Amendment SSA1-SB284

LRBs0201/3

GMM:wlj:jf

2005 - 2006 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2005 SENATE BILL 284

September 19, 2005 - Offered by Committee on Health, Children, Families, Aging and Long Term Care.

SB284-SSA1,2,11 An Act to repeal 48.981 (1) (fm); to renumber and amend 48.21 (1) (b), 48.43 (2), 48.981 (3) (a) 2. and 48.981 (3) (c) 1.; to amend 48.02 (15), 48.21 (1) (a), 48.371 (1) (intro.), 48.371 (1) (a), 48.371 (1) (b), 48.371 (1) (c), 48.371 (3) (intro.), 48.371 (3) (a), 48.371 (3) (b), 48.371 (3) (c), 48.371 (3) (d), 48.425 (1) (f), 48.425 (1) (g), 48.427 (3m) (a) 1., 48.428 (2) (a), 48.428 (2) (b), 48.43 (5) (c), 48.57 (3m) (a) 2., 48.57 (3n) (a) 2., 48.62 (2), 48.65 (2) (a), 48.75 (1g) (a) 1., 48.92 (2), 48.981 (1) (d), 48.981 (3) (c) 4., 938.02 (15), 938.371 (1) (intro.), 938.371 (1) (a), 938.371 (1) (b), 938.371 (1) (c), 938.371 (3) (intro.), 938.371 (3) (a), 938.371 (3) (b), 938.371 (3) (c) and 938.371 (3) (d); and to create 48.21 (1) (b) 1., 48.371 (4), 48.371 (5), 48.427 (3m) (am), 48.43 (2) (a), 48.43 (2) (b), 48.981 (3) (a) 2. a., 48.981 (3) (a) 2. b., 48.981 (3) (a) 2. c., 48.981 (3) (a) 2. d., 48.981 (3) (a) 2d., 938.371 (4) and 938.371 (5) of the statutes; relating to: the investigation of child abuse reports in which a person who is not a caregiver of the child is suspected of the abuse of the child; defining the persons who are considered to be relatives of a child or juvenile for purposes of the Children's Code and the Juvenile Justice Code; extending the time for which a child may be held in custody when additional time is required to determine whether the filing of a petition initiating proceedings under the Children's Code is necessary; the provision of certain information to a relative of a child when the child is placed in the home of the relative; the status of a child's relatives following a termination of parental rights; and the transfer of guardianship and custody of a child to a county department of human services or social services in a county other than Milwaukee County for the placement of a child for adoption in the home of the child's foster or treatment foster parents.

Analysis by the Legislative Reference Bureau

This substitute amendment makes various changes to the Children's Code and the Juvenile Justice Code relating to the investigation of child abuse reports in which a person who is not a caregiver of the child is suspected of the abuse of the child; defining the persons who are considered to be relatives of a child or juvenile for purposes of the Children's Code and the Juvenile Justice Code; extending the time for which a child may be held in custody when additional time is required to determine whether the filing of a petition initiating proceedings under the Children's Code is necessary; and the transfer of guardianship and custody of a child to a county department of human services or social services (county department) in a county other than Milwaukee County for placement of the child for adoption in the home of the child's foster or treatment foster parents. The changes are as follows:

Child abuse investigations of noncaregivers

Under current law, certain persons having reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or having reason to believe that a child seen in the course of professional duties has been threatened with abuse or neglect and that abuse or neglect of the child will occur must report that suspected or threatened abuse or neglect to the county department of human services or social services or, in Milwaukee County, to the Department of Health and Family Services (DHFS) or a child welfare agency under contract with DHFS (collectively "agency") or to the sheriff or police department. Current law also permits any other person having reason to suspect that a child has been abused or neglected or reason to believe that a child has been threatened with abuse or neglect and that abuse or neglect of the child will occur to make such a report.

Current law requires the sheriff or police department to refer to an agency all cases of child abuse or neglect reported to it and the agency, within 24 hours after receiving a report, to initiate a diligent investigation to determine if the child is in need of protection or services. Current law also specifies certain procedures that an agency must follow in investigating cases in which there is reason to suspect that the child was abused or neglected, or was threatened with abuse or neglect, by a caregiver, which is defined under current law as a relative, guardian, or legal custodian of the child; a person who resides or has resided regularly or intermittently in the same dwelling as the child; an employee of a residential facility or a residential care center for children and youth in which the child was or is placed; a person who provides or has provided care for the child in or outside of the child's home; or any other person who exercises or has exercised temporary or permanent control or supervision over the child.

This substitute amendment permits, rather than requires, the sheriff or police department to refer to an agency a case in which a person who is not a caregiver of a child is suspected of the abuse, or of the threatened abuse, of the child and permits, rather than requires, the agency to initiate a diligent investigation to determine if the child is in need of protection or services. In cases in which a caregiver is suspected of the abuse or neglect, or of the threatened abuse or neglect, of a child, in which a caregiver is suspected of facilitating or failing to take action to prevent the suspected or threatened abuse or neglect of a child, or in which it cannot be determined who abused or neglected a child, the sheriff or police department must refer the case to an agency and the agency must investigate the case as under current law.

Definition of "relative" in Children's Code and Juvenile Justice Code

Currently, for purposes of the Children's Code and the Juvenile Justice Code, a "relative" of a child or juvenile is defined as a parent, grandparent, greatgrandparent, stepparent, brother, sister, first cousin, nephew, niece, uncle, or aunt, whether the relationship is by blood, marriage, or adoption. For the purpose of determining eligibility to receive kinship care or long-term kinship care payments for providing care and maintenance for a child, for the purpose of determining eligibility to be appointed as the guardian of a child in need of protection or services, and for the purpose of exempting a relative who is providing care and maintenance for a child from having to obtain a foster home license, the definition is expanded to include a stepbrother or stepsister, any person of a preceding generation as denoted by the prefix grand, great, or great-great, and the spouse of any relative, even if the marriage is terminated by death or divorce. The definition is also expanded for purposes of investigating any suspected or threatened abuse or neglect of a child by a caregiver of the child to include a second cousin, stepgrandparent, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, stepuncle, or stepaunt.

This substitute amendment expands the definitions of a "relative" of a child or juvenile for purposes of the Children's Code and the Juvenile Justice Code, other than for purposes of day care licensing, to include, in addition to the relatives currently listed in those definitions, a stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, second cousin, stepuncle, stepaunt, any person of a preceding generation as denoted by the prefix grand, great, or great-great, and the spouse of any relative, even if the marriage is terminated by death or divorce. The substitute amendment also conforms the various other definitions of "relative" found in the Children's Code to the expanded definition, except that under the substitute amendment the definitions of "kinship care relative," "long-term kinship care relative," and "relative," for purposes of eligibility to be appointed as the guardian of a child in need of protection or services, do not include a parent of the child.

Holding a child in custody

Under current law, if a child who has been taken into custody under the Children's Code is not released, a judge of the court assigned to exercise jurisdiction under the Children's Code (juvenile court) or a circuit court commissioner must conduct a hearing within 48 hours of the time the decision to hold the child in custody was made, exclusive of Saturdays, Sundays, and legal holidays, and a petition initiating proceedings under the Children's Code must be filed by the time of the hearing. If a hearing is not held within the time required or if a petition is not filed by the time of the hearing, the child must be released, except that if a hearing is held, but no petition is filed, the child may be held in custody for an additional 72 hours, exclusive of Saturdays, Sundays, and legal holidays, if the juvenile court judge or circuit court commissioner determines that probable cause exists to believe that the child is an imminent danger to himself or herself or others or that the child's parent, guardian, or legal custodian or another responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care for the child.

This substitute amendment permits a child to be held in custody for an additional 72 hours, when no petition is filed by the time of the custody hearing, if the juvenile court judge or circuit court commissioner determines that probable cause exists to believe that additional time is required to determine whether the filing of a petition initiating proceedings under the Children's Code is necessary.

Provision of information to relative caregivers

Under current law, a permanency plan, which is a plan designed to ensure that a child is reunified with his or her family whenever appropriate or that the child quickly attains a placement or home providing long-term stability, must be prepared for a child who is living in a foster home, treatment foster home, group home, or residential care center for children and youth (RCC), whether under a voluntary agreement or an order of the juvenile court, or in the home of a relative under an order of the juvenile court. Currently, certain information from a child's permanency plan and certain medical information must be provided to the child's foster parent, treatment foster parent, or operator of the group home or RCC in which the child is placed at the time of placement. This information includes information relating to any mental, emotional, cognitive, developmental, or behavioral disability of the child; any involvement of the child in a criminal gang; any involvement of the child in any activities that are harmful to the child's physical, mental, or moral well-being; any involvement of the child, whether as victim or perpetrator, in certain sex crimes; the religious affiliation or belief of the child; the results of any tests of the child for human immunodeficiency virus or viral hepatitis, type B; and any other medical information concerning the child that is necessary for the care of the child

This substitute amendment requires the information to be provided also to a relative in whose home a child is placed and permits the information to be provided before the child is placed.

Status of relative following TPR

Under current law, a TPR order permanently severs all legal rights and duties between the parent whose parental rights have been terminated and the child. A TPR order also results in the legal severance of the relationship between the child and the child's entire family. State v. Margaret H., 234 Wis. 2d 606, 619 (2000).

This substitute amendment codifies that a TPR order permanently severs all legal rights and duties not only between the parent whose parental rights are terminated but also between all persons whose relationship to the child is derived through that parent except as follows:

1. The relationship between the child and his or her siblings is not severed until that relationship is extinguished by an order of adoption.

2. A relative whose relationship to the child is derived through the parent whose parental rights are terminated is considered to be a relative of the child for purposes of placement of, and permanency planning for, the child until that relationship is extinguished by an order of adoption.

Placement of a child for adoption

Under current law, if the parental rights of both parents or of the only living parent of a child are terminated, the juvenile court must do one of the following:

1. Transfer guardianship and custody of the child pending adoptive placement to a county department that is authorized to accept guardianship of a child, for purposes of placing a child for adoption, to a child welfare agency that is licensed to accept guardianship of a child and to place the child for adoption, to DHFS, to a relative with whom the child resides, or to an individual who has been appointed guardian of the child by a court of a foreign jurisdiction.

2. Transfer guardianship of the child to a county department, child welfare agency, or DHFS and custody of the child to a relative or to an individual in whose home the child has resided for at least 12 consecutive months immediately prior to the termination of parental rights (TPR).

This substitute amendment permits the juvenile court, following a TPR, to transfer guardianship and custody of a child to a county department of a county other than Milwaukee County for placement of the child for adoption by the child's foster parent or treatment foster parent, only if the county department has agreed to accept guardianship and custody of the child and the foster parent or treatment foster parent has agreed to adopt the child.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB284-SSA1, s. 1 Section 1. 48.02 (15) of the statutes is amended to read:

SB284-SSA1,6,8 48.02 (15) "Relative" means a parent, grandparent, greatgrandparent, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, brother-in-law, sister-in-law, first cousin, 2nd cousin, nephew, niece, uncle, or aunt. This relationship shall be, stepuncle, stepaunt, or any person of a preceding generation as denoted by the prefix of grand, great, or great-great, whether by blood, marriage, or legal adoption, or the spouse of any person named in this subsection, even if the marriage is terminated by death or divorce.

SB284-SSA1, s. 2 Section 2. 48.21 (1) (a) of the statutes is amended to read:

SB284-SSA1,6,23 48.21 (1) (a) If a child who has been taken into custody is not released under s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss. 48.205 to 48.209 shall be conducted by the judge or a circuit court commissioner within 48 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under s. 48.25 shall be filed, except that no petition need be filed where a when the child is taken into custody under s. 48.19 (1) (b) or (d) 2. or 7. or where when the child is a runaway from another state, in which case a written statement of the reasons for holding a the child in custody shall be substituted if the petition is not filed. If no hearing has been held within 48 hours, excluding Saturdays, Sundays, and legal holidays, or if no petition or statement has been filed at the time of the hearing, the child shall be released except as provided in par. (b) pars. (b) and (bm). A parent not present at the hearing shall be granted a rehearing upon request for good cause shown.

SB284-SSA1, s. 3 Section 3. 48.21 (1) (b) of the statutes is renumbered 48.21 (1) (b) (intro.) and amended to read:

SB284-SSA1,7,6 48.21 (1) (b) (intro.) If no petition has been filed by the time of the hearing, a child may be held in custody with approval of the judge or circuit court commissioner for an additional 72 hours from the time of the hearing, excluding Saturdays, Sundays, and legal holidays, only if, as a result of the facts brought forth at the hearing, the judge or circuit court commissioner determines that probable cause exists to believe that any of the following:

SB284-SSA1,7,7 2. That the child is an imminent danger to himself or herself or to others, that.

SB284-SSA1,7,10 3. That probable cause exists to believe that the parent, guardian, or legal custodian of the child or other responsible adult is neglecting, refusing, unable, or unavailable to provide adequate supervision and care or, .

SB284-SSA1,7,20 4. That, if the child is an expectant mother who was taken into custody under s. 48.19 (1) (cm) or (d) 8., that probable cause exists to believe that there is a substantial risk that if the child expectant mother is not held, the physical health of the unborn child, and of the child when born, will be seriously affected or endangered by the child expectant mother's habitual lack of self-control in the use of alcohol beverages, controlled substances, or controlled substance analogs, exhibited to a severe degree, and to believe that the child expectant mother is refusing or has refused to accept any alcohol or other drug abuse services offered to her or is not making or has not made a good faith effort to participate in any alcohol or other drug abuse services offered to her. The

SB284-SSA1,7,24 (bm) An extension under par. (b) may be granted only once for any petition. In the event of failure to file a petition within the extension period provided for in this paragraph par. (b), the judge or circuit court commissioner shall order the child's immediate release from custody.

SB284-SSA1, s. 4 Section 4. 48.21 (1) (b) 1. of the statutes is created to read:

SB284-SSA1,8,2 48.21 (1) (b) 1. That additional time is required to determine whether the filing of a petition initiating proceedings under this chapter is necessary.

SB284-SSA1, s. 5 Section 5. 48.371 (1) (intro.) of the statutes is amended to read:

SB284-SSA1,8,13 48.371 (1) (intro.) If a child is placed in a foster home, treatment foster home, group home, or residential care center for children and youth or in the home of a relative other than a parent, including a placement under s. 48.205 or 48.21, the agency, as defined in s. 48.38 (1) (a), that placed the child or arranged for the placement of the child shall provide the following information to the foster parent, treatment foster parent, relative, or operator of the group home or residential care center for children and youth at the time of placement or, if the information has not been provided to the agency by that time, as soon as possible after the date on which the agency receives that information, but not more than 2 working days after that date:

SB284-SSA1, s. 6 Section 6. 48.371 (1) (a) of the statutes is amended to read:

SB284-SSA1,8,21 48.371 (1) (a) Results of a test or a series of tests of the child to determine the presence of HIV, as defined in s. 968.38 (1) (b), antigen or nonantigenic products of HIV, or an antibody to HIV, as provided under s. 252.15 (5) (a) 19., including results included in a court report or permanency plan. At the time that the test results are provided, the agency shall notify the foster parent, treatment foster parent, relative, or operator of the group home or residential care center for children and youth of the confidentiality requirements under s. 252.15 (6).

SB284-SSA1, s. 7 Section 7. 48.371 (1) (b) of the statutes is amended to read: