SB501: Bill Text

SB501, s. 97 Section 97. 48.427 (1m) of the statutes is created to read:

SB501,78,5 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.

SB501, s. 98 Section 98. 48.427 (3) (intro.) of the statutes is renumbered 48.427 (3) and amended to read:

SB501,78,9 48.427 (3) The court may enter an order terminating the parental rights of one or both parents.

SB501,78,11 (3m) If the rights of both parents or of the only living parent are terminated and if a guardian has not been appointed under s. 48.977, the court shall either:

SB501, s. 99 Section 99. 48.427 (3p) of the statutes is created to read:

SB501,78,15 48.427 (3p) If the rights of both parents or of the only living parent are terminated and if a guardian has been appointed under s. 48.977, the court may enter one of the orders specified in sub. (3m).

Note: With respect to cases in which a juvenile court enters an order terminating the parental rights of one or both parents and the child is left without a parent: (a) provides that if a guardian has not been appointed for a child under s. 48.977, stats., as created by this bill, the court is required to enter one of the dispositions regarding transfer of guardianship and custody of the child as set forth in current statutes; and (b) provides that if a guardian has been appointed for a child under s. 48.977, stats., as created by this bill, the juvenile court may enter one of those dispositions.

SB501, s. 100 Section 100. 48.428 (2) of the statutes is renumbered 48.428 (2) (a) and amended to read:

SB501,79,6 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).

SB501, s. 101 Section 101. 48.428 (2) (b) of the statutes is created to read:

SB501,79,16 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).

Note: These Sections amend s. 48.428 (2), stats., relating to the authority of the juvenile court to place a child in sustaining care, to do all of the following:

1. Renumber s. 48.428 (2), stats., to s. 48.428 (2) (a), stats., and create s. 48.428 (2) (b), stats.

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

3. Create an exception to the mandatory transfer of legal custody and guardianship when a sustaining care order is entered [s. 48.428 (2) (a), stats., as renumbered in the bill] to provide that, if a guardian has been appointed for the child under s. 48.977 (2), stats., as created by this bill, such a transfer of legal custody and guardianship is permissive.

SB501, s. 102 Section 102. 48.43 (1) (a) of the statutes is amended to read:

SB501,80,2 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.

SB501, s. 103 Section 103. 48.43 (4) of the statutes is amended to read:

SB501,80,10 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.

SB501, s. 104 Section 104. 48.43 (5) (b) of the statutes is amended to read:

SB501,80,18 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.

SB501, s. 105 Section 105. 48.43 (5) (c) of the statutes is amended to read:

SB501,81,10 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.

SB501, s. 106 Section 106. 48.46 (2) of the statutes is amended to read:

SB501,82,2 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), in which case the motion shall be filed within the time permitted by s. 809.30 (2) (h). 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.

Note: Provides that a parent who has consented to a TPR or who did not contest a TPR, may move the juvenile court for relief from the judgment granting TPR on such grounds as fraud, mistake or newly discovered evidence within 30, rather than 40, days after the entry of the TPR judgment or order.

SB501, s. 107 Section 107. 48.62 (2) of the statutes is amended to read:

SB501,82,18 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.

SB501, s. 108 Section 108. 48.831 (title) of the statutes is amended to read:

SB501,83,3 48.831 (title) Appointment of guardian for child without a living parent for adoptability finding.

SB501, s. 109 Section 109. 48.831 (1) of the statutes is amended to read:

SB501,83,11 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.

SB501, s. 110 Section 110. 48.977 of the statutes is created to read:

SB501,83,15 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.

SB501,83,18 (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:

SB501,84,5 (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.

SB501,84,9 (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.

SB501,84,12 (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.

SB501,84,14 (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.

SB501,84,17 (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.

SB501,84,23 (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.

SB501,85,4 (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 home or treatment foster home placement for purposes of s. 48.368 (2).

Note: Permits a juvenile court to designate the child's placement with a guardian appointed under new s. 48.977 (2), stats., as the child's permanent foster home or treatment foster home placement for the purpose of making an exception in s. 48.368 (2), stats., as created by this bill, to the provision in s. 48.355 (4) (a), stats., that CHIPS dispositional orders, revisions of dispositional orders and extensions of dispositional orders terminate at the end of one year unless the juvenile court specifies a shorter time period.

