AB809: Bill Text

LRB-4375/2

GMM:kg:jf

2001 - 2002 LEGISLATURE

2001 Assembly BILL 809

February 12, 2002 - Introduced by Representative Kestell, cosponsored by Senator Robson. Referred to Committee on Children and Families.

AB809,3,8 An Act to renumber 48.32 (1); to renumber and amend 48.355 (2d) (c), 48.357 (1), 48.357 (2m), 48.357 (2v), 48.365 (2m) (a), 48.38 (4) (a), 48.38 (5) (c) 6. am., 938.355 (2d) (c), 938.357 (1), 938.357 (2m), 938.357 (2v), 938.365 (2m) (a), 938.38 (4) (a) and 938.38 (5) (c) 6. am.; to amend 48.21 (1) (a), 48.21 (3) (am), 48.21 (3) (e), 48.255 (2), 48.27 (3) (a) 1m., 48.33 (4) (intro.), 48.355 (2) (b) 6., 48.355 (2b), 48.355 (2c) (b), 48.355 (2d) (b) (intro.), 48.355 (2d) (b) 1., 48.355 (2d) (b) 2., 48.355 (2d) (b) 3., 48.355 (2d) (b) 4., 48.355 (2d) (b) 5., 48.355 (4), 48.357 (2), 48.357 (2r), 48.357 (6), 48.365 (1), 48.365 (2g) (b) 2., 48.365 (2g) (b) 3., 48.365 (2m) (ag), 48.365 (5), 48.38 (2) (intro.), 48.38 (2) (c), 48.38 (2) (f), 48.38 (3), 48.38 (4) (intro.), 48.38 (4) (bm), 48.38 (4) (e), 48.38 (4) (f) (intro.), 48.38 (4) (fm), 48.38 (5) (a), 48.38 (5) (b), 48.38 (5) (c) 6. (intro.), 48.38 (5) (c) 6. d., 48.38 (5) (c) 7., 48.417 (1) (a), 48.417 (1) (b), 48.417 (1) (c), 48.417 (1) (d), 48.417 (2) (a), 48.417 (2) (b), 48.42 (2g) (am), 48.427 (1m), 48.63 (1), 48.63 (4), 48.685 (5) (bm) 4., 48.78 (2) (a), 48.977 (2) (f), 938.21 (1) (a), 938.21 (2) (am), 938.21 (2) (d), 938.21 (3) (am), 938.21 (3) (e), 938.255 (2), 938.27 (3) (a) 1m., 938.33 (4) (intro.), 938.355 (1), 938.355 (2) (b) 6., 938.355 (2b), 938.355 (2c) (b), 938.355 (2d) (b) (intro.), 938.355 (2d) (b) 1., 938.355 (2d) (b) 2., 938.355 (2d) (b) 3., 938.355 (2d) (b) 4., 938.355 (4) (a), 938.355 (4) (b), 938.355 (6) (a), 938.357 (2), 938.357 (2r), 938.357 (3), 938.357 (4) (b) 2., 938.357 (4) (c) 1., 938.357 (4) (c) 2., 938.357 (4) (d), 938.357 (5) (a), 938.357 (6), 938.365 (1), 938.365 (2g) (b) 2., 938.365 (2g) (b) 3., 938.365 (2m) (ag), 938.365 (5), 938.38 (2) (intro.), 938.38 (2) (c), 938.38 (2) (f), 938.38 (3) (intro.), 938.38 (4) (intro.), 938.38 (4) (bm), 938.38 (4) (e), 938.38 (4) (f) (intro.), 938.38 (4) (fm), 938.38 (5) (a), 938.38 (5) (b), 938.38 (5) (c) 6. (intro.), 938.38 (5) (c) 6. d., 938.38 (5) (c) 7. and 938.78 (2) (a); to repeal and recreate 48.21 (5) (b) 1. and 938.21 (5) (b) 1.; and to create 48.21 (5) (b) 3., 48.21 (5) (c), 48.21 (5) (d), 48.255 (1) (f), 48.255 (1m) (f), 48.315 (2m), 48.32 (1) (b), 48.32 (1) (c), 48.33 (4) (c), 48.335 (3g), 48.355 (2) (b) 6r., 48.355 (2d) (bm), 48.355 (2d) (c) 2. and 3., 48.357 (1) (b) 3., 48.357 (1) (c), 48.357 (2m) (c), 48.357 (2v) (a) (intro.), 48.357 (2v) (a) 1., 48.357 (2v) (a) 3., 48.357 (2v) (b), 48.357 (2v) (c), 48.365 (2m) (a) 2., 48.365 (2m) (a) 3., 48.365 (2m) (ad), 48.38 (4) (ag), 48.38 (4) (am), 48.38 (4) (dg), 48.38 (4) (dm), 48.38 (4) (dr), 48.38 (4) (fg), 48.38 (4) (h), 48.38 (5) (c) 6. cg., 48.38 (5m), 48.417 (2) (d), 938.21 (5) (b) 3., 938.21 (5) (c), 938.21 (5) (d), 938.255 (1) (f), 938.315 (2m), 938.32 (1) (c), 938.32 (1) (d), 938.33 (4) (c), 938.335 (3g), 938.355 (2) (b) 6r., 938.355 (2d) (bm), 938.355 (2d) (c) 2. and 3., 938.355 (6m) (cm), 938.357 (1) (b) 3., 938.357 (1) (c), 938.357 (2m) (c), 938.357 (2v) (a) (intro.), 938.357 (2v) (a) 1., 938.357 (2v) (a) 3., 938.357 (2v) (b), 938.357 (2v) (c), 938.365 (2m) (a) 2., 938.365 (2m) (a) 3., 938.365 (2m) (ad), 938.38 (4) (ag), 938.38 (4) (am), 938.38 (4) (dg), 938.38 (4) (dm), 938.38 (4) (dr), 938.38 (4) (fg), 938.38 (4) (h), 938.38 (5) (c) 6. cg. and 938.38 (5m) of the statutes; relating to: permanency planning for a child placed outside the home, required juvenile court findings when a child is placed outside the home, the expiration date of a juvenile court order placing or continuing the placement of a child outside the home, the requirement that a termination of parental rights petition be filed under certain circumstances, statements by foster parents at juvenile court hearings, and prohibiting a person who has committed an alcohol-related felony within the last 5 years from being licensed to operate a foster home or treatment foster home.

Analysis by the Legislative Reference Bureau

Introduction

Under Title IV-E of the federal Social Security Act (Title IV-E), states that meet certain conditions specified in Title IV-E and the regulations promulgated under Title IV-E are reimbursed for the cost of providing care for children placed in foster homes, treatment foster homes, group homes, child caring institutions, secure detention facilities, or shelter care facilities (out-of-home placements). Recently, the federal department of health and human services promulgated regulations implementing the Adoption and Safe Families Act of 1997 (ASFA), which amended Title IV-E. This bill conforms certain provisions of the Children's Code and the Juvenile Justice Code relating to children placed in out-of-home placements to conform those provisions to ASFA and its implementing regulations.

Permanency planning

Under current law, for each child living in an out-of-home placement, the county department of human services or social services, the licensed child welfare agency, the department of health and family services, in a county having a population of 500,000 or more, or the department of corrections, in the case of a child who has been adjudged delinquent, (collectively "agency") that placed the child or arranged the placement of the child or the agency assigned primary responsibility for providing services to the child must prepare a permanency plan for the child, which is a plan designed to ensure that the child is reunified with his or her family whenever appropriate or that the child quickly attains a placement or home providing long-term stability. A permanency plan must be prepared within 60 days after the date on which the child was first held in physical custody or placed outside the home under an order of the court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court) and must be prepared if the child is being held under a physical custody order of the juvenile court, is under the guardianship, legal custody, or supervision of an agency, is placed under a voluntary agreement between the child's parents and an agency, or meets the requirements for aid under the former aid to families with dependent children program. This bill requires a permanency plan to be prepared for a child living in the home of a relative, other than a parent, who meets any of those requirements. The bill also requires a permanency plan to be prepared within 60 days after a child was first removed from his or her home.

A permanency plan must describe, among other things, the services that were provided to prevent the placement of the child outside the home, the services that have been and will be provided to make it possible for the child to return safely to the home, and the conditions, if any, upon which the child will be returned to the home. This bill requires the permanency plan to include certain additional information including the goal or goals of the permanency plan, with those goals being return of the child to the home or placement of the child for adoption, with a guardian, in the home of a relative, or in some other alternative permanent placement, in that order of preference. If a goal of the permanency plan is any goal other than return of the child to the home, the permanency plan must include the rationale for deciding on that goal and, if the goal of the permanency plan is some other alternative permanent placement, the permanency plan must document a compelling reason for not pursuing return of the child to the home or placement of the child for adoption, with a guardian, or with a relative.

The bill also requires a permanency plan to include a description of the programs and services that are or will be provided to assist a child 15 years of age or over in preparing for the transition from out-of-home care to independent living. In addition, under the bill, if as a result of the child's placement the child has been or will be transferred from his or her school, the permanency plan must include documentation that the placement would be in the child's best interests or that a placement that would maintain the child in his or her school is unavailable or inappropriate. Finally, the bill requires the permanency plan to include the name, address, and telephone number of the child's parent, guardian, and legal custodian, the date on which the child was removed from his or her home and the date on which the child was placed in out-of-home care, and certain educational and medical information relating to the child.

Under current law, the juvenile court or a panel appointed by the juvenile court must review a child's permanency plan every six months to determine, among other things, the continuing necessity for and appropriateness of the placement, the progress being made toward eliminating the causes of the child's placement and returning the child to the home or obtaining a permanent placement for the child, and whether reasonable efforts are being made to make it possible for the child to return to his or her home. This bill requires the juvenile court or panel, in reviewing a child's permanency plan, to determine whether reasonable efforts are being made to achieve the goal of the child's permanency plan, whether the goal is return of the child to the home or placement of the child for adoption, with a guardian, in the home of a relative, or in some other alternative placement.

The bill also requires the juvenile court to hold a hearing to review a child's permanency plan not later than 12 months after the child is removed from the home and every 12 months after that hearing, which hearing may be held instead of or in addition to review required under current law.

Contrary-to-welfare and reasonable-efforts findings

Under current law, a dispositional order of the juvenile court placing a child outside the home must include a finding that continued placement of the child in the home would be contrary to the welfare of the child and a finding as to whether the agency primarily responsible for providing services under a juvenile court order has made reasonable efforts to prevent the removal of the child from the home or, if applicable, a finding as to whether the agency has made reasonable efforts to make it possible for the child to return safely to his or her home. The juvenile court, however, is not required to find that those reasonable efforts have been made with respect to a parent if the juvenile court finds that the parent has committed certain crimes of homicide against a child of the parent; has committed battery, sexual assault, or physical or sexual abuse resulting in great bodily harm or substantial bodily harm to the child or to another child of the parent; has had his or her parental rights terminated with respect to another child; or has subjected the child to aggravated circumstances, which are defined as including criminal abandonment, torture, chronic abuse, and sexual abuse. If the juvenile court finds that any of those circumstances applies to a parent, the juvenile court must hold a hearing within 30 days after the date of that finding to determine the permanency plan for the child.

This bill requires a dispositional order that places a child outside the home to include a finding that the agency has made reasonable efforts to achieve the goal of the child's permanency plan, unless return of the child to the home is the goal of the permanency plan and a circumstance applies to a parent under which reasonable efforts to return the child to the home are not required. If the juvenile court finds that such a circumstance applies to a parent, the dispositional order must include a determination that the agency is not required to make those reasonable efforts with respect to the parent.

In addition, the bill requires the juvenile court to make the same contrary-to-welfare and reasonable-efforts findings that the juvenile court is required to make in a dispositional order placing a child outside the home in a temporary physical custody order holding a child outside the home, a change in placement order changing the placement of a child from an in-home placement to an out-of-home placement, and a consent decree maintaining a child placed outside the home under a voluntary agreement or other living arrangement in that placement or other living arrangement. If the juvenile court finds in the custody order, change in placement order, or consent decree that a circumstance applies to a parent under which reasonable efforts to return the child to the home are not required, the custody order, change in placement order, or consent decree must include a determination that the agency is not required to make those reasonable efforts with respect to the parent and the juvenile court must hold a hearing within 30 days after the date of the finding to determine the permanency plan for the child.

Finally, the bill requires the juvenile court to make the contrary-to-welfare and reasonable-efforts findings on a case-by-case basis based on circumstances specific to the child and to document or reference the specific information on which those findings are based in the custody order, dispositional order, change in placement order, or consent decree and also in an order extending the dispositional order of a child placed outside the home, an order appointing a relative as the guardian of a child in need of protection or services, and a sanction order placing a child in a place of nonsecure custody. The bill further provides that such an order or consent decree that merely references the statutes without documenting or referencing that specific information in the order or consent decree or an amended order or consent decree that retroactively corrects an earlier order or consent decree that does not comply with those requirements is not sufficient to comply with those requirements.

Termination of orders

Under current law, dispositional orders and extension orders of the juvenile court terminate at the end of one year, unless the judge specifies a shorter period of time, except that the judge may make a dispositional order placing a juvenile who has been adjudged delinquent in a Type 2 child caring institution or a secured correctional facility apply for up to two years or until the juvenile's 18th birthday, whichever is earlier, and the judge must make a dispositional order placing a juvenile who has committed a Class B felony in the serious juvenile offender program (SJOP) apply for five years and must make a dispositional order placing a juvenile who has committed a Class A felony in the SJOP apply until the juvenile reaches 25 years of age. Under current law, a change in placement order may not extend the expiration date of the original dispositional order.

Under this bill, a dispositional order, extension order, or change in placement order that places or continues the placement of a child in an out-of-home placement terminates when the child reaches 18 years of age, at the end of one year after its entry, or, if the child is a full-time student at a secondary school or its vocational or technical equivalent and is reasonably expected to complete the program before reaching 19 years of age, when the child reaches 19 years of age, whichever is later, unless the judge specifies a shorter period of time or the judge terminates the order sooner. The bill does not affect the length of a dispositional order or extension order that places or continues the placement of a child in an in-home placement or a dispositional order placing a juvenile in a Type 2 child caring institution, a secured correctional facility, or the SJOP. The bill also requires, in the case of a change in placement from an out-of-home placement to an in-home placement of a child who is subject to an original order the expiration date of which is more than one year after the date of the change in placement order, the juvenile court to shorten the expiration date of the original order to the date that is one year after the date of the change in placement order or to an earlier date as specified by the court.

Time limits

Under current law, certain actions in a proceeding under the Children's Code or the Juvenile Justice Code must take place within certain time limits. If a time limit under the Children's Code is not met, the juvenile court loses competency to exercise its jurisdiction and, therefore, must dismiss the proceeding. Under the Juvenile Justice Code, however, failure to meet a time limit does not deprive the juvenile court of competency to exercise its jurisdiction. Instead, the juvenile court may grant a continuance for good cause shown, dismiss the petition with or without prejudice, release the child from custody, or grant any other relief that the juvenile court considers appropriate. Certain time periods, such as a period of delay resulting from a continuance or an extension granted by the juvenile court, however, are excluded in computing the time requirements under those codes.

This bill prohibits the juvenile court from granting a continuance or an extension of a time limit specified in the Children's Code or the Juvenile Justice Code and from excluding a period of delay in computing a time requirement under those codes if the continuance, extension, or exclusion would result in the juvenile court making an initial finding that reasonable efforts have been made to prevent the removal of a child from his or her home, or an initial finding that those efforts were not required to be made because a circumstance under which those efforts are not required applies, more than 60 days after the date on which the child was removed from the home. The bill also prohibits such a continuance, extension, or exclusion if the continuance, extension, or exclusion would result in the juvenile court making an initial finding that the agency primarily responsible for providing services to the child has made reasonable efforts to achieve the goals of the child's permanency plan more than 12 months after the date on which the child was removed from the home or making any subsequent findings as to those reasonable efforts more than 12 months after the date of a previous finding as to those reasonable efforts. In addition, the bill provides that a failure to meet one of those time limits under the Children's Code does not deprive the juvenile court of competency to exercise its jurisdiction. Instead, the juvenile court may dismiss the petition with or without prejudice, release the child from custody, or grant any other relief that the juvenile court considers appropriate.

Termination of parental rights filing requirements

Under current law, subject to certain exceptions, if a child has been placed in an out-of-home placement for 15 of the most recent 22 months, if a child was abandoned as an infant, or if a child's parent has committed certain crimes of homicide against another child of the parent or has committed battery, sexual assault, or physical or sexual abuse resulting in great bodily harm or substantial bodily harm to the child or to another child of the parent, an agency or the district attorney, corporation counsel, or other appropriate official designated by the county board to prosecute termination of parental rights (TPR) proceedings must file a TPR petition with respect to the child or, if a TPR petition with respect to the child has already been filed, must join in the petition. A person responsible for filing TPR petitions, however, is not required to file or join in a TPR petition with respect to such a child if the child is being cared for by a relative, if a TPR is not in the best interests of the child, or if the agency primarily responsible for providing services to the child and the family is required to make reasonable efforts to make it possible for the child to return safely home and has not provided the services necessary for that safe return.

This bill, for purposes of determining whether a child has been placed outside the home for 15 of the most recent 22 months, excludes any period during which the child was a runaway from the out-of-home placement or the child was returned to his or her home for a trial home visit of six months or less. If the child has been placed outside the home for 15 of the most recent 22 months, as calculated under the bill, the TPR petition must be filed or joined in by the last day of that 15th month. Similarly, if the child was abandoned as an infant, the TPR petition must be filed or joined in within 60 days after a court of competent jurisdiction finds that the child was so abandoned and, if the parent has committed certain crimes of homicide against another child of the parent or has committed battery, sexual assault, or physical or sexual abuse resulting in great bodily harm or substantial bodily harm to the child or to another child of the parent, the TPR petition must be filed or joined in within 60 days after the juvenile court determines, based on a finding that the parent has committed such a serious felony, that reasonable efforts to make it possible for the child to return safely home are not required. The bill provides, however, that the filing or joining of a TPR petition is not required if grounds for an involuntary TPR do not exist.

Foster parent debarment

Under current law, a person who has committed a crime against children that is a felony, felony spousal abuse, or certain felonies involving violence or who has committed, within the past five years, a felony battery or a drug-related felony may not be licensed to operate a foster home or treatment foster home, including a foster home or treatment foster home that is a placement for adoption of a child for whom adoption assistance will be provided after the adoption is finalized. This bill prohibits a person who has committed, within the past five years, certain alcohol-related felonies from being licensed to operate such a foster home or treatment foster home. Those felonies include homicide by intoxicated use of a firearm or vehicle, causing injury by intoxicated use of a vehicle, felony operation of a motor vehicle while intoxicated (fifth offense or with a minor under 16 years of age in the vehicle), causing injury or death by providing alcohol beverages to a minor, providing false proof of age to an underage person for money or other consideration, impersonating an employee of the department of revenue or the department of justice with intent to commit a crime, manufacturing intoxicating liquor without a permit, and using, selling, or otherwise disposing of alcohol redistilled from denatured alcohol.

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:

AB809, s. 1 Section 1. 48.21 (1) (a) of the statutes is amended to read:

AB809,9,13 48.21 (1) (a) If a child who has been taken into custody is not released under s. 48.20, a hearing to determine whether the child shall continue to be held in custody under the criteria of ss. 48.205 to 48.209 shall be conducted by the judge or juvenile court commissioner within 48 hours of the time the decision to hold the child was made, excluding Saturdays, Sundays, and legal holidays. By the time of the hearing a petition under s. 48.25 shall be filed, except that no petition need be filed where a child is taken into custody under s. 48.19 (1) (b) or (d) 2. or 7. or where the child is a runaway from another state, in which case a written statement of the reasons for holding a child in custody shall be substituted if the petition is not filed. If no hearing has been held within 48 hours, excluding Saturdays, Sundays, and legal holidays, or if no petition or statement has been filed at the time of the hearing, the child shall be released except as provided in par. (b). A parent not present at the hearing shall be granted a rehearing upon request unless the parent has waived his or her right to participate in the hearing, in which case the parent shall be granted a rehearing upon request for good cause shown.

AB809, s. 2 Section 2. 48.21 (3) (am) of the statutes is amended to read:

AB809,9,19 48.21 (3) (am) The parent, guardian, or legal custodian may waive his or her right to participate in the hearing under this section. Agreement in writing of the child is required if he or she is over 12. After any waiver, a hearing rehearing shall be granted at the request of any the parent, guardian, legal custodian, or any other interested party for good cause shown.

AB809, s. 3 Section 3. 48.21 (3) (e) of the statutes is amended to read:

AB809,9,25 48.21 (3) (e) If the parent, guardian, or legal custodian or the child is not represented by counsel at the hearing and the child is continued in custody as a result of the hearing, the parent, guardian, legal custodian, or child may request through counsel subsequently appointed or retained or through a guardian ad litem that the order to hold the child in custody be reheard. If the request is made, a rehearing shall take place as soon as possible unless the request is made by a parent, guardian, or legal custodian who has waived his or her right to participate in the hearing, in which case a rehearing shall take place only upon a showing of good cause. Any order to hold the child in custody shall be subject to rehearing for good cause, whether or not counsel was present.

AB809, s. 4 Section 4. 48.21 (5) (b) 1. of the statutes, as affected by 2001 Wisconsin Act 16, is repealed and recreated to read:

AB809,10,20 48.21 (5) (b) 1. A finding that continued placement of the child in his or her home would be contrary to the welfare of the child and, unless the judge or juvenile court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies, a finding as to whether the person who took the child into custody and the intake worker have made reasonable efforts to prevent the removal of the child from the home, while assuring that the child's health and safety are the paramount concerns, and to make it possible for the child to return safely home or, if for good cause shown sufficient information is not available for the judge or juvenile court commissioner to make those findings, an order for the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services to the child under the custody order to file with the court sufficient information for the judge or juvenile court commissioner to make those findings by no later than 5 days after the date of the order.

AB809, s. 5 Section 5. 48.21 (5) (b) 3. of the statutes is created to read:

AB809,11,2 48.21 (5) (b) 3. If the judge or juvenile court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, a determination that the county department, department, in a county having a population of 500,000 or more, or agency primarily responsible for providing services under the custody order is not required to make reasonable efforts with respect to the parent to make it possible for the child to return safely to his or her home.

AB809, s. 6 Section 6. 48.21 (5) (c) of the statutes is created to read:

AB809,11,11 48.21 (5) (c) The judge or juvenile court commissioner shall make the findings specified in par. (b) 1. and 3. on a case-by-case basis based on circumstances specific to the child and shall document or reference the specific information on which those findings are based in the custody order. A custody order that merely references par. (b) 1. or 3. without documenting or referencing that specific information in the custody order or an amended custody order that retroactively corrects an earlier custody order that does not comply with this paragraph is not sufficient to comply with this paragraph.

AB809, s. 7 Section 7. 48.21 (5) (d) of the statutes is created to read:

AB809,11,19 48.21 (5) (d) 1. If the judge or juvenile court commissioner finds that any of the circumstances specified in s. 48.355 (2d) (b) 1. to 5. applies with respect to a parent, the judge or juvenile court commissioner shall hold a hearing within 30 days after the date of that finding to determine the permanency plan for the child. If a hearing is held under this subdivision, the agency responsible for preparing the permanency plan shall file the permanency plan with the court not less than 5 days before the date of the hearing.

AB809,11,24 2. If a hearing is held under subd. 1., at least 10 days before the date of the hearing the court shall notify the child, any parent, guardian, and legal custodian of the child, and any foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) of the child of the time, place, and purpose of the hearing.

AB809,12,11 3. The court shall give a foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) who is notified of a hearing under subd. 2. an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent, or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. Any written or oral statement made under this subdivision shall be made upon oath or affirmation. A foster parent, treatment foster parent, or other physical custodian who receives a notice of a hearing under subd. 2. and an opportunity to be heard under this subdivision does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.