SB501: Bill Text

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:

SB501,88,25 1. Whether the relative would be a suitable guardian of the child.

SB501,89,2 2. The willingness and ability of the relative to serve as the child's guardian for an extended period of time or until the child attains the age of 18 years.

SB501,89,3 3. The wishes of the child.

SB501,89,6 (h) Disposition. After receiving any evidence relating to the disposition, the court shall enter one of the following dispositions within 10 days after the dispositional hearing:

SB501,89,9 1. A disposition dismissing the petition if the court determines that appointment of the relative as the child's guardian is not in the best interests of the child.

SB501,89,13 2. A disposition ordering that the relative with whom the child has been placed be appointed as the child's guardian under sub. (5) (a) or limited guardian under sub. (5) (b), if the court determines that such an appointment is in the best interests of the child.

SB501,89,16 (i) Effect of disposition on permanency plan review process. After a disposition under par. (h), the child's permanency plan shall continue to be reviewed under s. 48.38 (5), if applicable.

Note: Sets forth the procedures applicable to appointment of a relative as a guardian for certain children in need of protection or services, as specified in s. 48.977 (2), stats., as created by this bill, including: (1) who may file the petition; (2) the contents of the petition; (3) service of the petition and notice of the time and place of the fact-finding hearing; (4) requirement to hold a fact-finding hearing; (5) factors to be considered in the disposition; (6) the contents of a report to the juvenile court to be submitted by the person or agency primarily responsible for providing services to the child at least 48 hours prior to the dispositional hearing; (7) the possible dispositions relating to the guardianship petition; and (8) the effect of the disposition on the permanency plan review process [the bill specifies that the plan must continue to be reviewed under s. 48.38 (5), stats., if the child's case continues to be subject to the provisions of s. 48.38, stats., regarding permanency planning].

SB501,89,19 (5) Duties and authority of guardian. (a) Full guardianship. Unless limited under par. (b), a guardian appointed under sub. (2) shall have all of the duties and authority specified in s. 48.023.

SB501,90,7 (b) Limited guardianship. The court may order that the duties and authority of a guardian appointed under sub. (2) be limited. The duties and authority of a limited guardian shall be as specified by the order of appointment under sub. (4) (h) 2. or any revised order under sub. (6). All provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited guardian appointed under sub. (2) to the extent those provisions are relevant to the duties or authority of the limited guardian, except as limited by the order of appointment.

Note: Creates provisions relating to the duties and authority of a guardian and a limited guardian appointed under s. 48.977 (2), stats., as created by this bill. A guardian shall have the duties and authority of a guardian specified in s. 48.023, stats. A limited guardian shall have such duties and authority as specified by the juvenile court's order of appointment or any revised order under s. 48.977 (6), stats., as created by this bill. This subsection specifies that all provisions of the statutes concerning the duties and authority of a guardian shall apply to a limited guardian under s. 48.977 (2), stats., as created by this bill, to the extent those provisions are relevant to the duties or authority of the limited guardian, except as limited by the order of appointment.

SB501,90,16 (6) Revision of guardianship order. (a) Any person authorized to file a petition under sub. (4) (a) may request a revision in a guardianship order entered under this subsection or sub. (4) (h) 2., or the court may, on its own motion, propose such a revision. The request or court proposal shall set forth in detail the nature of the proposed revision, shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the proposed revision would be in the best interests of the child and shall allege any other information that affects the advisability of the court's disposition.

SB501,91,2 (b) The court shall hold a hearing on the matter prior to any revision of the guardianship order if the request or court proposal indicates that new information is available which affects the advisability of the court's guardianship order, unless written waivers of objections to the revision are signed by all parties entitled to receive notice under sub. (4) (c) and the court approves the waivers.

SB501,91,9 (c) If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of the date, place and purpose of the hearing. A copy of the request or proposal shall be attached to the notice. The court may order a revision if, at the hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances and if the court determines that a revision would be in the best interests of the child.

Note: Creates a separate revision of order section applicable to guardianship orders under s. 48.977, stats., as created by this bill. The revision request (or the juvenile court proposal if the juvenile court proposes a revision on its own motion) must set forth in detail the nature of the requested or proposed revision and must allege: (1) facts sufficient to show that there has been a substantial change in circumstances since the last order affecting guardianship was entered; (2) that the revision would be in the best interests of the child; and (3) any other information that affects the advisability of the juvenile court's disposition. The subsection specifies circumstances under which the juvenile court must hold a hearing on the matter, persons to be notified of the date, place and purpose of the hearing and the findings the juvenile court must make before ordering a revision.

SB501,91,14 (7) Termination of guardianship. (a) Term of guardianship. Unless the court order entered under sub. (4) (h) 2. or (6) specifies that a guardianship under this section be for a lesser period of time, a guardianship under this section shall continue until the child attains the age of 18 years or until terminated by the court, whichever occurs earlier.

SB501,92,2 (b) Removal for cause. 1. Any person authorized to file a petition under sub. (4) (a) may request that a guardian appointed under sub. (2) be removed for cause or the court may, on its own motion, propose such a removal. The request or court proposal shall allege facts sufficient to show that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian's trust and may allege facts relating to any other information that affects the advisability of the court's disposition.

SB501,92,5 2. The court shall hold a hearing on the matter unless written waivers of objections to the removal are signed by all parties entitled to receive notice under sub. (4) (c) and the court approves the waivers.

SB501,92,13 3. If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of the date, place and purpose of the hearing. A copy of the request or court proposal shall be attached to the notice. The court shall remove the guardian for cause if, at the hearing, the court finds that it has been proved by clear and convincing evidence that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian's trust and if the court determines that removal of the guardian would be in the best interests of the child.

SB501,92,15 (c) Resignation. A guardian appointed under sub. (2) may resign at any time if the resignation is accepted by the court.

SB501,92,22 (d) Termination on request of parent. 1. A parent of the child may request that a guardianship order entered under sub. (4) (h) 2. or a revised order entered under sub. (6) be terminated. The request shall allege facts sufficient to show that there has been a substantial change in circumstances since the last order affecting the guardianship was entered, that the parent is willing and able to carry out the duties of a guardian and that the proposed termination of guardianship would be in the best interests of the child.

SB501,92,25 2. The court shall hold a hearing on the matter unless written waivers of objections to the termination are signed by all parties entitled to receive notice under sub. (4) (c) and the court approves the waivers.

SB501,93,9 3. If a hearing is to be held, the court shall notify the persons entitled to receive notice under sub. (4) (c) at least 7 days prior to the hearing of the date, place and purpose of the hearing. A copy of the request shall be attached to the notice. The court shall terminate the guardianship if, at the hearing, the court finds that it has been proved by clear and convincing evidence that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and the parent is willing and able to carry out the duties of a guardian and if the court determines that termination of the guardianship would be in the best interests of the child.

Note: Creates a new provision relating to termination of a guardianship ordered by the juvenile court under s. 48.977 (2), stats., as created by this bill, specifying all of the following:

1. That unless the juvenile court orders the guardianship to be for a lesser period of time, the guardianship must continue until the child reaches 18 years of age or until terminated by the juvenile court, whichever occurs earlier.

2. The guardian may be removed for cause on the request of a party entitled to file a petition for guardianship. The request (or the juvenile court's proposal if the juvenile court seeks removal on its own motion) must allege facts sufficient to show that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian's trust. After a hearing on the matter (unless one is not necessary because written waivers of objections to the removal are signed by all parties entitled to receive notice), the juvenile court must remove the guardian for cause if, at the hearing, the juvenile court: (a) finds that the guardian is or has been neglecting, is or has been refusing or is or has been unable to discharge the guardian's trust; and (b) determines that removal of the guardian would be in the best interests of the child.