SB501,86,3 (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):

SB501,86,4 1. The child or the child's guardian or legal custodian.

SB501,86,5 2. The child's guardian ad litem.

SB501,86,6 3. The child's parent.

SB501,86,8 4. The relative with whom the child is placed if the relative is nominated as the guardian of the child in the petition.

SB501,86,9 5. The department.

SB501,86,10 6. A county department.

SB501,86,12 7. A licensed child welfare agency that has been assigned primary responsibility for providing services to the child under a court order.

SB501,86,13 8. The person representing the interests of the public under s. 48.09.

SB501,86,17 (b) Contents of petition. A proceeding for the appointment of a guardian for a child under sub. (2) shall be initiated by a petition which shall be entitled "In the interest of .... (child's name), a person under the age of 18" and shall set forth all of the following with specificity:

SB501,86,18 1. The name, birth date and address of the child.

SB501,86,20 2. The names and addresses of the child's parent or parents, guardian and legal custodian.

SB501,87,2 3. The date the child was adjudged 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 the dates that the child has 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.

SB501,87,4 4. A statement of the facts and circumstances which the petition alleges establish that the conditions specified in sub. (2) (b) to (f) are met.

SB501,87,6 5. A statement of whether the proceedings are subject to the uniform child custody jurisdiction act under ch. 822.

SB501,87,8 6. A statement of whether the child may be subject to the federal Indian child welfare act, 25 USC 1911 to 1963.

SB501,87,11 (c) Service of petition and notice. 1. The petitioner shall cause the petition and notice of the time and place of the hearing under par. (d) to be served upon all of the following persons:

SB501,87,12 a. The child if the child is 12 years of age or older.

SB501,87,13 b. The child's guardian and legal custodian.

SB501,87,14 c. The child's guardian ad litem.

SB501,87,15 d. The child's counsel.

SB501,87,16 e. The child's parent.

SB501,87,17 f. The persons to whom notice is required to be given under s. 48.27 (3) (b) 1.

SB501,87,19 g. The relative with whom the child is placed if the relative is nominated as the guardian of the child in the petition.

SB501,87,20 h. The person representing the interests of the public under s. 48.09.

SB501,87,22 i. The agency primarily responsible for providing services to the child under a court order.

SB501,88,4 2. Service shall be made by 1st class mail at least 7 days before the hearing or by personal service at least 7 days before the hearing or, if with reasonable diligence a party specified in subd. 1. cannot be served by mail or personal service, service shall be made by publication of a notice published as a class 1 notice under ch. 985. In determining which newspaper is likely to give notice as required under s. 985.02 (1), the petitioner shall consider the residence of the party, if known, or the residence of the relatives of the party, if known, or the last-known location of the party.

SB501,88,8 (d) Fact-finding hearing. The court shall hold a fact-finding hearing on the petition within 30 days after the petition is filed, at which any party may present evidence relevant to the issue of whether the conditions specified in sub. (2) (a) to (f) have been met.

SB501,88,14 (e) Court report. The court shall order the person or agency primarily responsible for providing services to the child under a court order to file with the court a report containing the written summary under s. 48.38 (5) (e) and as much information relating to the appointment of a guardian as is reasonably ascertainable. The agency shall file the report at least 48 hours before the date of the dispositional hearing under par. (f).

SB501,88,19 (f) Dispositional hearing. If the court, at the conclusion of the fact-finding hearing, finds by clear and convincing evidence that the conditions specified in sub. (2) (a) to (f) have been met, the court shall immediately proceed to a dispositional hearing unless an adjournment is requested. Any party may present evidence, including expert testimony, relevant to the disposition.

SB501,88,24 (g) Dispositional factors. In determining the appropriate disposition under this section, the best interests of the child shall be the prevailing factor to be considered by the court. In making a decision about the appropriate disposition, the court shall consider any report submitted under par. (e) and shall consider, but not be limited to, all of the following: