AB856: Bill Text

LRB-2891/2

GMM:cjs:nwn

2007 - 2008 LEGISLATURE

2007 Assembly BILL 856

February 21, 2008 - Introduced by Representatives Seidel, Jeskewitz and Grigsby. Referred to Committee on Children and Family Law.

AB856,3,3 An Act to repeal 48.21 (5) (d) 2., 48.21 (5) (d) 3., 48.32 (1) (c), 48.355 (2d) (c) 2., 48.355 (2d) (c) 3., 48.357 (2v) (c) 2., 48.357 (2v) (c) 3., 48.365 (2m) (ad) 2., 938.21 (5) (d) 2., 938.21 (5) (d) 3., 938.32 (1) (d), 938.355 (2d) (c) 2., 938.355 (2d) (c) 3., 938.357 (2v) (c) 2., 938.357 (2v) (c) 3. and 938.365 (2m) (ad) 2.; to renumber and amend 48.21 (5) (d) 1., 48.355 (2d) (c) 1., 48.357 (2v) (c) 1., 48.365 (2m) (ad) 1., 48.38 (5m) (c), 48.43 (5) (b), 938.21 (5) (d) 1., 938.355 (2d) (c) 1., 938.357 (2v) (c) 1., 938.365 (2m) (ad) 1. and 938.38 (5m) (c); to amend 46.238, 48.21 (5) (b) 1. d., 48.27 (3) (a) 1., 48.27 (3) (a) 1m., 48.27 (3) (a) 2., 48.27 (6), 48.299 (1) (ag), 48.32 (1) (b) 1. d., 48.355 (2) (b) 6g., 48.355 (2b), 48.357 (1) (am) 1., 48.357 (1) (am) 2., 48.357 (2m) (b), 48.357 (2r), 48.357 (2v) (a) 1m., 48.363 (1) (b), 48.363 (1m), 48.365 (2), 48.365 (2m) (ag), 48.38 (2) (intro.), 48.38 (3), 48.38 (4) (f) (intro.), 48.38 (4) (fm), 48.38 (4) (h) (intro.), 48.38 (5) (b), 48.38 (5) (c) 7., 48.38 (5) (d), 48.38 (5) (e), 48.38 (5m) (b), 48.38 (5m) (d), 48.38 (5m) (e), 48.42 (2g) (am), 48.427 (1m), 48.43 (5m), 48.63 (5) (d) 4., 146.0255 (2), 146.0255 (3) (b), 767.41 (3) (c), 938.21 (5) (b) 1. d., 938.27 (3) (a) 1., 938.27 (3) (a) 1m., 938.27 (3) (a) 2., 938.27 (6), 938.299 (1) (ag), 938.32 (1) (c) 1. d., 938.355 (2) (b) 6g., 938.355 (2b), 938.355 (6) (d) 1., 938.355 (6m) (a) 1g., 938.357 (1) (am) 1., 938.357 (1) (am) 2., 938.357 (2m) (b), 938.357 (2r), 938.357 (2v) (a) 1m., 938.363 (1) (b), 938.363 (1m), 938.365 (2), 938.365 (2m) (ag), 938.38 (2) (intro.), 938.38 (3) (intro.), 938.38 (4) (f) (intro.), 938.38 (4) (fm), 938.38 (4) (h) (intro.), 938.38 (5) (b), 938.38 (5) (c) 7., 938.38 (5) (d), 938.38 (5) (e), 938.38 (5m) (b), 938.38 (5m) (d) and 938.38 (5m) (e); and to create 48.02 (14j), 48.357 (1) (am) 2m., 48.38 (4) (i), 48.38 (4m), 48.38 (5) (bm), 48.38 (5m) (c) 2., 48.43 (5) (b) 2., 48.43 (5) (b) 3., 48.999, 757.69 (1) (g) 14., 938.02 (14j), 938.357 (1) (am) 2m., 938.38 (4) (i), 938.38 (4m), 938.38 (5) (bm), 938.38 (5m) (c) 2. and 938.9995 of the statutes; relating to: requiring consultation with a child in determining and reviewing his or her permanency plan; requiring agencies, in making reasonable efforts to place a child for adoption, with a guardian, with a relative, or in some other alternative permanent placement, to include efforts to place the child outside this state; requiring juvenile courts to take certain actions to expedite the interstate placement of children; requiring juvenile courts to give a child's out-of-home care provider the right to be heard in proceedings involving the child; requiring health care providers to report cases of infants with controlled substances in their bodily fluids to the agency responsible for investigating suspected child abuse or neglect; authorizing circuit court commissioners to conduct permanency plan reviews and hearings; providing that a juvenile court order is required to change the placement of a child, regardless of whether a hearing is held on the change in placement; requiring a juvenile court order placing a child in the care and placement responsibility of an agency whenever a child is placed outside the home; and eliminating permanency plan determination hearings when a consent decree maintains a child's placement outside the home.

Analysis by the Legislative Reference Bureau

Introduction

Under current federal law, to be eligible for foster care and adoption assistance under Title IV-E of the Social Security Act (Title IV-E), a state must have a state plan that meets certain conditions specified in Title IV-E. Recently, Congress amended Title IV-E by enactment of the Safe and Timely Interstate Placement of Foster Children Act of 2006 and the Child and Family Services Improvement Act of 2006. This bill amends certain provisions of the Children's Code and the Juvenile Justice Code relating to permanency planning for children placed in out-of-home care to conform those provisions to the requirements of Title IV-E, as affected by those acts.

Also, under current federal law, to be eligible for a grant under the Child Abuse Prevention and Treatment Act (CAPTA) a state must have in effect a state plan that meets certain conditions specified in CAPTA, including a requirement that a health care provider report to the child protective services system infants who are affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure. This bill conforms current state law relating to the reporting of infants whose bodily fluids contain a controlled substance to that requirement of CAPTA.

Finally, the bill authorizes a circuit court commissioner assigned to assist in juvenile matters to review a child's permanency plan, 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, and provides that the placement of a child who is placed outside the home may not be changed without an order of the court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court), regardless of whether a hearing is held on the change in placement.

Permanency planning for children in out-of-home care

Current law. Under current law, for each child living in an out-of-home placement, the county department of human services or social services (county department), the licensed child welfare agency, the Department of Health and Family Services (DHFS), in Milwaukee County, 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. A permanency plan must describe, among other things, the goal or goals of the permanency plan, with those goals being either the safe 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.

Under current law, the agency primarily responsible for providing services under a juvenile court order must make reasonable efforts to achieve the goal or goals of the child's permanency plan. In making those reasonable efforts, the agency may, at the same time as the agency is making reasonable efforts to return the child safely to his or her home, make reasonable efforts to place the child for adoption, with a guardian, in the home of a relative, or in some other alternative permanent placement (concurrent reasonable efforts). An agency, however, is not required to make reasonable efforts to return the child to his or her home 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 (permanency plan determination hearing).

Under current law, the juvenile court or a panel appointed by the juvenile court (permanency plan review panel) 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 achieve the goal of the child's permanency plan (permanency plan review). In addition, the juvenile court must hold a hearing to review a child's permanency plan no 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 the permanency plan review (permanency plan hearing).

Consultation with child. The Child and Family Services Improvement Act of 2006 requires a state's case review system to include procedural safeguards to assure that the court or administrative body conducting a permanency plan hearing consults, in an age-appropriate manner, with the child regarding the proposed permanency plan for the child.

This bill requires a child's permanency plan to include a statement as to whether the child's age and developmental level are sufficient for the juvenile court to consult with the child at the permanency plan determination hearing or at the permanency plan hearing or for the juvenile court or permanency plan review panel to consult with the child at the permanency plan review. If the child's permanency plan includes an independent living plan (which is a plan that is required for a child 15 years of age or over to assist the child in preparing for independent living) or indicates that the child's age and developmental level are sufficient for the juvenile court or permanency plan review panel to consult with the child regarding the child's permanency plan or if the juvenile court or panel otherwise determines that consultation with the child would be in the best interests of the child, the juvenile court or panel must consult with the child, in an age-appropriate and developmentally appropriate manner, regarding the child's permanency plan and any other matters the court or panel finds appropriate by permitting the child, the child's caseworker, the child's counsel, or the child's guardian ad litem to make a written or oral statement during the hearing or review, or to submit a written statement prior to the hearing or review, expressing the child's wishes, goals, and concerns regarding the permanency plan and those matters.

Expediting out-of-state placements. The Safe and Timely Interstate Placement of Foster Children Act of 2006 requires reasonable efforts to be made to place a child in a timely manner in accordance with the child's permanency plan, including, if appropriate, through an interstate placement, requires a permanency plan hearing to consider out-of-state permanent placement options for a child, and requires concurrent reasonable efforts to include identifying appropriate out-of-state placements for adoption or with a legal guardian. That act also provides grants to the highest courts in states receiving assistance under Title IV-E to enable those courts to assess the effect of state laws requiring proceedings to expedite the interstate placement of children, including state laws requiring courts to cooperate in the sharing of information, authorizing courts to obtain information and testimony without requiring interstate travel by agencies and parties, and permitting parents, children, other necessary parties, and attorneys to participate in cases involving interstate placement without requiring their interstate travel.

