AB722: Bill Text

LRB-4046/1

GMM:jld:rs

2009 - 2010 LEGISLATURE

2009 Assembly BILL 722

February 11, 2010 - Introduced by Representatives Strachota, Knodl, J. Ott, Honadel, Vos, Townsend and Spanbauer, cosponsored by Senators Darling, Lassa, Olsen, Hopper and Plale. Referred to Committee on Children and Families.

AB722,2,7 An Act to renumber and amend 48.357 (2r), 48.64 (4) (a), 48.64 (4) (c) and 938.357 (2r); to amend 48.293 (2), 48.295 (1), 48.295 (3), 48.33 (5), 48.355 (2) (b) 2., 48.357 (1) (am) 1., 48.357 (1) (am) 2m., 48.357 (1) (am) 2r., 48.357 (1) (c) 1., 48.357 (2m) (a), 48.357 (2m) (b), 48.357 (2m) (bp), 48.38 (4) (c), 48.62 (3m), 48.78 (2) (a), 48.78 (2) (ag), 48.78 (2) (aj), 48.78 (2) (am), 48.78 (2) (ap), 48.834 (title), 48.834 (1), 48.834 (1m), 938.293 (2), 938.295 (1) (b), 938.295 (3), 938.33 (5), 938.355 (2) (b) 2., 938.357 (1) (am) 1., 938.357 (1) (am) 2., 938.357 (1) (am) 2r., 938.357 (1) (c) 1., 938.357 (2m) (a), 938.357 (2m) (b), 938.357 (2m) (bp), 938.38 (4) (c), 938.78 (2) (a), 938.78 (2) (ag) and 938.78 (2) (am); to repeal and recreate 48.293 (2), 48.295 (1), 48.295 (3), 48.33 (5), 48.355 (2) (b) 2., 48.357 (1) (am) 1., 48.357 (2m) (b), 48.357 (2r), 48.38 (4) (c), 48.64 (4) (a), 48.64 (4) (c), 938.293 (2), 938.295 (1) (b), 938.295 (3), 938.33 (5), 938.355 (2) (b) 2., 938.357 (1) (am) 1., 938.357 (1) (am) 2., 938.357 (2m) (b), 938.357 (2r) and 938.38 (4) (c); and to create 48.357 (1) (am) 2r., 48.357 (2m) (bp), 48.357 (2r) (b), 48.62 (3m), 48.64 (4) (a) 2., 48.64 (4) (c) 3., 48.834 (1m), 938.357 (1) (am) 2r., 938.357 (2m) (bp) and 938.357 (2r) (b) of the statutes; relating to: disclosure of the identity of a foster parent or treatment foster parent of a child; the rights of a foster parent, treatment foster parent, or other physical custodian of a child on removal of the child from the person's home; and placement of a child for adoption with a foster parent, treatment foster parent, or other physical custodian of the child.

Analysis by the Legislative Reference Bureau

Introduction

This bill makes various changes relating to disclosure of the identity of a foster parent or treatment foster parent of a child; the rights of a foster parent, treatment foster parent, or other physical custodian of a child on removal of the child from the person's home, whether that removal is through a change in placement or an agency decision or order; and placement of a child for adoption with a foster parent, treatment foster parent, or other physical custodian of the child.

Disclosure of identity

Under current law, a dispositional order of the court assigned to exercise jurisdiction under the Children's Code (juvenile court) that places a child outside the home must include the name of the place or facility where the child shall be cared for, except that the juvenile court may order the name and address of a foster parent or treatment foster parent to be withheld from a child's parent or guardian if the juvenile court finds that disclosure of that information would result in imminent danger to the child, the foster parent, or the treatment foster parent.

This bill provides that the name, other than the first name, and address of a person licensed to operate a foster home or treatment foster home may not be disclosed to the parent or guardian of a child placed in the home or to any other adult relative of the child without the written consent of the licensee.

Rights on removal of child

Change in placement. Under current law, a child who is subject to a dispositional order of the juvenile court, the child's parent, guardian, or legal custodian, or any agency bound by the dispositional order may request a change in placement of the child. Currently, if the agency requests the change in placement, the agency must provide notice to the child, the child's parent, guardian, and legal custodian, and the child's foster parent, treatment foster parent, or other physical custodian stating the reasons for the change in placement, why the new placement is preferable to the current placement, and how the new placement satisfies the objectives of the child's treatment plan. A person who receives notice of such a change in placement may obtain a hearing on the change in placement by filing an objection to the change in placement.

Current law provides a slightly different procedure for when the child or the child's parent, guardian, or legal custodian requests a change in placement. In that case, the notice must state what new information affects the advisability of the current placement and a hearing must be held unless all parties waive their objections to the change in placement.

Under either procedure, if a hearing is held and the change in placement would remove the child from a foster home or treatment foster home or from the home of another physical custodian, the juvenile court must give the foster parent, treatment foster parent, or other physical custodian the right to be heard by permitting that person to make a written or oral statement at the hearing or to submit a written statement prior to the hearing relating to the child and to the change in placement.

This bill expands the rights of a foster parent, treatment foster parent, or other physical custodian in connection with a change in placement proceeding. Specifically, the bill provides that, if a hearing is held and the change in placement would remove the child from a foster home or treatment foster home or from the home of another physical custodian in which the child has been placed for six months or more, the foster parent, treatment foster parent, or other physical custodian shall become a party to the proceeding and, as a party, shall have the right to be represented by counsel, to inspect and copy, through counsel, all records relating to the child, to request that the child be examined or assessed by an expert of the foster parent's, treatment foster parent's, or other physical custodian's own choosing, to present evidence, including expert testimony, to confront and cross-examine witnesses, and to present alternative placement recommendations. The bill also requires the juvenile court, in such a proceeding, to consider as paramount the best interests of the child in determining whether to continue placement of the child in his or her current placement or to change the child's placement to the proposed change in placement.

The bill also changes the standard for a change in placement requested by an agency by eliminating the requirement that the request show why the new placement is preferable to the current placement and instead requiring the request to show why the new placement would be in the best interests of the child. In addition, the bill changes the standard for a change in placement requested by the child or the child's parent, guardian, or legal custodian by eliminating the requirement that the request state what new information is available that affects the advisability of the current placement and instead requiring the request to state what information, new or old, is available that affects the advisability of the current placement and why the new placement would be in the best interests of the child.

Agency decision or order. Under current law, if a child has been placed in a foster home, treatment foster home, or group home or in the home of a relative other than a parent for six months or longer, the Department of Children and Families (DCF), the county department of human services or social services (county department), or licensed child welfare agency (collectively, "agency") that placed the child must give the head of the home written notice of intent to remove the child from the home, stating the reasons for the removal. In those cases, the child may not be removed from the home before completion of a hearing before DCF or the circuit court to review the removal decision, if a hearing has been requested, or 30 days after receipt of the notice of intent to remove, whichever is later, unless the safety of the child requires removal.

Also, under current law, any decision or order issued by an agency that affects the head of a foster home, treatment foster home, or group home, the head of the home of a relative other than a parent in which a child is placed, or the child involved may be appealed to DCF under fair hearing procedures. Under those procedures, the head of the home is entitled to be represented by counsel, to examine documents and records, to bring witnesses, to confront and cross-examine adverse witnesses, and to have judicial review of DCF's decision.

In addition, under current law, an interested party may file a petition with the circuit court for the county where a child is placed alleging that a decision or order of the agency supervising the child's placement is not in the best interests of the child. On receipt of a petition, the circuit court may call a hearing for the purpose of reviewing the decision or order. If the child is placed in a foster home or in the home of a relative other than a parent, the foster parent or relative may present relevant evidence at the hearing.

This bill makes the rights of the head of a foster home, treatment foster home, group home, or home of a relative other than a parent in connection with an appeal of an agency decision or order removing a child from the person's home consistent with the rights of a foster parent, treatment foster parent, or other physical custodian in connection with a change in placement proceeding. Specifically, the bill provides that, if the head of a foster home, treatment foster home, group home, or home of a relative other than a parent in which a child has been placed for six months or more appeals an agency decision affecting the head of the home to DCF or files a petition with the circuit court requesting the circuit court to review the agency decision or order, the head of the home is a party to the proceeding and, as a party, has the right to be represented by counsel, to inspect and copy, through counsel, all records relating to the child, to request that the child be examined or assessed by an expert of his or her own choosing, to present evidence, including expert testimony, to confront and cross-examine witnesses, and to present alternative placement recommendations.

Placement of child for adoption

Current law requires an agency, before placing a child for adoption, to consider the availability of a placement for adoption with a relative of the child. This bill requires an agency, before placing for adoption a child who has been placed in the home of a foster parent, treatment foster parent, or other physical custodian for six months or more, to first consider the availability of a placement for adoption with that foster parent, treatment foster parent, or other physical custodian before considering the availability of a placement for adoption with a relative.

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:

AB722, s. 1 Section 1. 48.293 (2) of the statutes is amended to read:

AB722,5,16 48.293 (2) All records relating to a child, or to an unborn child and the unborn child's expectant mother, which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party and to inspection, by the court-appointed special advocate for the child, or by counsel for any foster parent, treatment foster parent, or other physical custodian described in s. 48.357 (2r) (b), upon demand and upon presentation of releases when necessary, at least 48 96 hours before the proceeding. Persons and unborn children, by their guardians ad litem, entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with the permission of the court. The court may instruct counsel, a guardian ad litem, or a court-appointed special advocate not to disclose specified items in the materials records to the child or, the parent, or to the expectant mother, or the child's foster parent, treatment foster parent, or other physical custodian described in s. 48.357 (2r) (b) if the court reasonably believes that the disclosure would be harmful to the interests of the child or the unborn child.

AB722, s. 2 Section 2. 48.293 (2) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB722,6,10 48.293 (2) All records relating to a child or to an unborn child and the unborn child's expectant mother shall be open to inspection by a guardian ad litem or counsel for any party, by the court-appointed special advocate for the child, or by counsel for any foster parent or other physical custodian described in s. 48.357 (2r) (b), upon demand and upon presentation of releases when necessary, at least 96 hours before the proceeding. Persons and unborn children, by their guardians ad litem, entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with the permission of the court. The court may instruct counsel, a guardian ad litem, or a court-appointed special advocate not to disclose specified items in the records to the child, the parent, the expectant mother, or the child's foster parent or other physical custodian described in s. 48.357 (2r) (b) if the court reasonably believes that the disclosure would be harmful to the interests of the child or the unborn child.

AB722, s. 3 Section 3. 48.295 (1) of the statutes is amended to read:

AB722,7,10 48.295 (1) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4), the court may order any child coming within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist, or licensed psychologist, or by another expert appointed by the court holding at least a master's degree in social work or another related field of child development, in order that the child's physical, psychological, alcohol or other drug dependency, mental, or developmental condition may be considered. The court may also order a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4) of a parent, guardian, or legal custodian whose ability to care for a child is at issue before the court or of an expectant mother whose ability to control her use of alcohol beverages, controlled substances, or controlled substance analogs is at issue before the court. The court shall hear any objections by the child or, the child's parents, guardian, or legal custodian, or the child's foster parent, treatment foster parent, or other physical custodian described in s. 48.357 (2r) (b) to the request for such an examination or assessment before ordering the examination or assessment. The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination in a county having a population of less than 500,000 or by the department in a county having a population of 500,000 or more. The payment for an alcohol and other drug abuse assessment shall be in accordance with s. 48.361.

AB722, s. 4 Section 4. 48.295 (1) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB722,8,11 48.295 (1) After the filing of a petition and upon a finding by the court that reasonable cause exists to warrant a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4), the court may order any child coming within its jurisdiction to be examined as an outpatient by personnel in an approved treatment facility for alcohol and other drug abuse, by a physician, psychiatrist, or licensed psychologist, or by another expert appointed by the court holding at least a master's degree in social work or another related field of child development, in order that the child's physical, psychological, alcohol or other drug dependency, mental, or developmental condition may be considered. The court may also order a physical, psychological, mental, or developmental examination or an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 48.547 (4) of a parent, guardian, or legal custodian whose ability to care for a child is at issue before the court or of an expectant mother whose ability to control her use of alcohol beverages, controlled substances, or controlled substance analogs is at issue before the court. The court shall hear any objections by the child, the child's parents, guardian, or legal custodian, or the child's foster parent or other physical custodian described in s. 48.357 (2r) (b) to the request for such an examination or assessment before ordering the examination or assessment. The expenses of an examination, if approved by the court, shall be paid by the county of the court ordering the examination in a county having a population of less than 500,000 or by the department in a county having a population of 500,000 or more. The payment for an alcohol and other drug abuse assessment shall be in accordance with s. 48.361.

AB722, s. 5 Section 5. 48.295 (3) of the statutes is amended to read:

AB722,8,17 48.295 (3) If the child, the child's parent or, the expectant mother, or the child's foster parent, treatment foster parent, or other physical custodian described in s. 48.357 (2r) (b) objects to a particular physician, psychiatrist, licensed psychologist, or other expert as required under this section, the court shall appoint a different physician, psychiatrist, psychologist, or other expert as required under this section.

AB722, s. 6 Section 6. 48.295 (3) of the statutes, as affected by 2009 Wisconsin Act .... (this act), is repealed and recreated to read:

AB722,8,24 48.295 (3) If the child, the child's parent, the expectant mother, or the child's foster parent or other physical custodian described in s. 48.357 (2r) (b) objects to a particular physician, psychiatrist, licensed psychologist, or other expert as required under this section, the court shall appoint a different physician, psychiatrist, psychologist, or other expert as required under this section.

AB722, s. 7 Section 7. 48.33 (5) of the statutes is amended to read:

AB722,9,15 48.33 (5) Identity of foster parent or treatment foster parent; confidentiality. If the report recommends placement in a foster home or a treatment foster home, and the name of the foster parent or treatment foster parent is not available at the time the report is filed, the agency shall provide the court and the child's parent or guardian with the name and address of the foster parent or treatment foster parent within 21 days after the dispositional order is entered. If the foster parent or treatment foster parent has consented under s. 48.62 (3m) to the disclosure of that information to the child's parent or guardian or to any other adult relative of the child, the agency shall also provide that information to that parent, guardian, or adult relative within those 21 days, except that the court may order the information withheld from the child's that parent or, guardian, or adult relative if the court finds that disclosure would result in imminent danger to the child or to the foster parent or treatment foster parent. After notifying the child's that parent or, guardian, or adult relative, the court shall hold a hearing prior to ordering the information withheld.

AB722, s. 8 Section 8. 48.33 (5) of the statutes, as affected by 2009 Wisconsin Acts 28 and .... (this act), is repealed and recreated to read:

AB722,9,25 48.33 (5) Identity of foster parent; confidentiality. If the report recommends placement in a foster home and the name of the foster parent is not available at the time the report is filed, the agency shall provide the court with the name and address of the foster parent within 21 days after the dispositional order is entered. If the foster parent has consented under s. 48.62 (3m) to the disclosure of that information to the child's parent or guardian or to any other adult relative of the child, the agency shall also provide that information to that parent, guardian, or adult relative within those 21 days, except that the court may order the information withheld from that parent, guardian, or adult relative if the court finds that disclosure would result in imminent danger to the child or to the foster parent. After notifying that parent, guardian, or adult relative, the court shall hold a hearing prior to ordering the information withheld.

AB722, s. 9 Section 9. 48.355 (2) (b) 2. of the statutes is amended to read:

AB722,10,22 48.355 (2) (b) 2. If the child is placed outside the home, the name of the place or facility, including transitional placements, where the child shall will be cared for or treated, except that if the placement is a foster home or treatment foster home and the name and address of the foster parent or treatment foster parent is not available at the time of the order, the name and address of the foster parent or treatment foster parent shall be furnished to the court and the parent within 21 days of the order. If the foster parent or treatment foster parent has consented under s. 48.62 (3m) to the disclosure of that information to the child's parent or guardian or to any other adult relative of the child, the agency shall also provide that information to that parent, guardian, or adult relative within those 21 days, except that the judge may order that information to be withheld from that parent, guardian, or adult relative as provided in this subdivision. If, after a hearing on the issue with due notice to the parent or, guardian, or adult relative, the judge finds that disclosure of the identity of the foster parent or treatment foster parent would result in imminent danger to the child, the foster parent, or the treatment foster parent, the judge may order the name and address of the prospective foster parents or treatment foster parents withheld from the parent or, guardian, or adult relative.

AB722, s. 10 Section 10. 48.355 (2) (b) 2. of the statutes, as affected by 2009 Wisconsin Acts 28 and .... (this act), is repealed and recreated to read:

AB722,11,15 48.355 (2) (b) 2. If the child is placed outside the home, the name of the place or facility, including transitional placements, where the child will be cared for or treated, except that if the placement is a foster home and the name and address of the foster parent is not available at the time of the order, the name and address of the foster parent shall be furnished to the court within 21 days after the order. If the foster parent has consented under s. 48.62 (3m) to the disclosure of that information to the child's parent or guardian or to any other adult relative of the child, the agency shall also provide that information to that parent, guardian, or adult relative within those 21 days, except that the judge may order that information to be withheld from that parent, guardian, or adult relative as provided in this subdivision. If, after a hearing on the issue with due notice to the parent, guardian, or adult relative, the judge finds that disclosure of the identity of the foster parent would result in imminent danger to the child or the foster parent, the judge may order the name and address of the prospective foster parents withheld from the parent, guardian, or adult relative.

AB722, s. 11 Section 11. 48.357 (1) (am) 1. of the statutes, as affected by 2009 Wisconsin Act 94, section 80, is amended to read:

AB722,12,10 48.357 (1) (am) 1. If the proposed change in placement involves any change in placement other than a change in placement specified in par. (c), the person or agency primarily responsible for implementing the dispositional order, the district attorney, or the corporation counsel shall cause written notice of the proposed change in placement to be sent to the child, the parent, guardian, and legal custodian of the child, any foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) of the child, the child's court-appointed special advocate, and, if the child is an Indian child who has been removed from the home of his or her parent or Indian custodian, the Indian child's Indian custodian and tribe. If the child is the expectant mother of an unborn child under s. 48.133, written notice shall also be sent to the unborn child by the unborn child's guardian ad litem. If the change in placement involves an adult expectant mother of an unborn child under s. 48.133, written notice shall be sent to the adult expectant mother and the unborn child by the unborn child's guardian ad litem. The notice shall contain the name and address of the new placement, the reasons for the change in placement, a statement describing why the new placement would be in the best interest of the child, and a statement of how the new placement satisfies objectives of the treatment plan ordered by the court.

AB722, s. 12 Section 12. 48.357 (1) (am) 1. of the statutes, as affected by 2009 Wisconsin Act 94, section 81, and 2009 Wisconsin Act .... (this act), is repealed and recreated to read: