.62 (2), stats., of the child. Current law requires notice to be given to the child's foster parent, treatment foster parent, or the operator of the facility in which the child is living, but does not refer to any other physical custodian described in s. 48.62 (2), stats.

275,105 Section 105 . 48.43 (5) (c) of the statutes is amended to read:

48.43 (5) (c) Following the hearing, the court shall make all of the determinations specified under s. 48.38 (5) (c), except the determinations relating to the child's parents. The court may amend the order under sub. (1) to transfer the child's guardianship and custody to any agency specified under s. 48.427 (3) (3m) (a) 1. to 4. which consents to the transfer, if the court determines that the transfer is in the child's best interest. If an order is amended, the agency that prepared the permanency plan shall revise the plan to conform to the order and shall file a copy of the revised plan with the court. Each plan filed under this paragraph shall be made a part of the court order.

Note: Revises a reference to s. 48.427 (3), stats., in current law to reflect the renumbering in that subsection by this bill.

275,106 Section 106 . 48.46 (2) of the statutes is amended to read:

48.46 (2) A parent who has consented to the termination of his or her parental rights under s. 48.41 or who did not contest the petition initiating the proceeding in which his or her parental rights were terminated may move the court for relief from the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any such motion shall be filed within 40 30 days after the entry of the judgment or order terminating parental rights, unless the parent files a timely notice of intent to pursue relief from the judgment under s. 808.04 (7) (7m), in which case the motion shall be filed within the time permitted by s. 809.30 (2) (h) 809.107 (5). A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. Motions under this subsection and appeals to the court of appeals shall be the exclusive remedies for such a parent to obtain a new hearing in a termination of parental rights proceeding.

275,107 Section 107 . 48.62 (2) of the statutes is amended to read:

48.62 (2) A relative as defined in s. 48.02 (15) or as specified in s. 49.19 (1) (a) or a guardian of a child, who provides care and maintenance for a child, is not required to obtain the license specified in this section. The department, county department or licensed child welfare agency as provided in s. 48.75 may issue a license to operate a foster home or a treatment foster home to a relative who has no duty of support under s. 49.90 (1) (a) and who requests a license to operate a foster home or treatment foster home for a specific child who is either placed by court order or who is the subject of a voluntary placement agreement under s. 48.63. The department, a county department or a licensed child welfare agency may, at the request of a guardian appointed under s. 48.977 or ch. 880, license the guardian's home as a foster home or treatment foster home for the guardian's minor ward who is living in the home and who is placed in the home by court order. Relatives with no duty of support and guardians appointed under s. 48.977 or ch. 880 who are licensed to operate foster homes or treatment foster homes are subject to the department's licensing rules.

Note: Current s. 48.62 (2), stats., relating to licensing of foster homes, specifies all of the following, in pertinent part:

1. That the department of health and social services (DHSS), a county department of human services or social services (county department) or a licensed child welfare agency may, at the request of a guardian appointed under ch. 880, stats., license the guardian's home as a foster home or treatment foster home for the guardian's minor ward who is living in the home and who is placed in the home by an order of the juvenile court.

2. That relatives with no duty of support and guardians appointed under ch. 880, stats., who are licensed to operate foster homes or treatment foster homes are subject to the licensing rules.

This Section adds guardians appointed under s. 48.977, stats., as created by this bill, to the provisions in s. 48.62 (2), stats., which currently refer only to guardians appointed under ch. 880, stats.

275,108 Section 108 . 48.831 (title) of the statutes is amended to read:

48.831 (title) Appointment of guardian for child without a living parent for adoptability finding.

275,109 Section 109 . 48.831 (1) of the statutes is amended to read:

48.831 (1) Type of guardianship. This section may be used for the appointment of a guardian of a child who does not have a living parent if a finding as to the adoptability of a child is sought. Chapter Except as provided in s. 48.977, ch. 880 applies to the appointment of a guardian for a child who does not have a living parent for all other purposes. An appointment of a guardian of the estate of a child who does not have a living parent shall be conducted in accordance with the procedures specified in ch. 880.

Note: Current s. 48.831 (1), stats., specifies that except for appointment of a guardian for a child without a living parent for purposes of an adoptability finding regarding the child (which appointment and procedure are done under s. 48.831, stats.), ch. 880, stats., applies to the appointment of a guardian for a child who does not have a living parent for all other purposes. This Section provides that, except for guardianships under s. 48.977, stats., as created by this bill, and guardianships under current s. 48.831, stats., ch. 880, stats., applies to the appointment of a guardian for a child who does not have a living parent for all other purposes.

275,109m Section 109m. 48.833 of the statutes is amended to read:

48.833 Placement of children for adoption by the department, county departments and child welfare agencies. The department, a county department under s. 48.57 (1) (e) or (hm) or a child welfare agency licensed under s. 48.60 may place a child for adoption in a licensed foster home or a licensed treatment foster home without a court order if the department, county department under s. 48.57 (1) (e) or (hm) or the child welfare agency is the guardian of the child or makes the placement at the request of another agency which is the guardian of the child. Before placing a child for adoption under this section, the department, county department or child welfare agency making the placement shall consider the availability of a placement for adoption with a relative of the child who is identified in the child's permanency plan under s. 48.38 or 938.38 or who is otherwise known by the department, county department or child welfare agency. When a child is placed under this section in a licensed foster home or a licensed treatment foster home for adoption, the department, county department or child welfare agency making the placement shall enter into a written agreement with the adoptive parent, which shall state the date on which the child is placed in the licensed foster home or licensed treatment foster home for adoption by the adoptive parent.

275,110 Section 110 . 48.977 of the statutes is created to read:

48.977 Appointment of relatives as guardians for certain children in need of protection or services. (1) Definition. In this section, “relative" means a relative as defined in s. 48.02 (15) or as specified in s. 49.19 (1) (a) 2. a.

(2) Type of guardianship. This section may be used for the appointment of a relative of a child as a guardian of the person for the child if the court finds all of the following:

(a) That the child has been adjudged to be in need of protection or services under s. 48.13 (1), (2), (3), (3m), (4), (5), (8), (9), (10), (10m), (11) or (11m) or 938.13 (4) and been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under s. 48.345, 48.357, 48.363, 48.365, 938.345, 938.357, 938.363 or 938.365 for a cumulative total period of one year or longer.

  (b) That the person nominated as the guardian of the child is a relative of the child with whom the child has been placed and that it is likely that the child will continue to be placed with that relative for an extended period of time or until the child attains the age of 18 years.

  (c) That, if appointed, it is likely that the relative would be willing and able to serve as the child's guardian for an extended period of time or until the child attains the age of 18 years.

(d) That it is not in the best interests of the child that a petition to terminate parental rights be filed with respect to the child.

  (e) That the child's parent is neglecting, refusing or unable to carry out the duties of a guardian or, if the child has 2 parents, both parents are neglecting, refusing or unable to carry out the duties of a guardian.

(f) That the agency primarily responsible for providing services to the child under a court order has made reasonable efforts to make it possible for the child to return to his or her home but that reunification of the child with the child's parent or parents is unlikely or contrary to the best interests of the child and that further reunification efforts are unlikely to be made or are contrary to the best interests of the child.

Note: Creates a new section in ch. 48 relating to the appointment of a relative as a guardian for a child adjudged CHIPS because the child: (1) is without a parent or guardian; (2) has been abandoned; (3) has been the victim of sexual or physical abuse; (4) is at substantial risk of becoming the victim of sexual or physical abuse based on information that another child in the home has been the victim of such abuse; (5) has a parent or guardian who signs a petition requesting juvenile court jurisdiction and who is unable or needs assistance to care for, control or provide necessary special treatment or care for the child; (6) has been placed for care or adoption in violation of law; (7) is receiving inadequate care during the period of time a parent is missing, incarcerated, hospitalized or institutionalized; (8) is at least 12 years of age, signs a petition requesting juvenile court jurisdiction and is in need of special treatment or care which the parent, guardian or legal custodian is unwilling, neglecting, unable or needs assistance to provide; (9) has a parent, guardian or legal custodian who neglects, refuses or is unable, for reasons other than poverty, to provide necessary care so as to seriously endanger the physical health of the child; (10) has a parent, guardian or legal custodian who is at substantial risk of neglecting, refusing or being unable, for reasons other than poverty, to provide necessary care because that person has seriously endangered the physical health of another child in the home; (11) is suffering emotional damage for which the parent, guardian or legal custodian is neglecting, refusing or unable to provide treatment; or (12) is suffering from an alcohol or other drug abuse impairment, exhibited to a severe degree, for which the parent, guardian or legal custodian is neglecting, refusing or unable to provide treatment. [In describing the grounds for CHIPS jurisdiction which are listed in this Section, the Note reflects the modifications of several of these grounds as set forth in this bill. This Section, however, also applies to a child adjudged CHIPS under any of the listed grounds prior to those modifications.]

In order to have a guardian appointed under this new section, the juvenile court must find all of the following:

1. That the child has been placed, or continued in a placement, outside of his or her home pursuant to one or more juvenile court orders under s. 48.345 or 938.345, stats. (disposition of child adjudged CHIPS), 48.357 or 938.357, stats. (change in placement), 48.363 or 938.363, stats. (revision of dispositional order), or 48.365, stats. (extension of dispositional order), for a cumulative period of one year or longer.

2. That all of the items set forth in s. 48.977 (2) (b) to (f), stats., as created by this bill, have been met, including that it is likely that the child will continue to be placed with his or her relative-guardian for an extended period of time or until the child attains the age of 18 years; that the relative would be willing and able to serve as the child's guardian for an extended period of time or until the child attains the age of 18 years; that it is not in the best interests of the child that a TPR petition be filed with respect to the child; that the child's parent is, or if the child has 2 parents that the parents are, neglecting, refusing or unable to carry out the duties of a guardian; and that the agency responsible for providing services to the child has made reasonable efforts to return the child to his or her home but that reunification with the child's parent or parents is unlikely or contrary to the best interests of the child.

(3) Designation as a permanent placement. If a court appoints a guardian for a child under sub. (2), the court may designate the child's placement with that guardian as the child's permanent foster placement, but only for purposes of s. 48.368 (2).

(4) Procedure and disposition. (a) Who may file petition. Any of the following persons may file a petition for the appointment of a guardian for a child under sub. (2):

1. The child or the child's guardian or legal custodian.

2. The child's guardian ad litem.

3. The child's parent.

  4. The relative with whom the child is placed if the relative is nominated as the guardian of the child in the petition.

5. The department.