3. The guardian may resign at any time if the resignation is accepted by the juvenile court.

4. The guardianship may be terminated on the request of the child's parent. The request must allege facts sufficient to show that: (a) there has been a substantial change in circumstances since the last order affecting the guardianship was entered; (b) the parent is willing and able to carry out the duties of a guardian; and (c) the proposed termination of guardianship would be in the best interests of the child. After a hearing on the matter (unless one is not necessary because written waivers of objection to the termination are signed by all parties entitled to receive notice), the juvenile court must terminate the guardianship if, at the hearing, the juvenile court: (a) finds that there has been a substantial change in circumstances since the last order affecting the guardianship was entered and that the parent is willing and able to carry out the duties of a guardian; and (b) determines that termination of the guardianship would be in the best interests of the child.

SB501,93,11 (8) Relationship to ch. 880. (a) This section does not abridge the duties or authority of a guardian appointed under ch. 880.

SB501,94,2 (b) Nothing in this section prohibits an individual from petitioning a court under ch. 880 for appointment of a guardian.

SB501, s. 111 Section 111. 48.981 (1) (a) of the statutes is repealed.

Note: Repeals the definition of "abuse" under s. 48.981, stats. (the child abuse and neglect reporting and investigation statute), to reflect the creation of the definition of "abuse" in the general definitions section of ch. 48 (s. 48.02 (1), stats., as created by this bill).

Under current s. 48.981 (1) (a), stats., "abuse" means any of the following:

1. "Physical injury", as defined in current s. 48.981 (1) (e), stats., inflicted on a child by other than accidental means.

2. Sexual intercourse or sexual contact under s. 940.225, stats. (the general sexual assault statute), 948.02, stats. (sexual assault of a child), or 948.025, stats. (repeated acts of sexual assault against the same child).

3. A violation of s. 948.05, stats. (sexual exploitation of a child).

4. Permitting, allowing or encouraging a child to violate s. 944.30, stats. (prostitution).

5. Emotional damage, as defined in current s. 48.981 (1) (cm), stats.

6. A violation of s. 948.055, stats. (causing a child to view or listen to sexual activity).

The definition of "abuse" in s. 48.02 (1), as created by this bill, is identical to the definition in current s. 48.981 (1) (a), stats., with the following exceptions:

1. The definition of "physical injury", which is a component of the definition of "abuse", is changed by this bill. This bill repeals the definition of "physical injury" in current s. 48.981 (1) (e), stats., and creates a new definition of "physical injury" in s. 48.02 (14m), stats., as created by this bill.

2. The underlying definition of "emotional damage", which is a component of the definition of "abuse", is changed by this bill. The bill repeals the definition of "emotional damage" in current s. 48.981 (1) (cm), stats., and creates a new definition of "emotional damage" in s. 48.02 (5j), stats., as created by this bill.

3. A violation of s. 948.10, stats., (for purposes of sexual arousal or gratification, either causing a child to expose genitals or pubic area or exposing genitals or pubic area to a child) has been added.

SB501, s. 112 Section 112. 48.981 (1) (b) of the statutes is repealed.

Note: Repeals the definition of "child" under s. 48.981, stats., as the term is defined in the same way in the current general definitions section of ch. 48 (s. 48.02 (2), stats.).

SB501, s. 113 Section 113. 48.981 (1) (cm) of the statutes is repealed.

Note: Repeals the definition of "emotional damage" under s. 48.981, stats., to reflect creation of the definition of "emotional damage" in the general definitions section of ch. 48 (s. 48.02 (5j), stats., as created by this bill).

Under current s. 48.981 (1) (cm), stats., "emotional damage" means "...harm to a child's psychological or intellectual functioning which is exhibited by severe anxiety, depression, withdrawal or outward aggressive behavior, or a combination of those behaviors, and for which the child's parent, guardian or legal custodian has failed to obtain the treatment necessary to remedy the harm. "Emotional damage" may be demonstrated by a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development.".

Under s. 48.02 (5j), stats., as created by this bill, "emotional damage" means harm to a child's psychological or intellectual functioning for which the child's parent, guardian or legal custodian has neglected, refused or been unable to obtain the necessary treatment or to take necessary steps to ameliorate the symptoms. Section 48.02 (5j), stats., as created by this bill, further requires that the emotional damage be evidenced by one or more of the following characteristics exhibited to a substantial degree:

1. Anxiety.

2. Depression.

3. Withdrawal.

4. Outward aggressive behavior.

5. Substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development.