Amendment ASA1-AB30

LRBs0088/4

GMM:jld:jf

2011 - 2012 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2011 ASSEMBLY BILL 30

April 27, 2011 - Offered by Representative Kooyenga.

AB30-ASA1,1,9 An Act to amend 48.60 (2) (a), 48.62 (2), 48.625 (3), 48.63 (2), 48.685 (1) (am), 48.685 (1) (ar), 48.685 (1) (b), 48.685 (1) (bm), 48.685 (2) (am) 5., 48.685 (2) (b) 1. (intro.), 48.685 (2) (b) 1. e., 48.685 (2) (bd), 48.685 (3) (b), 48.685 (4m) (b) (intro.), 48.685 (4m) (c), 48.685 (5) (a), 48.685 (5m), 48.685 (6) (am), 48.981 (2) (a) (intro.), 48.981 (2) (b), 48.981 (2) (bm) 1. (intro.), 48.981 (2) (bm) 2. (intro.) and 48.981 (2m) (title); and to create 48.685 (1) (ag) 1. am., 48.979 and 48.981 (2r) of the statutes; relating to: delegation by a parent who has legal custody of a child of powers regarding the care and custody of the child by a power of attorney and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Current law. Under current law, a parent may petition the court assigned to exercise jurisdiction under the Children's Code (juvenile court) for the appointment of a guardian for the parent's child. A guardian has the duty and authority to make important decisions in matters having a permanent effect on the life and development of the child and the duty to be concerned about the child's general welfare. A guardian's authority includes the authority to consent to major medical, psychiatric, and surgical treatment for the child and the child obtaining a motor vehicle operator's license. A guardian also has the rights and responsibilities of legal custody, which include the right and duty to protect, train, and discipline the child and to provide food, shelter, legal services, education, and ordinary medical and dental care for the child.

Delegation of care and custody of child. This substitute amendment permits a parent who has legal custody of a child, by a power of attorney that is properly executed by all parents who have legal custody of the child, to delegate to another person (agent), for a period not to exceed one year, any of his or her powers regarding the care and custody of the child, except the power to consent to the marriage or adoption of the child, the performance or inducement of an abortion on or for the child, the termination of parental rights to the child, or the enlistment of the child in the U.S. armed forces. The substitute amendment provides that such a delegation of powers does not deprive the parent of any of his or her powers regarding the care and custody of the child and does not prevent or supersede: 1) an investigation of suspected or threatened abuse or neglect of the child under the child abuse and neglect reporting law; 2) the child from being taken into and held in custody under the Children's Code or the Juvenile Justice Code; 3) a juvenile court intake worker from conducting an intake inquiry to determine whether the available facts establish juvenile court jurisdiction over the child; or 4) the juvenile court from exercising its child or juvenile in need of protection or services jurisdiction over the child. The juvenile court's exercising of that jurisdiction, however, does not preclude a delegation of powers that is not in conflict with a juvenile court order granted in the exercise of that jurisdiction.

Background checks. Under current law, certain entities that provide care for children, such as foster homes and group homes, may not employ or contract with a caregiver or permit a nonclient resident to reside at the entity if the caregiver or nonclient resident has been convicted or adjudicated delinquent for committing a serious crime, as defined under current law, or has abused or neglected a child or person receiving care from the person (client), unless the person shows that he or she has been rehabilitated. This substitute amendment requires an organization that facilitates delegations of the care and custody of children to agents as provided in the substitute amendment (organization) to conduct a criminal history and child and client abuse record search with respect to a proposed agent and any nonclient resident of a proposed agent. If that search indicates that the proposed agent or any nonclient resident of the proposed agent has been so convicted or adjudicated or has abused a child or client, the organization may not facilitate a delegation of the care and custody of a child to the proposed agent.

Foster home license exemption. Under current law, a person who provides care and maintenance for four or fewer children must obtain a license to operate a foster home. Current law, however, permits a relative or guardian of a child to provide care and maintenance for a child without obtaining a license to operate a foster home. This substitute amendment exempts an agent from the requirement that the agent obtain a license to operate a foster home in order to provide care and maintenance for the child. The substitute amendment, however, prohibits a parent from placing a child in a foster home, group home, or inpatient treatment facility by means of a delegation of powers as provided in the substitute amendment. Under the substitute amendment, those placements may be made only by means of a juvenile court order or a voluntary agreement or admission as provided under current law.

Permissive child abuse reporting. Under current law, certain persons who have reasonable cause to suspect that a child seen in the course of professional duties has been abused or neglected or who have reason to believe that such a child has been threatened with abuse or neglect and that abuse or neglect will occur must report that suspected or threatened abuse or neglect to the county department of human services or social services, the sheriff, or the local police department. Any other person may report suspected or threatened abuse or neglect of a child. This substitute amendment exempts an agent from the requirement that he or she report any suspected or threatened abuse or neglect of the child. Instead, the substitute amendment permits an agent to report any suspected or threatened abuse or neglect of the child.

Rules. Finally, the substitute amendment requires the Department of Children and Families to promulgate rules establishing certain requirements and expectations with respect to an organization and an agent to whom delegation of the care and custody of a child is facilitated by an organization. Those rules include training requirements for the staff of an organization and an agent, screening and assessment requirements for a proposed agent, the expectations of an agent with respect to the care and custody of the child, and certain monitoring and communication requirements for an organization.

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

AB30-ASA1, s. 1 Section 1. 48.60 (2) (a) of the statutes is amended to read:

AB30-ASA1,3,3 48.60 (2) (a) A relative or, guardian, or person delegated care and custody of a child under s. 48.979 who provides care and maintenance for such children.

AB30-ASA1, s. 2 Section 2. 48.62 (2) of the statutes is amended to read:

AB30-ASA1,4,10 48.62 (2) A relative or, a guardian of a child, or a person delegated care and custody of a child under s. 48.979 who provides care and maintenance for the 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 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 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 48.978, ch. 54, or ch. 880, 2003 stats., license the guardian's home as a 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 48.978, ch. 54, or ch. 880, 2003 stats., who are licensed to operate foster homes are subject to the department's licensing rules.

AB30-ASA1, s. 3 Section 3. 48.625 (3) of the statutes is amended to read:

AB30-ASA1,4,14 48.625 (3) This section does not apply to a foster home licensed under s. 48.62 (1) or to a relative or guardian of a child or a person delegated care and custody of a child under s. 48.979 who provides care and maintenance for the child.

AB30-ASA1, s. 4 Section 4. 48.63 (2) of the statutes is amended to read:

AB30-ASA1,4,20 48.63 (2) No person may place a child or offer or hold himself or herself out as able to place a child, except as provided in this section. Enrollment of a child by a parent or guardian in an educational institution shall and delegation of care and custody of a child to an agent under s. 48.979 do not constitute a placement for the purposes of this section.

AB30-ASA1, s. 5 Section 5. 48.685 (1) (ag) 1. am. of the statutes is created to read:

AB30-ASA1,4,23 48.685 (1) (ag) 1. am. A person to whom delegation of the care and custody of a child under s. 48.979 has been, or is expected to be, facilitated by an entity.

AB30-ASA1, s. 6 Section 6. 48.685 (1) (am) of the statutes is amended to read:

AB30-ASA1,5,2 48.685 (1) (am) "Client" means a child who receives direct care or treatment services from an entity or from a caregiver specified in par. (ag) 1. am.

AB30-ASA1, s. 7 Section 7. 48.685 (1) (ar) of the statutes is amended to read:

AB30-ASA1,5,8 48.685 (1) (ar) "Contractor" means, with respect to an entity, a person, or that person's agent, who provides services to the entity under an express or implied contract or subcontract, including a person who has staff privileges at the entity and a person to whom delegation of the care and custody of a child under s. 48.979 has been facilitated by the entity.

AB30-ASA1, s. 8 Section 8. 48.685 (1) (b) of the statutes is amended to read:

AB30-ASA1,5,18 48.685 (1) (b) "Entity" means a child welfare agency that is licensed under s. 48.60 to provide care and maintenance for children, to place children for adoption, or to license foster homes; a foster home that is licensed under s. 48.62; a group home that is licensed under s. 48.625; a shelter care facility that is licensed under s. 938.22; a child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14); a child care provider that is certified under s. 48.651; an organization that facilitates delegations of the care and custody of children under s. 48.979; or a temporary employment agency that provides caregivers to another entity.

AB30-ASA1, s. 9 Section 9. 48.685 (1) (bm) of the statutes is amended to read:

AB30-ASA1,5,23 48.685 (1) (bm) "Nonclient resident" means a person who resides, or is expected to reside, at an entity or with a caregiver specified in par. (ag) 1. am., who is not a client of the entity or caregiver, and who has, or is expected to have, regular, direct contact with clients of the entity or caregiver.

AB30-ASA1, s. 10 Section 10. 48.685 (2) (am) 5. of the statutes is amended to read:

AB30-ASA1,6,13 48.685 (2) (am) 5. Information maintained by the department of health services under this section and under ss. 48.651 (2m), 48.75 (1m), 48.979 (1) (b), and 120.13 (14) regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate an entity for a reason specified in sub. (4m) (a) 1. to 5. and regarding any denial to the person of employment at, a contract with, or permission to reside at an entity or of permission to reside with a caregiver specified in sub. (1) (ag) 1. am. for a reason specified in sub. (4m) (b) 1. to 5. If the information obtained under this subdivision indicates that the person has been denied a license, continuation or renewal of a license, certification, a contract, employment, or permission to reside as described in this subdivision, the department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board need not obtain the information specified in subds. 1. to 4.

AB30-ASA1, s. 11 Section 11. 48.685 (2) (b) 1. (intro.) of the statutes is amended to read:

AB30-ASA1,6,18 48.685 (2) (b) 1. (intro.) Every entity shall obtain all of the following with respect to a caregiver specified in sub. (1) (ag) 1. a. or am. of the entity and with respect to a nonclient resident of a caregiver specified in sub. (1) (ag) 1. am. of the entity:

AB30-ASA1, s. 12 Section 12. 48.685 (2) (b) 1. e. of the statutes is amended to read:

AB30-ASA1,7,5 48.685 (2) (b) 1. e. Information maintained by the department of health services under this section and under ss. 48.651 (2m), 48.75 (1m), 48.979 (1) (b), and 120.13 (14) regarding any denial to the person of a license, continuation or renewal of a license, certification, or a contract to operate an entity for a reason specified in sub. (4m) (a) 1. to 5. and regarding any denial to the person of employment at, a contract with, or permission to reside at an entity or of permission to reside with a caregiver specified in sub. (1) (ag) 1. am. for a reason specified in sub. (4m) (b) 1. to 5. If the information obtained under this subd. 1. e. indicates that the person has been denied a license, continuation or renewal of a license, certification, a contract, employment, or permission to reside as described in this subd. 1. e., the entity need not obtain the information specified in subd. 1. a. to d.

AB30-ASA1, s. 13 Section 13. 48.685 (2) (bd) of the statutes is amended to read:

AB30-ASA1,7,23 48.685 (2) (bd) Notwithstanding pars. (am) and (b) 1., the department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board is not required to obtain the information specified in par. (am) 1. to 5., and an entity is not required to obtain the information specified in par. (b) 1. a. to e., with respect to a person under 18 years of age whose background information form under sub. (6) (am) indicates that the person is not ineligible to be employed at, contracted with, or permitted to reside at an entity or permitted to reside with a caregiver specified under sub. (1) (ag) 1. am. of the entity for a reason specified in sub. (4m) (b) 1. to 5. and with respect to whom the department, county department, contracted agency, child welfare agency, school board, or entity otherwise has no reason to believe that the person is ineligible to be employed, contracted with, or permitted to reside at an entity for any of those reasons. This paragraph does not preclude the department, a county department, an agency contracted with under s. 48.651 (2), a child welfare agency, or a school board from obtaining, at its discretion, the information specified in par. (am) 1. to 5. with respect to a person described in this paragraph who is a nonclient resident or a prospective nonclient resident of an entity.

AB30-ASA1, s. 14 Section 14. 48.685 (3) (b) of the statutes is amended to read:

AB30-ASA1,8,5 48.685 (3) (b) Subject to par. (bm), every 4 years or at any time within that period that an entity considers appropriate, the entity shall request the information specified in sub. (2) (b) 1. a. to e. for all persons who are caregivers specified in sub. (1) (ag) 1. a. or am. of the entity and for all nonclient residents of a caregiver specified in sub. (1) (ag) 1. am. of the entity. child child

AB30-ASA1, s. 15 Section 15. 48.685 (4m) (b) (intro.) of the statutes is amended to read:

AB30-ASA1,8,11 48.685 (4m) (b) (intro.) Notwithstanding s. 111.335, and except as provided in sub. (5), an entity may not employ or contract with a caregiver specified in sub. (1) (ag) 1. a. or am. or permit a nonclient resident to reside at the entity or with a caregiver specified in sub. (1) (ag) 1. am. of the entity if the entity knows or should have known any of the following:

AB30-ASA1, s. 16 Section 16. 48.685 (4m) (c) of the statutes is amended to read:

AB30-ASA1,9,2 48.685 (4m) (c) If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be employed or contracted with for a reason specified in par. (b) 1. to 5., an entity may employ or contract with the person for not more than 60 days pending the receipt of the information sought under sub. (2) (am) 1. to 5. or (b) 1. If the background information form completed by a person under sub. (6) (am) indicates that the person is not ineligible to be permitted to reside at an entity or with a caregiver specified in sub. (1) (ag) 1. am. for a reason specified in par. (b) 1. to 5. and if an entity otherwise has no reason to believe that the person is ineligible to be permitted to reside at an entity or with that caregiver for any of those reasons, the entity may permit the person to reside at the entity or with the caregiver for not more than 60 days pending receipt of the information sought under sub. (2) (am) or (b) 1. An entity shall provide supervision for a person who is employed, contracted with, or permitted to reside as permitted under this paragraph.

AB30-ASA1, s. 17 Section 17. 48.685 (5) (a) of the statutes is amended to read:

AB30-ASA1,9,19 48.685 (5) (a) Subject to pars. (bm) and (br), the department may license to operate an entity, the department in a county having a population of 500,000 or more, a county department, or an agency contracted with under s. 48.651 (2) may certify under s. 48.651, a county department or a child welfare agency may license under s. 48.62, and a school board may contract with under s. 120.13 (14) a person who otherwise may not be licensed, certified, or contracted with for a reason specified in sub. (4m) (a) 1. to 5., and an entity may employ, contract with, or permit to reside at the entity or permit to reside with a caregiver specified in sub. (1) (ag) 1. am. of the entity a person who otherwise may not be employed, contracted with, or permitted to reside at the entity or with that caregiver for a reason specified in sub. (4m) (b) 1. to 5., if the person demonstrates to the department, the county department, the contracted agency, the child welfare agency, or the school board or, in the case of an entity that is located within the boundaries of a reservation, to the person or body designated by the Indian tribe under sub. (5d) (a) 3., by clear and convincing evidence and in accordance with procedures established by the department by rule or by the tribe that he or she has been rehabilitated.

AB30-ASA1, s. 18 Section 18. 48.685 (5m) of the statutes is amended to read:

AB30-ASA1,9,25 48.685 (5m) Notwithstanding s. 111.335, the department may refuse to license a person to operate an entity, a county department or a child welfare agency may refuse to license a foster home under s. 48.62, and an entity may refuse to employ or contract with a caregiver or permit a nonclient resident to reside at the entity or with a caregiver specified in sub. (1) (ag) 1. am. of the entity if the person has been convicted of an offense that is not a serious crime, but that is, in the estimation of the department, county department, child welfare agency, or entity, substantially related to the care of a client. Notwithstanding s. 111.335, the department may refuse to license a person to operate a child care center, the department in a county having a population of 500,000 or more, a county department, or an agency contracted with under s. 48.651 (2) may refuse to certify a child care provider under s. 48.651, a school board may refuse to contract with a person under s. 120.13 (14), and a child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or a child care provider that is certified under s. 48.651 may refuse to employ or contract with a caregiver or permit a nonclient resident to reside at the child care center or child care provider if the person has been convicted of or adjudicated delinquent on or after his or her 12th birthday for an offense that is not a serious crime, but that is, in the estimation of the department, county department, contracted agency, school board, child care center, or child care provider, substantially related to the care of a client.

AB30-ASA1, s. 19 Section 19. 48.685 (6) (am) of the statutes is amended to read:

AB30-ASA1,10,25 48.685 (6) (am) Except as provided in this paragraph, every 4 years an entity shall require all of its caregivers and all nonclient residents of the entity or of a caregiver specified in sub. (1) (ag) 1. am. of the entity to complete a background information form that is provided to the entity by the department. Every year a day child care center that is licensed under s. 48.65 or established or contracted for under s. 120.13 (14) or a day child care provider that is certified under s. 48.651 shall require all of its caregivers and nonclient residents to complete a background information form that is provided to the day child care center or day child care provider by the department.

AB30-ASA1, s. 20 Section 20. 48.979 of the statutes is created to read:

AB30-ASA1,11,10 48.979 Delegation of power by parent. (1) (a) A parent who has legal custody of a child, by a power of attorney that is properly executed by all parents who have legal custody of the child, may delegate to an agent, for a period not to exceed one year, any of his or her powers regarding the care and custody of the child, except the power to consent to the marriage or adoption of the child, the performance or inducement of an abortion on or for the child, the termination of parental rights to the child, or the enlistment of the child in the U.S. armed forces. A delegation of powers under this paragraph does not deprive the parent of any of his or her powers regarding the care and custody of the child.

AB30-ASA1,11,21 (b) If a delegation of powers to an agent under par. (a) is facilitated by an entity, as defined in s. 48.685 (1) (b), that entity shall obtain the information specified in s. 48.685 (2) (b) 1. with respect to the proposed agent and any nonclient resident, as defined in s. 48.685 (1) (bm), of the proposed agent. Subject to s. 48.685 (5), if that information indicates that the proposed agent may not be a contractor, as defined in s. 48.685 (1) (ar), of the entity or that a nonclient resident of the proposed agent may not be permitted to reside with the proposed agent for a reason specified in s. 48.685 (4m) (b) 1. to 5., the entity may not facilitate a delegation of powers to the proposed agent under par. (a). The entity shall provide the department of health services with information about each person who is denied a delegation of powers or permission to reside under this paragraph for a reason specified in s. 48.685 (4m) (b) 1. to 5.

AB30-ASA1,11,25 (c) A parent who has legal custody of a child may not place the child in a foster home, group home, or inpatient treatment facility by means of a delegation of powers under par. (a). Those placements may be made only by means of a court order or as provided in s. 48.63 or 51.13.

AB30-ASA1,12,2 (d) A delegation of powers under par. (a) does not prevent or supersede any of the following:

AB30-ASA1,12,4 1. An agency, a sheriff, or a police department from receiving and investigating a report of suspected or threatened abuse or neglect of the child under s. 48.981.

AB30-ASA1,12,6 2. The child from being taken into and held in custody under ss. 48.19 to 48.21 or 938.19 to 938.21.

AB30-ASA1,12,7 3. An intake worker from conducting an intake inquiry under s. 48.24 or 938.24.

AB30-ASA1,12,10 4. A court from exercising jurisdiction over the child under s. 48.13 or 938.13. This subdivision does not preclude a delegation of powers under par. (a) that is not in conflict with a court order granted in the exercise of that jurisdiction.

AB30-ASA1,12,15 (e) A parent who has delegated his or her powers regarding the care and custody of a child under par. (a) may revoke that delegation at any time by executing a written revocation and notifying the agent in writing of the revocation. A written revocation invalidates the delegation of powers except with respect to acts already taken in reliance on the delegation of powers.

AB30-ASA1,12,17 (2) A power of attorney complies with sub. (1) (a) if the power of attorney substantially conforms to the following form:

AB30-ASA1,12,18 power of attorney

AB30-ASA1,12,19 delegating parental power

AB30-ASA1,12,20 Authorized by s. 48.979, Wis. Stats.

AB30-ASA1,12,21 NAME(S) OF CHILD(REN)

AB30-ASA1,12,23 This power of attorney is for the purpose of providing for the care and custody of:

AB30-ASA1,12,24 Name, address, and date of birth of child ....

AB30-ASA1,12,25 Name, address, and date of birth of child ....

AB30-ASA1,13,1 Name, address, and date of birth of child ....

AB30-ASA1,13,2 DELEGATION OF POWER TO AGENT

AB30-ASA1,13,4 I, .... (name and address of parent), state that I have legal custody of the child(ren) named above. (Only a parent who has legal custody may use this form.)

AB30-ASA1,13,5 I delegate my parental power to:

AB30-ASA1,13,6 Name of agent ....