SB488: Bill Text

LRB-3005/2

GMM:wlj:jf

2003 - 2004 LEGISLATURE

2003 Senate BILL 488

February 24, 2004 - Introduced by Senator Roessler, cosponsored by Representative Kestell. Referred to Committee on Health, Children, Families, Aging and Long Term Care.

SB488,2,2 An Act to repeal 48.977 (1); to amend 20.435 (7) (b), 46.10 (14) (a), 46.10 (14) (b), 46.261 (1) (a), 46.261 (2) (a) 1., 46.261 (2) (a) 3., 46.261 (2) (a) 4., 46.261 (2) (b), 46.495 (1) (d), 46.51 (4), 48.33 (4) (intro.), 48.345 (3) (c), 48.356 (1), 48.425 (1) (g), 48.427 (3m) (intro.), 48.427 (3p), 48.48 (17) (a) 3., 48.48 (17) (c) 4., 48.57 (1) (c), 48.57 (3) (a) 4., 48.57 (3m) (cm), 48.57 (3n) (cm), 48.61 (3), 48.615 (1) (b), 48.977 (title), 48.977 (2) (intro.), 48.977 (2) (a), 48.977 (2) (b), 48.977 (2) (c), 48.977 (2) (f), 48.977 (4) (a) 4., 48.977 (4) (a) 6., 48.977 (4) (b) 3., 48.977 (4) (c) 1. g., 48.977 (4) (e), 48.977 (4) (g) 1., 48.977 (4) (g) 2., 48.977 (4) (h) 1., 48.977 (4) (h) 2., 49.155 (1m) (a) 1m. b., 49.155 (1m) (bm), 49.155 (1m) (c) 1g., 49.46 (1) (a) 5., 767.078 (1) (a) 2., 767.29 (1m) (c), 767.29 (2), 767.29 (4), 938.33 (4) (intro.), 938.57 (1) (c) and 938.57 (3) (a) 4.; and to create 48.427 (3m) (c), 48.62 (5), 48.977 (3r) and 938.345 (4) of the statutes; relating to: the appointment of a guardian for certain children in need of protection or services, the payment of subsidized guardianship payments to a guardian of a child who meets certain requirements, and making an appropriation.

Analysis by the Legislative Reference Bureau

Under current law, the court assigned to exercise jurisdiction under the Children's Code (juvenile court) may appoint a relative of a child as the guardian of the child if the juvenile court makes certain findings, including a finding that the child has been adjudged to be in need of protection or services and has been placed outside of his or her home pursuant to an order of the juvenile court for one year or longer.

This bill permits any person, not just a relative, to be appointed as the guardian of a child who has been adjudged to be in need of protection or services. The bill also eliminates that one-year waiting period and permits a child who has been adjudged to be in need of protection or services or whose parents' parental rights to the child have been terminated to be placed directly in the home of a guardian without first having been placed in another out-of-home placement. In addition, the bill permits the parental rights of a parent of a child in need of protection or services for whom a guardian has been appointed to be terminated on the grounds of abandonment if, when the juvenile court appointed the guardian, the juvenile court provided the parent with notice of any ground for termination of parental rights that may be applicable and of the conditions necessary for the child to be returned home and the parent has failed to visit or communicate with the child for a period of three months or longer.

Currently, a relative who is appointed as the guardian of a child in need of protection or services and who meets certain other requirements is eligible to receive long-term kinship care payments in the amount of $215 per month for providing care and maintenance for the child. This bill permits a county department of human services or social services (county department) or, in Milwaukee County, the Department of Health and Family Services (DHFS) to provide monthly subsidized guardianship payments to a person who is appointed as the guardian for a child in need of protection of services; was the licensed foster parent or treatment foster parent of the child before that appointment; and has entered into a subsidized guardianship agreement with the county department or DHFS. A county department or DHFS may provide the monthly subsidized guardianship payments to the person if the child has been placed outside the home for a cumulative total period of one year or longer; the juvenile court has found that reunification of the child with the child's 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; and the juvenile court has found that appointment of a guardian is in the best interests of the child; or if the child does not meet any of those conditions, but DHFS has determined that appointing a guardian for the child and providing subsidized guardianship payments to the guardian are in the best interests of the child and the juvenile court has confirmed that determination.

Under the bill, the amount of a monthly subsidized guardianship payment is equal to the amount of the monthly foster care or treatment foster care payment received by the guardian immediately before the guardianship order was granted. In addition, a subsidized guardian is eligible for a child care subsidy under the Wisconsin Works Program in the same manner as a foster parent is so eligible, and a child who is in the care of a subsidized guardian is eligible for Medical Assistance in the same manner as a child in foster care is so eligible.

The bill also requires DHFS to request from the secretary of the federal Department of Health and Human Services a waiver of the requirements under Title IV-E of the federal Social Security Act that would authorize the state to receive federal foster care and adoption assistance reimbursement for the costs of providing care for a child who is in the care of a guardian who was licensed as the child's foster parent or treatment foster parent before the guardianship appointment, and who has entered into a subsidized guardianship agreement. If the waiver is approved for Milwaukee County, the bill requires DHFS to provide the monthly subsidized guardianship payments. If the waiver is approved for any other county, the bill requires DHFS to determine which counties are authorized to provide subsidized guardianship payments and requires those authorized counties to provide those payments.

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:

SB488, s. 1 Section 1. 20.435 (7) (b) of the statutes is amended to read:

SB488,4,9 20.435 (7) (b) Community aids. The amounts in the schedule for human services under s. 46.40, to fund services provided by resource centers under s. 46.283 (5), for services under the family care benefit under s. 46.284 (5), for reimbursement to counties having a population of less than 500,000 for the cost of court attached intake services under s. 48.06 (4), for shelter care under ss. 48.58 and 938.22, and for foster care and, treatment foster care , and subsidized guardianship care under s. ss. 46.261 and 49.19 (10). Social services disbursements under s. 46.03 (20) (b) may be made from this appropriation. Refunds received relating to payments made under s. 46.03 (20) (b) for the provision of services for which moneys are appropriated under this paragraph shall be returned to this appropriation. Notwithstanding ss. 20.001 (3) (a) and 20.002 (1), the department of health and family services may transfer funds between fiscal years under this paragraph. The department shall deposit into this appropriation funds it recovers under ss. 46.495 (2) (b) and 51.423 (15) from prior year audit adjustments including those resulting from audits of services under s. 46.26, 1993 stats., or s. 46.27. Except for amounts authorized to be carried forward under s. 46.45, all funds recovered under ss. 46.495 (2) (b) and 51.423 (15) and all funds allocated under s. 46.40 and not spent or encumbered by December 31 of each year shall lapse to the general fund on the succeeding January 1 unless carried forward to the next calendar year by the joint committee on finance.

SB488, s. 2 Section 2. 46.10 (14) (a) of the statutes is amended to read:

SB488,4,25 46.10 (14) (a) Except as provided in pars. (b) and (c), liability of a person specified in sub. (2) or s. 46.03 (18) for inpatient care and maintenance of persons under 18 years of age at community mental health centers, a county mental health complex under s. 51.08, the centers for the developmentally disabled, the Mendota Mental Health Institute, and the Winnebago Mental Health Institute or care and maintenance of persons under 18 years of age in residential, nonmedical facilities such as group homes, foster homes, treatment foster homes, child caring institutions, subsidized guardianship homes, residential care centers for children and youth, and juvenile correctional institutions is determined in accordance with the cost-based fee established under s. 46.03 (18). The department shall bill the liable person up to any amount of liability not paid by an insurer under s. 632.89 (2) or (2m) or by other 3rd-party benefits, subject to rules that include formulas governing ability to pay promulgated by the department under s. 46.03 (18). Any liability of the patient not payable by any other person terminates when the patient reaches age 18, unless the liable person has prevented payment by any act or omission.

SB488, s. 3 Section 3. 46.10 (14) (b) of the statutes is amended to read:

SB488,5,10 46.10 (14) (b) Except as provided in par. (c) and subject to par. (cm), liability of a parent specified in sub. (2) or s. 46.03 (18) for the care and maintenance of the parent's minor child who has been placed by a court order under s. 48.355 or 48.357 in a residential, nonmedical facility such as a group home, foster home, treatment foster home, subsidized guardianship home, or residential care center for children and youth shall be determined by the court by using the percentage standard established by the department of workforce development under s. 49.22 (9) and by applying the percentage standard in the manner established by the department under s. 46.247.

SB488, s. 4 Section 4. 46.261 (1) (a) of the statutes is amended to read:

SB488,5,22 46.261 (1) (a) The child is living in a foster home or treatment foster home licensed under s. 48.62 if a license is required under that section, in a foster home or treatment foster home located within the boundaries of a federally recognized American Indian reservation in this state and licensed by the tribal governing body of the reservation, in a group home licensed under s. 48.625, in a subsidized guardianship home under s. 48.62 (5), or in a residential care center for children and youth licensed under s. 48.60, and has been placed in the foster home, treatment foster home, group home, subsidized guardianship home, or center by a county department under s. 46.215, 46.22, or 46.23, by the department, or by a federally recognized American Indian tribal governing body in this state under an agreement with a county department under s. 46.215, 46.22, or 46.23.

SB488, s. 5 Section 5. 46.261 (2) (a) 1. of the statutes is amended to read:

SB488,6,13 46.261 (2) (a) 1. A nonrelative who cares for the dependent child in a foster home or treatment foster home having a license under s. 48.62, in a foster home or treatment foster home located within the boundaries of a federally recognized American Indian reservation in this state and licensed by the tribal governing body of the reservation or in a group home licensed under s. 48.625, a subsidized guardian under s. 48.62 (5) who cares for the dependent child, or a minor custodial parent who cares for the dependent child, regardless of the cause or prospective period of dependency. The state shall reimburse counties pursuant to the procedure under s. 46.495 (2) and the percentage rate of participation set forth in s. 46.495 (1) (d) for aid granted under this section except that if the child does not have legal settlement in the granting county, state reimbursement shall be at 100%. The county department under s. 46.215 or 46.22 or the department under s. 48.48 (17) shall determine the legal settlement of the child. A child under one year of age shall be eligible for aid under this subsection irrespective of any other residence requirement for eligibility within this section.

SB488, s. 6 Section 6. 46.261 (2) (a) 3. of the statutes is amended to read:

SB488,6,25 46.261 (2) (a) 3. A county or, in a county having a population of 500,000 or more, the department, when the child is placed in a licensed foster home, treatment foster home, group home, or residential care center for children and youth or in a subsidized guardianship home by a licensed child welfare agency or by a federally recognized American Indian tribal governing body in this state or by its designee, if the child is in the legal custody of the county department under s. 46.215, 46.22 , or 46.23 or the department under s. 48.48 (17) or if the child was removed from the home of a relative, as defined under s. 48.02 (15), as a result of a judicial determination that continuance in the home of the relative would be contrary to the child's welfare for any reason and the placement is made pursuant to an agreement with the county department or the department.

SB488, s. 7 Section 7. 46.261 (2) (a) 4. of the statutes is amended to read:

SB488,7,10 46.261 (2) (a) 4. A licensed foster home, treatment foster home, group home, or residential care center for children and youth or a subsidized guardianship home when the child is in the custody or guardianship of the state, when the child is a ward of an American Indian tribal court in this state and the placement is made under an agreement between the department and the tribal governing body, or when the child was part of the state's direct service case load and was removed from the home of a relative, as defined under s. 48.02 (15), as a result of a judicial determination that continuance in the home of a relative would be contrary to the child's welfare for any reason and the child is placed by the department.

SB488, s. 8 Section 8. 46.261 (2) (b) of the statutes is amended to read:

SB488,7,20 46.261 (2) (b) Notwithstanding par. (a), aid under this section may not be granted for placement of a child in a foster home or treatment foster home licensed by a federally recognized American Indian tribal governing body, for placement of a child in a foster home, treatment foster home, group home, subsidized guardianship home, or residential care center for children and youth by a tribal governing body or its designee, or for the placement of a child who is a ward of a tribal court if the tribal governing body is receiving or is eligible to receive funds from the federal government for that type of placement or for placement of a child in a group home licensed under s. 48.625.

SB488, s. 9 Section 9. 46.495 (1) (d) of the statutes is amended to read:

SB488,8,15 46.495 (1) (d) From the appropriations under s. 20.435 (3) (o) and (7) (b) and (o), the department shall distribute the funding for social services, including funding for foster care or, treatment foster care, or subsidized guardianship care of a child on whose behalf aid is received under s. 46.261, to county departments under ss. 46.215, 46.22, and 46.23 as provided under s. 46.40. County matching funds are required for the distributions under s. 46.40 (2), (8), and (9) (b). Each county's required match for the distributions under s. 46.40 (2) and (8) for a year equals 9.89% of the total of the county's distributions under s. 46.40 (2) and (8) for that year for which matching funds are required plus the amount the county was required by s. 46.26 (2) (c), 1985 stats., to spend for juvenile delinquency-related services from its distribution for 1987. Each county's required match for the distribution under s. 46.40 (9) (b) for a year equals 9.89% of that county's amounts described in s. 46.40 (9) (a) (intro.) for that year. Matching funds may be from county tax levies, federal and state revenue sharing funds, or private donations to the county that meet the requirements specified in s. 51.423 (5). Private donations may not exceed 25% of the total county match. If the county match is less than the amount required to generate the full amount of state and federal funds distributed for this period, the decrease in the amount of state and federal funds equals the difference between the required and the actual amount of county matching funds.

SB488, s. 10 Section 10. 46.51 (4) of the statutes is amended to read:

SB488,8,20 46.51 (4) A county may use the funds distributed under this section to fund additional foster parents and, treatment foster parents, and subsidized guardians to care for abused and neglected children and to fund additional staff positions to provide services related to child abuse and neglect and to unborn child abuse.

SB488, s. 11 Section 11. 48.33 (4) (intro.) of the statutes is amended to read:

SB488,9,2 48.33 (4) Other out-of-home placements. (intro.) A report recommending placement of an adult expectant mother outside of her home shall be in writing. A report recommending placement of a child in a foster home, treatment foster home, group home, or residential care center for children and youth or, in the home of a relative other than a parent, or in the home of the child's guardian under s. 48.977 (2) shall be in writing and shall include all of the following:

SB488, s. 12 Section 12. 48.345 (3) (c) of the statutes is amended to read:

SB488,9,6 48.345 (3) (c) A foster home or treatment foster home licensed under s. 48.62 or, a group home licensed under s. 48.625 , or in the home of the child's guardian under s. 48.977 (2).

SB488, s. 13 Section 13. 48.356 (1) of the statutes is amended to read:

SB488,9,17 48.356 (1) Whenever the court orders a child to be placed outside his or her home, orders an expectant mother of an unborn child to be placed outside of her home, or denies a parent visitation because the child or unborn child has been adjudged to be in need of protection or services under s. 48.345, 48.347, 48.357, 48.363, or 48.365 or whenever the court appoints a guardian for a child under s. 48.977 (2), the court shall orally inform the parent or parents who appear in court or the expectant mother who appears in court of any grounds for termination of parental rights under s. 48.415 which that may be applicable and of the conditions necessary for the child or expectant mother to be returned to the home or for the parent to be granted visitation.

SB488, s. 14 Section 14. 48.425 (1) (g) of the statutes is amended to read:

SB488,9,25 48.425 (1) (g) If an agency designated under s. 48.427 (3m) (a) 1. to 4. determines that it is unlikely that the child will be adopted, or if adoption would not be in the best interests of the child, the report shall include a plan for placing the child in a permanent family setting. The plan shall include a recommendation as to the agency to be named guardian of the child or a recommendation that the person appointed as the guardian of the child under s. 48.977 (2) continue to be the guardian of the child or that a guardian be appointed for the child under s. 48.977 (2).

SB488, s. 15 Section 15. 48.427 (3m) (intro.) of the statutes is amended to read:

SB488,10,4 48.427 (3m) (intro.) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has not been appointed under s. 48.977, the court shall either do one of the following:

SB488, s. 16 Section 16. 48.427 (3m) (c) of the statutes is created to read:

SB488,10,7 48.427 (3m) (c) Appoint a guardian under s. 48.977 and transfer guardianship and custody of the child to the guardian.

SB488, s. 17 Section 17. 48.427 (3p) of the statutes is amended to read:

SB488,10,13 48.427 (3p) If the rights of both parents or of the only living parent are terminated under sub. (3) and if a guardian has been appointed under s. 48.977, the court may enter one of the orders specified in sub. (3m) (a) or (b). If the court enters an order under this subsection, the court shall terminate the guardianship under s. 48.977.

SB488, s. 18 Section 18. 48.48 (17) (a) 3. of the statutes is amended to read: