AB602: Bill Text

LRB-3548/2

GMM:jlg&kmg:hmh

1997 - 1998 LEGISLATURE

1997 Assembly BILL 602

November 11, 1997 - Introduced by Joint Legislative Council. Referred to Committee on Children and Families.

AB602,1,10 An Act to amend 48.57 (3m) (am) 4m., 48.57 (3m) (cm), 48.57 (3n) (am) (intro.), 48.57 (3p) (a), 48.57 (3p) (b) 1., 48.57 (3p) (c) 1., 48.57 (3p) (c) 3., 48.57 (3t), 49.155 (1m) (a) (intro.), 49.22 (6), 49.22 (7m), 49.23 (1), 49.23 (2) (a) 1., 49.46 (1) (a) 5., 49.46 (1) (a) 16., 49.96, 767.045 (1) (c) 1., 767.075 (1) (c) and (cm), 767.077 (intro.), 767.078 (1) (a) 2., 767.29 (1m) (c), 767.29 (2), 767.29 (4), 767.32 (1) (a) and 767.47 (6); to repeal and recreate 20.435 (3) (cz), 20.435 (3) (kc) and 20.435 (3) (kd); and to create 48.57 (3m) (am) 5m., 48.57 (3n), 48.57 (3p) (b) 3., 48.57 (3p) (c) 2m., 48.57 (3p) (fm) 1m., 48.57 (3p) (fm) 2m., 48.57 (3p) (h) and 767.29 (1m) (cm) of the statutes; relating to: kinship care, creating a long-term kinship care program and making appropriations.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the joint legislative council in the bill.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

Prefatory note: This bill was prepared for the joint legislative council's special committee on adoption laws.

CURRENT KINSHIP CARE PROGRAM

Definition of a Kinship Care Relative; Payment Amount. 1995 Wisconsin Act 289 created a kinship care program under which kinship care payments of $215 per month must be made to a "kinship care relative" of a dependent child under certain circumstances. A "kinship care relative" is "a stepparent, brother, sister, stepbrother, stepsister, first cousin, nephew, niece, aunt, uncle or any person of a preceding generation as denoted by the prefix of grand, great or great-great, whether by consanguinity, direct affinity or legal adoption, or the spouse or any [such person], even if the marriage is terminated by death or divorce" [s. 48.57, stats.].

Required Conditions for Receipt of Payments. Under current law, kinship care payments may be made only if all of the following conditions are met:

"1. The kinship care relative applies to the county department [of human services or county department of social services (county department)] for [kinship care payments] and the county department determines that there is a need for the child to be placed with the kinship care relative and that the placement with the kinship care relative is in the best interests of the child.

2. The county department determines that the child meets one or more of the criteria specified in s. 48.13 [child in need of protection or services (CHIPS) jurisdictional criteria] or 938.13 [juvenile in need of protection or services (JIPS) jurisdictional criteria] or that the child would be at risk of meeting one or more of those criteria if the child were to remain in his or her home.

4. The county department conducts a [criminal] background investigation under [s. 48.57] (3p) of the kinship care relative, the employes and prospective employes of the kinship care relative who have or would have regular contact with the child for whom the payments would be made and any other adult resident of the kinship care relative's home to determine if the kinship care relative or adult resident has any arrests or convictions that could adversely affect the child or the kinship care relative's ability to care for the child.

4m. Subject to [s. 48.57] (3p) (fm), the kinship care relative states that he or she does not have any arrests or convictions that could adversely affect the child or the kinship care relative's ability to care for the child and that no adult resident, as defined in [s. 48.57] (3p) (a), and no employe or prospective employe of the kinship care relative who would have regular contact with the child has any arrests or convictions that could adversely affect the child or the kinship care relative's ability to care for the child.

5. The kinship care relative cooperates with the county department in the application process, including applying for other forms of assistance for which the kinship care relative may be eligible." [s. 48.57 (3m) (am) 1. to 5., stats.].

Annual Review. Under current law, the county department must review the placement of a child for whom kinship care payments are being made at least every 12 months to determine whether the required conditions described above continue to exist [s. 48.57 (3m) (d), stats.].

Criminal Record. As discussed above, the county department must conduct a criminal background investigation of the kinship care relative, the employes and prospective employes of the kinship care relative who have or would have regular contact with the child for whom the payments would be made and any other adult resident of the kinship care relative's home to determine if the kinship care relative or adult resident has any arrests or convictions that could adversely affect the child or the kinship care relative's ability to care for the child.

Kinship care payments may not be made if any of the following persons have been convicted of certain crimes which are specified in s. 48.57 (3p) (g) 1. to 3., stats.: 1) a person applying for kinship care payments; 2) a person permitted to be an adult resident in the home of a kinship care relative; or 3) a person employed by the kinship care relative in a position in which that employe would have regular contact with the child [s. 48.57 (3p), stats.].

Assignment of Child Support. If kinship care payments are made with respect to a child, the county department must refer the name of the child's parent or parents to the attorney responsible for support enforcement (IV-D attorney). When any kinship care relative applies for or receives kinship care payments, any right of the child or the child's parent to support or maintenance from any other person, including any right to unpaid amounts accrued at the time of application and any right to amounts accruing during the time that kinship care payments are made, is assigned to the state. If a child is the beneficiary of support under a judgment or order that includes support for one or more children for whom kinship care payments are not being made, the assignment is for the amount that is the proportionate share of the child for whom kinship care payments are being made, except as otherwise ordered by the court on the motion of a party. In addition, the county department must require the parent or parents of the child for whom kinship care payments are being made to either initiate or continue health insurance coverage for the child. The department of health and family services (DHFS) must determine whether the child is eligible for medical assistance (MA).

Administration and Appropriations. Under current law, county departments are responsible for making kinship care payments. Also, under current law, DHFS may enter into an agreement with the governing body of a federally recognized American Indian tribe (Indian tribe) to administer the kinship care program within the boundaries of its reservation [s. 48.57 (3t), stats.]. This bill permits DHFS to enter into an agreement with the governing body of a federally recognized American Indian band (Indian band) to administer the kinship care program within the boundaries of its reservation.

Under current law, DHFS must reimburse counties for kinship care payments from its community aids appropriations. (The 1997-99 biennial budget bill (1997 Assembly Bill 100)) proposes that DHFS reimburse counties for kinship care payments from an appropriation for foster care, kinship care and aid to minor custodial parents and from an appropriation for interagency and intra-agency aids specific to kinship care which has money transferred to it from the federal block grant under the federal temporary assistance to needy families (TANF) program.)

LONG-TERM KINSHIP CARE PROGRAM

This bill creates a long-term kinship care program that is similar to the current kinship care program. The significant differences in the programs are noted below following the description of each component of the long-term kinship care program, under the heading "Comparison". The components of the long-term kinship care program are as follows:

Definition of a Long-Term Kinship Care Relative; Payment Amount. The definition of a "long-term kinship care relative" includes the same relatives of a child that are included in the definition of a "kinship care relative".

Monthly long-term kinship care payments are to be made at the same rate as the kinship care rate, which is currently set at $215 per month.

Required Conditions for Receipt of Payments. Long-term kinship care payments may be made only if all of the following conditions are met:

1. The long-term kinship care relative applies to the county department for long-term kinship care payments and provides proof that he or she has been appointed as the guardian of the child under s. 48.977 (2), stats.

Under current law, a relative may be appointed as a child's guardian under s. 48.977 (2), stats., only if the court assigned to exercise jurisdiction under chs. 48 and 938 (juvenile court) finds all of the following: a) that the child has been adjudged CHIPS (other than CHIPS on the basis of not being immunized) or has been adjudged JIPS under s. 938.13 (4), stats., (the juvenile's parent or guardian has requested JIPS jurisdiction and is unable or needs assistance to control the juvenile) and has been placed, or continued in a placement, outside of his or her home pursuant to one or more court orders under a CHIPS or JIPS dispositional order, a CHIPS or JIPS change in placement order, a CHIPS or JIPS revision order or a CHIPS or JIPS extension order for a cumulative total period of one year or longer; b) that the person nominated as the guardian of the child is a relative of the child with whom the child has been placed and that it is likely that the child will continue to be placed with that relative for an extended period of time or until the child attains the age of 18 years; c) that, if appointed, it is likely that the relative would be willing and able to serve as the child's guardian for an extended period of time or until the child attains the age of 18 years; d) that it is not in the best interests of the child that a petition to terminate parental rights be filed with respect to the child; e) that the child's parent is neglecting, refusing or unable to carry out the duties of a guardian or, if the child has 2 parents, both parents are neglecting, refusing or unable to carry out the duties of a guardian; and 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.

Comparison: In contrast, kinship care payments may be made if the county department determines, in pertinent part, that the child meets any CHIPS or JIPS jurisdictional criteria or that the child would be at risk of meeting one or more of those criteria if the child were to remain in his or her home. There is no requirement that the kinship care relative be appointed as the child's guardian under s. 48.977, stats.

2. The county department inspects the long-term kinship care relative's home, interviews the long-term kinship care relative and determines that long-term placement with the long-term kinship care relative is in the best interests of the child.

Comparison: In contrast, kinship care payments may be made if the county department determines, in pertinent part, that there is a need for the child to be placed with the kinship care relative and that the placement with the kinship care relative is in the best interests of the child. There is no statutory requirement that an inspection of the kinship care relative's home be made or that an interview with the kinship care relative be conducted.

3. The county department conducts a criminal background investigation under s. 48.57 (3p), stats., of the long-term kinship care relative, the employes and prospective employes of the long-term kinship care relative who have or would have regular contact with the child and any other adult resident of the long-term kinship care relative's home to determine if any of these persons has any arrests or convictions that are likely to adversely affect the child or the long-term kinship care relative's ability to care for the child.

Comparison: The same background investigation is required before kinship care payments may be made, except that the kinship care provision refers to a determination as to whether any arrests or convictions could (rather than are likely to) adversely affect the child or the kinship care relative's ability to care for the child. In addition, current law refers only to a determination regarding the kinship care relative and any adult residents and not to a determination regarding any employes or prospective employes. The 1997-99 biennial budget bill adds employes and prospective employes to this determination.

4. Subject to s. 48.57 (3p) (fm) 1m. and 2m., stats., as created by the bill, which are explained below under "Criminal Record", the long-term kinship care relative states that he or she does not have any arrests or convictions that could adversely affect the child or the long-term kinship care relative's ability to care for the child and that, to the best of the long-term kinship care relative's knowledge, no adult resident, as defined in s. 48.57 (3p) (a), stats., and no employe or prospective employe of the long-term kinship care relative who would have regular contact with the child has any arrests or convictions that could adversely affect the child or the long-term kinship care relative's ability to care for the child.

Comparison: A similar requirement applies to a kinship care relative, although the kinship care provision does not include the limitation that the statement about employes, prospective employes and adult residents is to the best of the kinship care relative's knowledge.

5. The long-term kinship care relative cooperates with the county department in the application process, including applying for other forms of assistance for which the long-term kinship care relative may be eligible.

Comparison: The same requirement applies before kinship care payments are made.

6. The long-term kinship care relative is not receiving kinship care payments with respect to the child.

Comparison: The bill creates a similar requirement for kinship care. Under the bill, a kinship care relative who is receiving kinship care payments with respect to a child may not at the same time also receive long-term kinship care payments with respect to the child. The bill, however, does not preclude a person who is receiving kinship care payments for a child from being reclassified as a long-term kinship care relative for that child to begin receiving long-term kinship care payments instead of kinship care payments for that child.

7. The county department and long-term kinship care relative enter into a written agreement under which the long-term kinship care relative agrees to provide care and maintenance for the child and the county department agrees to make monthly payments to the long-term kinship care relative at the kinship care rate until the earliest of the following: a) the child attains the age of 18 years; b) the child dies; c) the child is placed outside the long-term kinship care relative's home under a court order or under a voluntary agreement under s. 48.63, stats.; d) the child ceases to reside with the long-term kinship care relative; e) the long-term kinship care relative's guardianship under s. 48.977, stats., terminates; or f) the child moves out of the state.

The bill provides that the agreement is subject to the provisions discussed below which prohibit making long-term kinship care payments to a person if the person has any arrest or conviction that the director of the county department determines is likely to adversely affect the child or the person's ability to care for the child or if the person employs an individual in a position in which that individual would have regular contact with the child or permits an individual to be an adult resident if the individual has such a record. Thus, if, for example, a person has no record of conviction at the time long-term kinship care payments are approved and later is convicted of a crime that the director of the county department determines is likely to adversely affect the child or the long-term kinship care relative's ability to care for the child, then long-term kinship care payments must be discontinued.

Subject to the provisions relating to criminal background investigations and to conviction records, a county department must enter into an agreement with a long-term kinship care relative if: a) the required conditions for receipt of payments described in items 1. to 6., above, are met; and b) the long-term kinship care relative has expressed a willingness to enter into the agreement.

Comparison: In contrast, no such agreement must be entered into before kinship care payments are made.

Annual Review. In contrast to the kinship care program, the long-term kinship care program does not require an annual review by the county department to determine whether all prerequisite conditions continue to exist. The bill, however, does require an annual determination by the county department that none of the events relating to the child's status which trigger termination of long-term kinship care payments, as described above, has occurred.