This bill requires a permanency plan whose goal is to place a child for adoption, with a guardian, with a relative, or in some other alternative permanent placement to include efforts to place the child in a safe and appropriate placement outside the state if the agency determines that such a placement would be in the best interests of the child and appropriate to achieving the goal of the child's permanency plan. For a child who is placed in a placement outside the state, the bill requires the permanency plan to include a statement as to whether that placement continues to be in the best interests of the child and appropriate to achieving the goal of the child's permanency plan. In addition, the bill requires an agency, in making concurrent reasonable efforts to place a child for adoption, with a guardian, with a relative, or in some other alternative permanent placement, to include efforts to place the child in a safe and appropriate placement outside the state if the agency determines that such a placement would be in the best interests of the child and appropriate to achieving the goals of the child's permanency plan.

The bill also requires a juvenile court, at the permanency plan determination hearing, to consider placing the child in a placement outside the state if the juvenile court determines that such a placement would be in the best interests of the child and appropriate to achieving the goal of the child's permanency plan. In addition, the bill requires a juvenile court or permanency plan review panel, in determining at the permanency plan hearing or the permanency plan review whether reasonable efforts were made to achieve the permanency planning goal of placing the child for adoption, with a guardian, with a relative, or in some other alternative permanent placement, to determine whether reasonable efforts were made by the agency to place the child in a safe and appropriate placement outside the state that is in the best interests of the child and appropriate to achieving the goal of the child's permanency plan or, if the child is placed in a placement outside the state, to determine whether that placement continues to be in the best interests of the child and appropriate to achieving the goal of the child' s permanency plan.

Finally, with respect to expediting the out-of-state placement of children, the bill requires the juvenile courts of this state to cooperate with the courts of other states in the sharing of information; obtain, to the greatest extent possible, information and testimony from agencies and parties located in other states without requiring interstate travel by those agencies and parties; and permit parents, children, other necessary parties, attorneys, and guardians ad litem in proceedings involving the interstate placement of a child to participate in those proceedings without requiring interstate travel by those persons.

Right to be heard in proceedings involving children in out-of-home care

The Safe and Timely Interstate Placement of Foster Children Act of 2006 requires a state's case review system to include procedures for assuring that any foster parent, preadoptive parent, or relative providing care for a child is provided a right to be heard in any proceeding held with respect to the child. Current state law, however, requires the juvenile court to give a foster parent, treatment foster parent, any relative with whom a child is living, and any other physical custodian of a child an opportunity to be heard at any hearing under the Children's Code or the Juvenile Justice Code, involving the child, other than a hearing for which notice need only be provided to the child and his or her counsel, by permitting that person to make a written or oral statement during the hearing or to submit a written statement prior to the hearing.

This bill requires the juvenile court to give a foster parent, treatment foster parent, operator of a facility in which a child is living, relative with whom a child is living, or other physical custodian of a child a right to be heard at any hearing under the Children's Code or the Juvenile Justice Code, involving the child, other than a hearing for which notice need only be provided to the child and his or her counsel. The bill also requires a juvenile court to give that right to a preadoptive parent, which the bill defines as a foster parent, treatment foster parent, relative, or other person with whom a child is placed for adoption following a termination of parental rights to the child.

Reporting of infants affected by controlled substances

CAPTA requires a state's state plan to include a requirement that a health care provider involved in the delivery or care of an infant identified as being affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure to notify the child protective services system of the occurrence of that condition in the infant. Current state law requires a physician who determines that there is a serious risk that an infant's bodily fluids contain a controlled substance to report that information to a county department of human services or social services or, in Milwaukee County, to the county department of community programs or developmental disabilities services. The county department then must offer or make arrangements for the provision of appropriate services and treatment for the infant and the infant's mother.

This bill requires a physician who determines that there is a serious risk that an infant's bodily fluids contain a controlled substance to report that information to the agency that is responsible for investigating reports of suspected child abuse or neglect, which is the county department, DHFS in Milwaukee County, or a child welfare agency under contract with a county department or DHFS to conduct those investigations. Under the bill, if a county department or a child welfare agency under contract with a county department receives such a report, the county department or child welfare agency must offer or make arrangements for the provision of appropriate services and treatment for the infant and the infant's mother and, if DHFS or a child welfare agency under contract with DHFS receives such a report, DHFS or the child welfare agency must refer the report to the county department of community programs or developmental disabilities services and that county department must offer or make arrangements for the provision of those services and that treatment.

Circuit court commissioner review of permanency plans

Under current law, a circuit court commissioner assigned to assist in juvenile matters may conduct certain proceedings under the Children's Code and the Juvenile Justice Code, including temporary physical custody hearings, plea hearings, and uncontested fact-finding and dispositional hearings. This bill permits a circuit court commissioner to conduct permanency plan reviews and hearings.

Change in placement orders

Under current law, the placement of a child who is placed outside the home may be changed without a hearing if the parent, guardian, or legal custodian of the child and the child, if 12 years of age or over, sign written waivers of objection to the change in placement or if the child, the parent, guardian, or legal custodian of the child, and the foster parent, treatment foster parent, or other physical custodian of the child do not file an objection to the proposed change in placement within ten days after receiving notice of the proposed change in placement.

This bill provides that a juvenile court order is required to change the placement of a child who is placed outside the home, regardless of whether a hearing is held on the proposed change in placement, unless the change in placements is authorized in the dispositional order and no objection to the change in placement is filed. If no objection is filed, the child's placement may be changed ten days after notice is sent to the parties and the juvenile court may issue an order approving the change in placement after it is made.

Placement and care responsibility

Under current law, if the juvenile court orders a child who is under the supervision of a county department or, in Milwaukee County, DHFS to be placed outside the home, the juvenile court must order the child into the placement and care responsibility of the county department or DHFS and assign the county department or DHFS primary responsibility for providing services to the child. This bill requires that order whenever a juvenile court orders a child to be placed outside the home, regardless of whether the child is under the supervision of a county department or DHFS.

Reasonable efforts not required; permanency plan determination hearing

Finally, the bill eliminates the requirement that a permanency plan determination hearing be held for a child who is living outside the home at the time that a consent decree maintaining the child in that placement is entered into when reasonable efforts to return the child to his or her home are not required.

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:

AB856, s. 1 Section 1. 46.238 of the statutes is amended to read:

AB856,8,16 46.238 Infants and unborn children whose mothers abuse controlled substances or controlled substance analogs. If a county department under s. 46.22 or 46.23 or, in a county having a population of 500,000 or more, a county department under s. 51.42 or 51.437 an agency, as defined in s. 48.981 (1) (ag), receives a report under s. 146.0255 (2) and that agency is a county department under s. 46.22 or 46.23 or a licensed child welfare agency under contract with that county department, the county department agency shall offer to provide appropriate services and treatment to the child and the child's mother or to the unborn child, as defined in s. 48.02 (19), and the expectant mother of the unborn child or the county department agency shall make arrangements for the provision of appropriate services or and treatment. If an agency receives a report under s. 146.0255 (2) and that agency is the department or a licensed child welfare agency under contract with the department, the agency shall refer the report to the county department under s. 51.42 or 51.437 and that county department shall offer to provide, or make arrangements for the provision of, those services and that treatment.

AB856, s. 2 Section 2. 48.02 (14j) of the statutes is created to read:

AB856,9,3 48.02 (14j) "Preadoptive parent" means a foster parent, treatment foster parent, relative, or other person with whom a child is placed under s. 48.833, 48.835, or 48.837 following a termination of parental rights to the child.

AB856, s. 3 Section 3. 48.21 (5) (b) 1. d. of the statutes, as created by 2007 Wisconsin Act 20, is amended to read:

AB856,9,11 48.21 (5) (b) 1. d. If the child is under the supervision of the county department or, in a county having a population of 500,000 or more, the department, an An order ordering the child into the placement and care responsibility of the county department or, in a county having a population of 500,000 or more, the department as required under 42 USC 672 (a) (2) and assigning the county department or department primary responsibility for providing services to the child.

AB856, s. 4 Section 4. 48.21 (5) (d) 1. of the statutes is renumbered 48.21 (5) (d) and amended to read:

AB856,9,20 48.21 (5) (d) If the judge or circuit 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 circuit court commissioner shall hold a hearing under s. 48.38 (4m) 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.

AB856, s. 5 Section 5. 48.21 (5) (d) 2. of the statutes is repealed.

AB856, s. 6 Section 6. 48.21 (5) (d) 3. of the statutes is repealed.

AB856, s. 7 Section 7. 48.27 (3) (a) 1. of the statutes is amended to read: